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[ { "docid": "22835022", "title": "", "text": "by the appellate court. After an exhaustive discussion of the inability of courts of appeals to arrive at a consensus about how to review the granting or denial of a motion for a preliminary injunction, the court in Roland detailed the classic hornbook elements of a proper preliminary injunction. As a threshold matter the movant must establish that there is “no adequate remedy at law,” a danger of “irreparable harm,” and some “likelihood of success on the merits.” As is well-documented in Roland, these are all terms that in the context of preliminary injunctions have acquired their own special meaning. See 746 F.2d at 386-88. Having gotten past these threshold inquiries the district court must somehow balance the nature and degree of the plaintiff’s injury, the likelihood of prevailing at trial, the possible injury to the defendant if the injunction is granted, and the wild card that is the “public interest.” See, e.g., Yakus v. United States, 321 U.S. 414, 440, 64 S.Ct. 660, 674, 88 L.Ed.2d 834 (1944). It is at this point of balancing that the approach of Roland and American Hospital first suggests a more explicit formula and discusses the role of the district judge in balancing the equities. a. The Roland and American Hospital Approach Roland and American Hospital adopted a “sliding scale” approach where the possibility of mistake would be minimized by weighing the costs of injunctive relief against the benefits. The benefit of injunctive relief can be determined by combining the probability of success on the merits with the magnitude of the harm to the plaintiff. “The more likely the plaintiff is to win, the less heavily need the balance of harms weigh in his favor; the less likely he is to win, the more need it weigh in his favor.” Roland, 749 F.2d at 387. See also Maxim’s Ltd. v. Badonsky, 772 F.2d 388, 391 (7th Cir.1985). This principle was stated in mathematical terms, cf. Judge Learned Hand’s opinion in United States v. Carroll Towing Co., 159 F.2d 169, 173 (2d Cir.1947), in American Hospital, at 593. “Grant the preliminary injunction if but" } ]

[ { "docid": "17691702", "title": "", "text": "as Maxim’s. This suit followed. At some point Badonsky decided that the full name would not be “Maxim’s de Paris” but rather “George Badonsky’s Maxim’s on Astor Street.” Maxim’s Limited, argued before the district court that it had a common law right to exclusive use of the name “Maxim’s” for a restaurant, and requested an injunction against the use of that name by Badonsky. The day after filing its complaint, Maxim’s Limited, moved for a preliminary injunction, and it is from the denial of the preliminary injunction that it now appeals. The decision to deny a preliminary injunction is within the discretion of the trial court, and will not be disturbed except for an abuse of that discretion. Roland Machinery Co. v. Dresser Industries, 749 F.2d 380, 390-91 (7th Cir.1984) (as amended); Wesley-Jessen Division v. Bausch & Lomb, Inc., 698 F.2d 862, 864 (7th Cir.1983). The district court must weigh four factors in deciding whether to grant or deny the injunction: (1) whether there is an adequate remedy at law (that is, whether interim harm caused by the activity to be enjoined can be completely offset by a subsequent award of damages or other legal relief); (2) whether any such irreparable harm to the plaintiff caused by a failure to enjoin the activity outweighs irreparable harm to the defendant caused by an injunction; (3) whether the plaintiff has some likelihood of success on the merits; and (4) whether grant of the injunction would disserve the public interest. Wesley-Jessen, supra, at 864. These factors are to be balanced, one against the other, so that where harm to the plaintiff significantly outweighs the harm to the defendant, and the legal remedy would not be adequate, less of a likelihood that plaintiff will prevail is required. Our review is a deferential one, and although we are not limited to determining whether the action of the trial court is without basis in reason, Roland Machinery, supra, at 390, neither may we replace the district court’s judgment with our own, id. The district court refused the preliminary injunction largely on the ground that Maxim’s Limited," }, { "docid": "11573036", "title": "", "text": "a preliminary injunction. We accelerated our consideration of the appeal because Dynamics had only till April 24 to decide whether to buy the shares tendered in response to its offer. We heard argument on April 23 and later that day affirmed the district judge’s orders, with a notation that an opinion explaining the grounds of our decision would follow. The main issues we must address are the lawfulness of CTS’s poison pill scheme, the district court’s compliance with a federal statute requiring that a state’s attorney general be notified that the constitutionality of a statute of his state is being challenged, the constitutionality of the new Indiana takeover statute under the supremacy clause and also under the commerce clause, the significance of the potential violation of the Clayton Act, and the adequacy of the disclosures made in the tender offer. Before taking up these issues we shall comment briefly on the procedural posture of the case in this court, an appeal from orders granting and denying requests for preliminary injunctions. As emphasized in our recent opinions, in different but compatible formulations, the task for a district judge asked to grant a preliminary injunction is to compare the irreparable harm to the plaintiff if the injunction is denied, weighted by the likelihood that the denial would be erroneous because the plaintiff will prevail in the plenary trial, with the irreparable harm to the defendant if the injunction is granted, weighted by the likelihood that the grant would be erroneous because the defendant, not the plaintiff, will prevail in the trial. See Lawson Products, Inc. v. Avnet, Inc., 782 F.2d 1429, 1433-34 (7th Cir.1986); American Hospital Supply Corp. v. Hospital Products Ltd., 780 F.2d 589, 593 (7th Cir.1986); Roland Machinery Co. v. Dresser Industries, Inc., 749 F.2d 380, 387-88 (7th Cir.1984). So, for example, the greater the probability that the plaintiff will win the case in the end, the less irreparable harm he need show relative to the defendant in order to get the preliminary injunction. If both parties are likely to suffer the same amount of irreparable harm, so far as" }, { "docid": "22923912", "title": "", "text": "will suffer considerable economic harm from this injunction. To establish secondary meaning (and the right to appropriate descriptive terms from the public domain) it should be requisite either to show substantial expenditures for advertising — a real investment in the claimed secondary meaning — or actual evidence that consumers associate the descriptive term with the product or service, or both. In lieu of consumer surveys, letters or conversations might be acceptable if genuinely relevant and produced in sufficient volume. Here none of these paths has been followed in any kind of persuasive way. We are thus blazing an uncertain trail, which may allow prior users of the most descriptive of terms to win wide-ranging injunctions with only nominal showings of either harm or confusion. If this case can be a winner, it is difficult to imagine one that could lose. In addition, I do not understand why a disclaimer would not do the job quite satisfactorily here. It is not necessary to crack walnuts with a sledgehammer. Any ill effects on the plaintiff of the defendant’s advertising could be remedied by disclaimer. I do not discount the trial court’s discretion in these matters, but I am not persuaded it can justify a preliminary injunction (for which no bond has been posted) here. I therefore respectfully dissent. . Evidence of irreparable harm to the plaintiff is concededly meager here. The balance of harms even seems to favor the defendant. Hence I question the alacrity with which the majority applies a “better than negligible” standard to the plaintiffs likelihood of success on the merits. A “better than negligible\" determination is not a sufficient basis in and of itself for the grant of a preliminary injunction. Rather, such a standard may figure in a sliding scale analysis, in which the balance of harms is the other variable. See Curtis v. Thompson, 840 F.2d 1291, 1296 n. 5 (7th Cir.1988); Roland Machinery Co. v. Dresser Indus., Inc., 749 F.2d 380, 387 (7th Cir.1984). Once a plaintiff does show a minimal probability of success on the merits, a district court should \"determine how likely that" }, { "docid": "17875215", "title": "", "text": "reconsideration following issuance of our opinion affirming the preliminary injunction against the first poison pill, 638 F.Supp. 802 (N.D.Ill.1986). Dynamics has appealed. The election for the board of directors was held on May 16. CTS’s board, which had campaigned on a platform of selling the company and had represented that the second poison pill was designed to maximize the price at which the company would be sold, won reelection by a narrow margin. As noted in our previous opinion, citing earlier decisions of this court, “the task for a district judge asked to grant a preliminary injunction is to compare the irrepara ble harm to the plaintiff if the injunction is denied, weighted by the likelihood that the denial would be erroneous because the plaintiff will prevail in the plenary trial, with the irreparable harm to the defendant if the injunction is granted, weighted by the likelihood that the grant would be erroneous because the defendant, not the plaintiff, will prevail in the trial.” 794 F.2d at 252. This “sliding scale” approach implies that if, so far as it is possible to determine, the irreparable harm that the plaintiff is likely to suffer from denial of the preliminary injunction is equal to that which the defendant is likely to suffer if the injunction is granted, likelihood of success on the merits becomes decisive, and the question is simply: who is likelier to win the case when and if it is tried on the merits — the plaintiff or the defendant? Id. Our previous opinion noted that the irreparable harms from granting or denying the preliminary injunction appeared to be in equipoise in this case, so that analysis would have to focus on the likelihood that Dynamics would prevail on the merits if its suit to invalidate the poison pill was tried. After pointing out that the controlling law was that of Indiana and that in matters of corporation law the Indiana courts normally take their cue from the Delaware courts, which are more experienced in such matters, we observed that while the board of directors of a corporation that is" }, { "docid": "17875222", "title": "", "text": "Co. v. Dresser Industries, Inc., 749 F.2d 380, 388-92 (7th Cir.1984). Where the balance of harms is equal and therefore drops out of the analysis — where the only issue is the plaintiff’s likelihood of winning when the case is tried — the scope of appellate review is similar to that of final judgments. The two opinions the district judge wrote in connection with Dynamics’ request for a preliminary injunction against the second poison pill contain a mixture of factual and legal determinations all feeding into her ultimate determination regarding the lawfulness of the pill. That determination is more tentative than if the case had been tried, because it is based on a less complete development of evidence than possible in a regular trial, but its ingredients are the same and — with issues of irreparable harm cancelled out — is a matter of finding facts and applying law, not of exercising discretion. In reviewing the decision, therefore, we must examine the procedures leading up to the adoption of the second poison pill and the terms of the pill, and, accepting all of the district judge’s findings of fact that are not clearly erroneous, we must determine whether she was justified in concluding that the infirmities that had led her and us to invalidate the first poison pill have been cured. Of course, if we cannot determine from the judge’s findings and conclusions, read against the record of the case, whether her findings of fact are clearly erroneous, then we must remand for further analysis; and this, as we shall see in due course, is the case here. The second poison pill was adopted in different circumstances and has different provisions from the first. The second was devised by the outside directors (constituted as a special committee) in consultation with the company’s investment advisor, Smith Barney. The district court found that unlike the board the first time around, the special committee did not start with the preconceived idea of preventing a takeover of CTS whether by Dynamics or any other person or firm that might make a tender offer; that" }, { "docid": "6156851", "title": "", "text": "F.2d at 812, we outlined the precise analytical framework which courts must employ in determining whether to grant preliminary relief. First, the party requesting preliminary relief must make a “clear showing” that she will suffer irreparable harm if the court denies her request. Direx Israel, 952 F.2d at 812-13. A failure to establish irreparable harm “is by itself a sufficient ground upon which to deny a preliminary injunction.” Gelco Corp. v. Conniston Partners, 811 F.2d 414, 418 (8th Cir.1987). Second, if that party establishes irreparable harm, “the next step then for the court to take is to balance the likelihood of irreparable harm to the plaintiff [from the failure to grant interim relief] against the likelihood of harm to the defendant [from the grant of such relief].” Direx Israel, 952 F.2d at 812 (inner quotations omitted). Third, if the balance tips decidedly in favor of the party requesting preliminary relief, “a preliminary injunction will be granted if the plaintiff has raised questions going to the merits so serious, substantial, difficult and doubtful, as to make them fair ground for litigation and thus more deliberate investigation.” Id. at 813. However, “[i]f the balance does not tip decidedly, there must be ‘a strong probability of success on the merits.’ ” Id. (quoting Frisch's Restaurant, Inc. v. Shoney’s, Inc., 759 F.2d 1261, 1270 (6th Cir.1985)). Fourth, the court must evaluate whether the public interest favors granting preliminary relief. On appeal, we review the lower court’s decision to grant or deny preliminary relief under the abuse of discretion standard. In undertaking this review, however, Congress did not intend “appellate courts to be mere rubber-stamps save for the rare cases when a district judge has misunderstood the law or transcended the bounds of reason.” Roland Machinery Co. v. Dresser Indus., 749 F.2d 380, 389 (7th Cir.1984). Thus, we have held: Particularly where the appeal is from a grant of preliminary injunction, which represents the exercise of a very far-reaching power, never to be indulged in except in a case clearly demanding it, the standard of appellate review must not be reduced to the largely meaningless" }, { "docid": "18749596", "title": "", "text": "district judge when he considers such a motion. Therefore, to properly understand our role on review, we must carefully analyze the process employed by the district court. As we noted in Lawson Products, 782 F.2d at 1436, the district judge, in considering a motion for preliminary injunction, must take a number of non-discretionary actions: (1) He must evaluate the traditional factors enumerated in the case law: whether there is an adequate remedy at law, a danger of irreparable harm, some likelihood of success on the merits. See Roland Machinery Co. v. Dresser Industries, Inc., 749 F.2d 380, 386-88 (7th Cir.1984). (2) He must make factual determinations on the basis of a fair interpretation of the evidence before the court. (3) He must draw legal conclusions in accord with a principled application of the law. “Once all the equitable factors are before the judge, however, a classic discretionary decision must be made involving how much weight to give individual components of the calculus and to what direction the balance of equity tips.” Lawson Products, 782 F.2d at 1436. This “classic discretionary decision” must, however, be a disciplined one which takes into consideration the early stage of the litigation. The “district court must somehow balance the nature and degree of the plaintiffs injury, the likelihood of prevailing at trial, the possible injury to the defendant if the injunction is granted, and the wild card that is the ‘public interest.’ ” Id. at 1433. This latter factor — the public interest — takes on special importance in constitutional cases such as this one where the outcome will undoubtedly affect countless persons. Cf. Ball Memorial Hospital, Inc. v. Mutual Hospital Insurance, Inc., 784 F.2d 1325, 1334 (7th Cir.1986). In exercising his “seasoned judgment,” Roland Machinery, 749 F.2d at 388, the district judge must keep in mind that, while preliminary injunctions are an interlocutory form of relief, they are also “an exercise of a very far-reaching power,” Warner Bros. Pictures, Inc. v. Gittone, 110 F.2d 292, 293 (3d Cir.1940) (per curiam), and, consequently, “one in which the stakes are sufficiently high to make mistakes very" }, { "docid": "12104902", "title": "", "text": "of fact and conclusions of law in support of its decision to grant or refuse preliminary injunctive relief. The ultimate decision, however, rests within the court’s discretion. Baja Contractors, 830 F.2d at 674; Lawson Products, Inc. v. Avnet, Inc., 782 F.2d 1429, 1436-37 (7th Cir.1986). The district court’s findings of fact are reviewed under the clearly erroneous standard of Fed.R.Civ.P. 52(a); with the legal conclusions subject to de novo review. Baja Contractors, 830 F.2d at 674; Manbourne, Inc. v. Conrad, 796 F.2d 884, 887 (7th Cir.1986); Lawson Products, 782 F.2d at 1437. “[A] factual or legal error may alone be sufficient to establish that the court ‘abused its discretion’ in making its final determination.... However, in the absence of such an error, the district judge’s weighing and balancing of the equities should be disturbed on appeal only in the rarest of cases.” Lawson Products, 782 F.2d at 1437. We review the district court’s denial of a preliminary injunction in the present case with these principles in mind. II. Discussion West Allis, as the party seeking a preliminary injunction, bears the burden of showing: (1) that it has no adequate remedy at law; (2) that it will suffer irreparable harm if the preliminary injunction is not issued; (3) that the irreparable harm it will suffer if the preliminary injunction is not granted outweighs the irreparable harm the defendant will suffer if the injunction is granted; (4) that it has a reasonable likelihood of prevailing on the merits; and (5) that the injunction will not harm the public interest. Baja Contractors, 830 F.2d at 675; Manbourne, Inc., 796 F.2d at 887; Roland Machinery Co. v. Dresser Industries, Inc., 749 F.2d 380, 386-88 (7th Cir.1984). Under the “sliding scale” approach adopted by this circuit, the likelihood of success that West Allis needs to show will vary inversely with the degree of harm it will suffer if the injunction is not granted. Illinois Psychological Ass’n v. Falk, 818 F.2d 1337, 1340 (7th Cir.1987); Brunswick Corp. v. Jones, 784 F.2d 271, 275 (7th Cir.1986); Roland Machinery Co., 749 F.2d at 387. If, however, “both parties" }, { "docid": "567636", "title": "", "text": "the scene, however, because of the way the prints are taken such use here is problematic. Further, the evidence does not reflect that this has ever happened in Wilmette. We conclude that the village fingerprint requirement at best only slightly serves some kind of a government interest, that it has the effect of chilling proper solicitation, and in fact is used by Wilmette for that very purpose. Id. at 7. II ANALYSIS A. The Applicable Standards 1. The standards that apply to a grant of a preliminary injunction are well established. Initially, the district court must consider a number of factors in deciding whether to grant a preliminary injunction: Before a preliminary injunction will issue, the movant must show, as a threshold matter, that: (1) they have no adequate remedy at law; (2) they will suffer irreparable harm if the injunction is not granted; and (3) they have some likelihood of success on the merits in the sense that their “chances are better than negligible.” Roland Machinery Co. v. Dresser Industries, Inc., 749 F.2d 380, 386-87 (7th Cir.1984); see also Lawson Products, Inc. v. Avnet, Inc., 782 F.2d 1429, 1433 (7th Cir.1986). If the movant can meet this threshold burden, the in quiry then becomes a “sliding scale” analysis of the harm to the parties and the public from the grant or denial of the injunction and the actual likelihood of success on the merits. Ping v. National Educ. Ass’n, 870 F.2d 1369, 1371 (7th Cir.1989) (emphasis in original). The standard that we apply to review the district court’s determination is “tailored to the various functions that the district court must perform in fulfillment of its responsibilities.” Thornton v. Barnes, 890 F.2d 1380, 1384 (7th Cir.1989). This court summarized this review as follows: [T]he preliminary injunction decision involves the resolution of a number of different issues, some of which are non-discretionary; others, like the final weighing and balancing of the equities, are classically left to the discretion of the district judge. Appellate review therefore must vary with the nature of the lower court decision. When a court of appeals considers" }, { "docid": "22923913", "title": "", "text": "defendant’s advertising could be remedied by disclaimer. I do not discount the trial court’s discretion in these matters, but I am not persuaded it can justify a preliminary injunction (for which no bond has been posted) here. I therefore respectfully dissent. . Evidence of irreparable harm to the plaintiff is concededly meager here. The balance of harms even seems to favor the defendant. Hence I question the alacrity with which the majority applies a “better than negligible” standard to the plaintiffs likelihood of success on the merits. A “better than negligible\" determination is not a sufficient basis in and of itself for the grant of a preliminary injunction. Rather, such a standard may figure in a sliding scale analysis, in which the balance of harms is the other variable. See Curtis v. Thompson, 840 F.2d 1291, 1296 n. 5 (7th Cir.1988); Roland Machinery Co. v. Dresser Indus., Inc., 749 F.2d 380, 387 (7th Cir.1984). Once a plaintiff does show a minimal probability of success on the merits, a district court should \"determine how likely that success is,” for the greater the likelihood of success, “the less heavily need the balance of harms weigh in [the plaintiffs] favor.” Id.; Brunswick Corp. v. Jones, 784 F.2d 271, 275 (7th Cir.1986)." }, { "docid": "17875220", "title": "", "text": "may still be entitled to the injunction if the irreparable harm to him from a denial would greatly exceed the irreparable harm to the defendant from a grant. The quoted language makes clear that the district judge did not think this such a case, and implies that she thought it a case where the irreparable harms were (as before) approximately equal. It is true that elsewhere she describes the irreparable harm to Dynamics as “slight.” Id. at 1182. But she never says the irreparable harm to CTS would be great. And her statement that the harm to Dynamics would be slight appears to have been based on her expectation that Dynamics would win the proxy fight (then two weeks away) — in which event, controlling the board as it would, it could waive the poison pill at will. In fact Dynamics lost the proxy fight, and the balance of harms is therefore as before. In any event, the ground on which the district judge denied the preliminary injunction had nothing to do with the balance of harms; it was simply that she thought Dynamics unlikely to prevail at trial — unlikely, that is, to succeed in invalidating the second poison pill. The scope of appellate review of a decision granting or denying a preliminary injunction depends on the ground of that decision. If it is based on a purely factual determination, we can reverse only if the determination is clearly erroneous; if on a purely legal determination, we can reverse if our view of the law is different from the district court’s, for review of legal determinations is plenary. But if the decision is based on the balance of harms, or on that balance together with the likelihood of success on the merits (the likelihood operating to weight the balance in favor of plaintiff or defendant in accordance with the sliding scale approach), we can reverse only if persuaded that the district court abused its discretion, that is, was not merely incorrect but unreasonable. See, e.g., Lawson Products, Inc. v. Avnet, Inc., 782 F.2d 1429, 1436-39 (7th Cir.1986); Roland Machinery" }, { "docid": "1264440", "title": "", "text": "injunction in connection with arbitration. Finally, TRRA claims that the bond that the district court required Gateway Eastern to post was inadequate as a matter of law to protect TRRA from potential loss. We evaluate each of these in turn. II ANALYSIS A. Propriety of Preliminary Injunction “This Court gives substantial deference to a district court’s decision to grant a preliminary injunction insofar as that decision involves the discretionary acts of weighing evidence or balancing equitable factors.” United States v. Baxter Healthcare Corp., 901 F.2d 1401, 1407 (7th Cir.1990). However, “the more purely legal conclusions made by a district court in granting a preliminary injunction are subject to de novo review.” Id. Several factors are relevant in determining whether to grant a preliminary injunction. As a threshold matter, the moving party must establish that it has some likelihood of success on the merits. If the movant does show some likelihood of success, the court must then determine how likely that success is, because this affects the balance of relative harms.... The more likely the plaintiff is to win, the less heavily need the balance of harms weigh in his favor; the less likely he is to win, the more need it weigh in his favor. Roland Mach. Co. v. Dresser Indus., 749 F.2d 380, 387 (7th Cir.1984). It also must demonstrate that it will suffer irreparable harm if preliminary relief is denied, and that it has no adequate remedy at law to compensate it for its losses. Finally, the court must also take into account the public interest, the effect that the grant or denial of the injunction will have on nonparties. Erickson v. Trinity Theatre, 13 F.3d 1061, 1067 (7th Cir.1994). We shall discuss those aspects of this analysis that are disputed by the parties. 1. Success on the Merits In order to prevail, Gateway Eastern must show some likelihood of success on the merits. TRRA contends that Gateway Eastern cannot show likelihood of success on the merits because Gateway Eastern is operating in violation of the agreement. TRRA maintains that the trackage agreement allows Gateway Eastern only “bridge”" }, { "docid": "22923867", "title": "", "text": "trial court’s grant (or denial) of a preliminary injunction is limited to the question of whether the court abused its discretion in granting the requested relief. Curtis v. Thompson, 840 F.2d 1291, 1296 (7th Cir.1988); Roland Machinery Company v. Dresser Industries, Inc., 749 F.2d 380, 384-85, 388-91 (7th Cir.1984); Hyatt Corp. v. Hyatt Legal Services, 736 F.2d 1153, 1156 (7th Cir.), cert. denied, 469 U.S. 1019, 105 S.Ct. 434, 83 L.Ed.2d 361 (1984). As we discussed in Lawson Products, Inc. v. Avnet, Inc., 782 F.2d 1429, 1436-38 (7th Cir.1986), our analysis of whether the trial judge abused his discretion entails the application of “mixed” standards: factual determinations are reviewed under the “clearly erroneous” standard, while legal conclusions are reviewed de novo. 782 F.2d at 1437. “But the ultimate weighing and balancing that makes up the decision whether to issue a preliminary injunction is highly discretionary [and is] given substantial deference. ... Thus our review is limited to determining ‘whether the judge exceeded the bounds of permissible choice in the circumstances, not what we would have done if we had been in his shoes.’ ” A.J. Canfield Co. v. Vess Beverages, Inc., 796 F.2d 903, 906 (7th Cir.1986) (quoting Roland Machinery, 749 F.2d at 390). In establishing its entitlement to a preliminary injunction, the IKC bears the burden of demonstrating: “(1) that it has no adequate remedy at law; (2) that it will suffer irreparable harm if the preliminary injunction is not issued; (3) that the irreparable harm it will suffer if the preliminary injunction is not granted is greater than the irreparable harm the defendant will suffer if the injunction is granted; (4) that it has a reasonable likelihood of prevailing on the merits; and (5) that the injunction will not harm the public interest.” Brunswick Corp. v. Jones, 784 F.2d 271, 273-74 (7th Cir.1986). We review the district court’s analysis of these factors for factual and legal error and rule on the propriety of the court’s grant of the injunction in light of the standard of review set forth. A. Likelihood of success on the merits In order to" }, { "docid": "18749595", "title": "", "text": "the other criteria for preliminary injunctive relief, the court held that money damages could adequately compensate the plaintiffs for their alleged lack of privacy. Moreover, held the court, the “balance of harms” tips strongly in favor of the defendant. If the injunction were granted, it is likely that “some child abuse would go undetected and some innocent lives unprotected.” This harm, concluded the district court, is much greater than the loss of privacy in cases where application of the hot-line criteria produces a false alarm. C. Standard of Review In reviewing the decision of a district court to grant or deny a preliminary injunction, this court has continued to invoke the phrase “abuse of discretion” in articulating the applicable standard. Lawson Products, Inc. v. Avnet, Inc., 782 F.2d 1429, 1438 (7th Cir.1986). However, we have also acknowledged that “the term ‘discretion’ has been sapped of its vitality through over-use and misuse,” id. at 1436, and, in the context of the preliminary injunction action, can only be understood by reference to the precise task before the district judge when he considers such a motion. Therefore, to properly understand our role on review, we must carefully analyze the process employed by the district court. As we noted in Lawson Products, 782 F.2d at 1436, the district judge, in considering a motion for preliminary injunction, must take a number of non-discretionary actions: (1) He must evaluate the traditional factors enumerated in the case law: whether there is an adequate remedy at law, a danger of irreparable harm, some likelihood of success on the merits. See Roland Machinery Co. v. Dresser Industries, Inc., 749 F.2d 380, 386-88 (7th Cir.1984). (2) He must make factual determinations on the basis of a fair interpretation of the evidence before the court. (3) He must draw legal conclusions in accord with a principled application of the law. “Once all the equitable factors are before the judge, however, a classic discretionary decision must be made involving how much weight to give individual components of the calculus and to what direction the balance of equity tips.” Lawson Products, 782 F.2d" }, { "docid": "567637", "title": "", "text": "386-87 (7th Cir.1984); see also Lawson Products, Inc. v. Avnet, Inc., 782 F.2d 1429, 1433 (7th Cir.1986). If the movant can meet this threshold burden, the in quiry then becomes a “sliding scale” analysis of the harm to the parties and the public from the grant or denial of the injunction and the actual likelihood of success on the merits. Ping v. National Educ. Ass’n, 870 F.2d 1369, 1371 (7th Cir.1989) (emphasis in original). The standard that we apply to review the district court’s determination is “tailored to the various functions that the district court must perform in fulfillment of its responsibilities.” Thornton v. Barnes, 890 F.2d 1380, 1384 (7th Cir.1989). This court summarized this review as follows: [T]he preliminary injunction decision involves the resolution of a number of different issues, some of which are non-discretionary; others, like the final weighing and balancing of the equities, are classically left to the discretion of the district judge. Appellate review therefore must vary with the nature of the lower court decision. When a court of appeals considers a preliminary injunction order, which should set forth the judge’s reasoning under Fed.R.Civ.P. 65(d), the factual determinations are reviewed under a clearly erroneous standard and the necessary legal conclusions are given de novo review. SEC v. Suter, 732 F.2d 1294, 1300 (7th Cir.1984); E. Remy Martin & Co. v. Shaw-Ross International Imports, 756 F.2d 1525, 1529 (11th Cir.1985). However, the ultimate evaluation and balancing of the equitable factors is a highly discretionary decision and one to which this court must give substantial deference. The variance in the standard of review expressed in Roland may, in part, be attributed to the existence of errors of law or fact. Clearly, a factual or legal error may alone be sufficient to establish that the court “abused its discretion” in making its final determination. Lawson Prods., Inc. v. Avnet, Inc., 782 F.2d 1429, 1437 (7th Cir.1986); see also Somerset House, Inc. v. Turnock, 900 F.2d 1012, 1014 (7th Cir.1990) (factual determinations reviewed on abuse of discretion standard). Based on these standards, “ ‘ “our review is limited to determining" }, { "docid": "23429434", "title": "", "text": "to describe the taste of its soda. Vess also argues that the $60,000 bond required of Canfield is inadequate. We affirm. I. STANDARD OF REVIEW Appellate review of preliminary injunction grants has been recently explained by this Court, see Lawson Products Inc. v. Avnet, Inc., 782 F.2d 1429, 1436-1438 (7th Cir.1986); American Hosp. Supply v. Hospital Products Ltd., 780 F.2d 589 (7th Cir.1986). The standard of review is extremely deferential, typically stated as abuse of discretion. Roland Machinery Corp. v. Dresser Indus., Inc., 749 F.2d 380, 384-385, 388-391 (7th Cir.1984). As was discussed in Lawson, the review of a grant of preliminary injunction is mixed. Factual determinations are reviewed under a clearly erroneous standard; legal conclusions are reviewed de novo. 782 F.2d at 1437. But the ultimate weighing and balancing that makes up the decision whether to issue a preliminary injunction is highly discretionary given substantial deference. Id. Thus our review is limited to determining “whether the judge exceeded the bounds of permissible choice in the circumstances, not what we would have done if we had been in his shoes.” 749 F.2d at 390. The district court must evaluate the case under a well-delineated four-part test; we will review that court’s analysis under that test for factual and legal error. See Roland, 749 F.2d at 388-391; Lawson, 782 F.2d at 1437; Brunswick Corp. v. Jones, 784 F.2d 271, 274 n. 2 (7th Cir.1986). Before granting a preliminary injunction the district court must have evidence before it through which the plaintiff has demonstrated the following: (1) no adequate remedy at law and irreparable harm; (2) “some” likelihood of success on the merits; (3) the balance of relative harms weighs in its favor; and (4) the public interest will not be disserved if the injunction issues. Roland, 749 F.2d at 386-388. II. LIKELIHOOD OF SUCCESS In order to prevail on the merits in an action under Section 43(a) of the Lanham Act, a plaintiff must show a valid trademark and a likelihood of confusion on the part of the public. The district court found that Canfield had demonstrated a “substantial” likelihood of" }, { "docid": "18597447", "title": "", "text": "preliminary injunction is highly discretionary [and] given substantial deference.” A.J. Canfield Co. v. Vess Beverages, Inc., 796 F.2d 903, 906 (7th Cir.1986); Lawson Products, Inc. v. Avnet, Inc., 782 F.2d 1429, 1437 (7th Cir.1986). Our role is limited to determining “whether the judge exceeded the bounds of permissible choice in the circumstances, not what we would have done if we had been in his shoes.” Roland Machinery Co. v. Dresser Industries, Inc., 749 F.2d 380, 390 (7th Cir.1984). The discretion exercised by the district judge is measured against several prerequisites: 1) the plaintiffs have no adequate remedy at law and will be irreparably harmed if the injunction does not issue; 2) the threatened injury to plaintiffs outweighs the threatened harm the injunction may inflict on the defendant; 3) the plaintiffs have at least a reasonable likelihood of success on the merits; and 4) the granting of a preliminary injunction will not disserve the public interest. Fox Valley Harvestore, Inc. v. A.O. Smith Harvestore Products, Inc., 545 F.2d 1096, 1097 (7th Cir.1976). Of these factors, the likelihood of success generally weighs most heavily in a court’s calculus. As this circuit concluded in O’Connor v. Board of Education, 645 F.2d 578, 580 (7th Cir.), cert. denied, 454 U.S. 1084, 102 S.Ct. 641, 70 L.Ed.2d 619 (1981), “The likelihood of success serves as a threshold requirement. ... [I]f this factor is unsatisfied, and if the plaintiff has not shown irreparable injury, the court need go no further in denying the preliminary injunction.” A successful showing of a likelihood of success is strong evidence an injunction should issue. See Roland Machinery Co. v. Dresser Industries, 749 F.2d at 387 (“The more likely the plaintiff is to win, the less heavily need the balance of harms weigh in his favor; the less likely he is to win, the more need it weigh in his favor.”). II. The party seeking a preliminary injunction has the burden of establishing, with reasonable certainty, that he will succeed at the final hearing. American Hospital Association v. Harris, 625 F.2d 1328, 1331 (7th Cir.1980). The district court found it likely" }, { "docid": "17875221", "title": "", "text": "of harms; it was simply that she thought Dynamics unlikely to prevail at trial — unlikely, that is, to succeed in invalidating the second poison pill. The scope of appellate review of a decision granting or denying a preliminary injunction depends on the ground of that decision. If it is based on a purely factual determination, we can reverse only if the determination is clearly erroneous; if on a purely legal determination, we can reverse if our view of the law is different from the district court’s, for review of legal determinations is plenary. But if the decision is based on the balance of harms, or on that balance together with the likelihood of success on the merits (the likelihood operating to weight the balance in favor of plaintiff or defendant in accordance with the sliding scale approach), we can reverse only if persuaded that the district court abused its discretion, that is, was not merely incorrect but unreasonable. See, e.g., Lawson Products, Inc. v. Avnet, Inc., 782 F.2d 1429, 1436-39 (7th Cir.1986); Roland Machinery Co. v. Dresser Industries, Inc., 749 F.2d 380, 388-92 (7th Cir.1984). Where the balance of harms is equal and therefore drops out of the analysis — where the only issue is the plaintiff’s likelihood of winning when the case is tried — the scope of appellate review is similar to that of final judgments. The two opinions the district judge wrote in connection with Dynamics’ request for a preliminary injunction against the second poison pill contain a mixture of factual and legal determinations all feeding into her ultimate determination regarding the lawfulness of the pill. That determination is more tentative than if the case had been tried, because it is based on a less complete development of evidence than possible in a regular trial, but its ingredients are the same and — with issues of irreparable harm cancelled out — is a matter of finding facts and applying law, not of exercising discretion. In reviewing the decision, therefore, we must examine the procedures leading up to the adoption of the second poison pill and the" }, { "docid": "7711712", "title": "", "text": "The traditional standard for granting a preliminary injunction requires the plaintiff to show that in the absence of its issuance he will suffer irreparable injury and also that he is likely to prevail on the merits. Id. at 931, 95 S.Ct. at 2568. The decision to grant or deny preliminary injunctive relief is committed to the sound discretion of the district judge; there is no “right” to obtain a preliminary injunction. Naked City, 667 F.Supp. 1252. See also A.J. Canfield Co. v. Vess Beverages, Inc., 796 F.2d 903, 905-06 (7th Cir.1986); Adams v. Attorney Registration and Disciplinary Commission of the Supreme Court of Illinois, 801 F.2d 968, 971 (7th Cir.1986); Amoco Production Co. v. Village of Gambell, — U.S. -, 107 S.Ct. 1396, 1402, 94 L.Ed.2d 542 (1987). In considering a motion for preliminary injunction, the district court must evaluate the four required factors as listed above, must make factual determinations on the basis of a fair interpretation of the evidence before the court, and must draw legal conclusions in accord with a principled application of the law. Darryl H. v. Coler, 801 F.2d 893, 898 (7th Cir.1986) citing Lawson Products, Inc. v. Avnet, Inc., 782 F.2d 1429, 1438 (7th Cir.1986); see also Roland Machinery Co. v. Dresser Industries, Inc., 749 F.2d 380, 386-388 (7th Cir.1984). The “likelihood of success factor” is to be balanced against the “balance of harm factor.” BeerMart, 633 F.Supp. at 1104 citing Lawson, 782 F.2d at 1434. The more heavily the balance of harm weighs in favor of the plaintiff, the degree with which the plaintiff must demonstrate likelihood of success on the merits decreases and vice versa. Id. None of the four factors is controlling; the court must weigh them all together in an attempt to reach a just result, that will maintain the status quo pending final resolution on the merits and that will avoid the error that is more economically costly in the particular circumstances. Id. 1. Likelihood of Success on the Merits Plaintiff sets forth two distinct theories of federal law to support its claim. Each will be discussed separately to" }, { "docid": "7456110", "title": "", "text": "magistrate, denied the motion. According to the district court, a preliminary injunction would be inappropriate because the plaintiffs have an adequate remedy at law. Specifically, the court found that the plaintiffs would be able to recoup any money unconstitutionally collected by the unions in the form of damages. The district court also refused to stay the state court proceedings pending the outcome of this appeal. The plaintiffs have appealed both decisions and we affirm, although on grounds other than those relied upon by the district court. II. A. Before a preliminary injunction will issue, the movant must show, as a threshold matter, that: (1) they have no adequate remedy at law; (2) they will suffer irreparable harm if the injunction is not granted; and (3) they have some likelihood of success on the merits in the sense that their “chances are better than negligible.” Roland Machinery Co. v. Dresser Industries, Inc., 749 F.2d 380, 386-87 (7th Cir.1984); see also Lawson Products, Inc. v. Avnet, Inc., 782 F.2d 1429, 1433 (7th Cir.1986). If the movant can meet this threshold burden, the inquiry then becomes a “sliding scale” analysis of the harm to the parties and the public from the grant or denial of the injunction and the actual likelihood of success on the merits. In particular, and keeping in mind that the public interest may become important in a given case, the “more likely the plaintiff is to win, the less heavily need the balance of harms weigh in his favor [in order to get the injunction]; the less likely he is to win, the more need it weigh in his favor.” Roland Machinery, 749 F.2d at 387. In this case, the district court determined that it did not have to reach the sliding scale analysis because the plaintiffs had failed to make the threshold showing that they would suffer irreparable harm from a denial of the injunction. We agree that there is no need to reach the sliding scale analysis in this case but we do not reach the question of whether the district court was correct in finding no" } ]

[ { "docid": "1892462", "title": "", "text": "objectors, most notably Anne Webber, speaking on behalf of the Commission for Looted Art in Europe, observed that the broad scope of the releases initially contemplated in connection with the Looted Assets Class might pose an obstacle to the recovery of artworks and other items of specific property looted by the Nazis and currently in the possession of a Swiss releasee. A careful reading of the Settlement Agreement alone should allay a part of these concerns. Specifically, under the Settle ment Agreement, the definition of “Releas-ees” includes governmental entities and business concerns; the definition does not cover private foundations, private museums or individual collectors. Settlement Agreement ¶ 1. This means that the Settlement Agreement does not impose any obstacle to the recovery of looted art from a significant group of potential collectors. While the Settlement Agreement does preclude the recovery of looted art from Swiss businesses and governmental' agencies, the legal and practical obstacles to the recovery of art from this group are already substantial, if not insurmountable. Unlike New York law, for example, Swiss law permits a purchaser in good faith to acquire valid title to stolen art. Swiss law also presumes that a purchaser acts in good faith, and a plaintiff seeking to reclaim stolen property has the burden of establishing that a purchaser did not act in good faith. Autocephalous Greek-Orthodox Church of Cyprus v. Goldberg & Feldman Fine Arts, Inc., 717 F.Supp. 1374, 1400 (S.D.Ind.1989), aff'd, 917 F.2d 278 (7th Cir.1990). Indeed, Switzerland has been described as “a country to which buyers of stolen art flock in order to claim Swiss law’s protection of buyers.” Steven A. Bibas, The Case Against Statutes of Limitations for Stolen Art, 103 Yale L.J. 2437, 2449 (1994) (citing Stanley Meisler, Art & Avarice, L.A. Times, Nov. 12, 1989, Magazine, at 8, 10-11 (describing the facts that gave rise to the Autocephalous case)). Under these circumstances, the releases granted under the Settlement Agreement added little to the protection already enjoyed by the releasees under Swiss law. In any event, the defendant banks have agreed to modify the original Settlement Agreement to" } ]

[ { "docid": "9546943", "title": "", "text": "Assuming, arguendo, that Indiana substantive law does not apply in this case, the Court next considers the issues under Swiss law. Under Swiss law, a purchaser of stolen property acquires title superior to that of the original owner only if he purchases the property in good faith. Tr. 19 (von Mehren). A bad faith purchaser of stolen property never acquires title. Id. at 20. As Professor von Mehren explained at trial, to conclude that a purchaser did not act in good faith, a court must either find that the purchaser actually knew that the seller lacked title, or find that “an honest and careful purchaser in the particular circumstances would have [had] doubts with respect to the capacity of the seller to transfer property rights.” Id. at 24. Swiss law presumes that a purchaser acts in good faith. Id. at 26. However, a plaintiff seeking to reclaim stolen property may overcome this presumption. Id. To do so he must show that suspicious circumstances surrounded the transaction which should have caused an honest and reasonably prudent purchaser to doubt the seller’s capacity to convey property rights. Id. If the plaintiff shows that the circumstances surrounding the transaction should have created such doubt, then the defendant purchaser has the burden of establishing his good faith. A purchaser establishes his good faith by showing that he took steps to inquire into the seller’s capacity to convey property rights and that such steps reasonably resolved such doubt. Id. 1. Suspicious Circumstances As previously set forth, under Swiss law, this Court must begin its analysis by presuming that Goldberg purchased the mosaics in good faith. The plaintiffs argue that they have overcome this presumption by showing that suspicious circumstances surrounded the sale of the mosaics sufficient to cause an honest and reasonably prudent purchaser in Goldberg’s position to doubt whether Dikman had the capacity to convey property rights. Therefore, plaintiffs contend, Goldberg cannot rest on the presumption that she purchased the mosaics in good faith. The Court agrees. Many suspicious circumstances surrounded the sale of the mosaics. First, Goldberg knew the mosaics came from an" }, { "docid": "3485010", "title": "", "text": "choice-of-law rules apply. S.A. Healy Co. v. Milwaukee Metro. Sewerage Dist., 50 F.3d 476, 478 (7th Cir.1995). “Because in Indiana statutes of limitations are procedural in nature, Indiana choice-of-law rules state that the statute of limitations of the forum state, Indiana, will apply.” Autocephalous Greek-Orthodox Church of Cyprus v. Goldberg & Feldman Fine Arts, Inc., 717 F.Supp. 1374, 1385 (S.D.Ind.1989) (citations omitted), aff'd, 917 F.2d 278 (7th Cir.1990). See also Miller v. Javitch, Block & Rathbone, 397 F.Supp.2d 991, 1002-03 (N.D.Ind.2005) (stating that “under Indiana law, statutes of limitation are procedural, rather than substantive, and are not subject to parties’ choice of law disputes”) (citing cases); McLaughlin Equip. Co. v. Servaas, No. IP98-127-C-T/K, 2004 WL 1629603, at *45-46 (S.D.Ind. Feb. 18, 2004) (applying Indiana’s choice of law rules including its statute of limitations to the plaintiffs state law claims, even though another state’s substantive law governed those claims); Bailey v. Skipperliner Indus., Inc., 278 F.Supp.2d 945, 952 (N.D.Ind.2003) (concluding that, under Indiana choice-of-law rules, statutes of limitation are procedural and applying an Indiana statute of limitation even though the substantive law of another state may apply to certain claims); Dart Indus., Inc. v. Adell, 517 F.Supp. 9, 10 (S.D.Ind.1980) (following the rule that the statute of limitations is a procedural matter under Indiana law and a federal court sitting in diversity should therefore apply Indiana’s limitations). Considering the potentially relevant Indiana statutes of limitation, the Indiana Supreme Court’s application of these statutes, and the substance of the waste claim asserted by the Plaintiffs, the Court finds that the Plaintiffs’ claim for waste regarding the Sturgis property (Count 28) is governed by the six-year statute of limitation in Indiana Code § 34-11-2-7, which applies to actions for use, rents, and profits of real property and for actions for injuries to property other than personal property. See Pflanz, 888 N.E.2d at 760 (“Claims for waste and negligence related to real property are governed by a six-year statute of limitation.”) (citing Ind. Code § 34-11-2-7). Indiana Code § 34-11-2-7 required the Plaintiffs to bring this claim within six years after the cause of" }, { "docid": "3200744", "title": "", "text": "Civil Code 83 (2009) (English translation). As noted, when the acquisition agreement was entered into, possession of the Painting had already been transferred to TBC pursuant to the loan agreement. Therefore, if the Baron had good title to the Painting when he sold it to TBC, then TBC became the lawful owner of the Painting through the acquisition agreement. TBC argues that the Baron had good title to convey because the Baron acquired good title to the Painting either through the Baron’s purchase of the Painting in 1976 from the Stephen Hahn Gallery in New York or through Switzerland’s law of acquisitive prescription. Since Spain applies the law of the situs for movable property, Spanish law would look to New York law to determine the effect of the 1976 conveyance in New York, and Swiss law to determine whether the Baron acquired title to the Painting when he possessed it in Switzerland between 1976 and 1992. Under New York law, “a thief cannot pass good title.” See Bakalar v. Vavra, 619 F.3d 136, 140 (2d. Cir. 2010) (citing Menzel v. List, 49 Misc.2d 300, 267 N.Y.S.2d 804 (N.Y. Sup. Ct. 1966)). “This means that, under New York law, ... absent other considerations an artwork stolen during World War II still belongs to the original owner, even if there have been several subsequent buyers and even if each of those buyers was completely unaware that she was buying stolen goods.” Id. (internal quotation marks omitted). Here, even if the Stephen Hahn Gallery (the gallery from which TBC alleges the Baron purchased the Painting) had no knowledge that the Nazis stole the Painting, the conveyance did not confer good title on the Baron under New York law. As noted, TBC also argues that the Baron acquired title to the Painting through the Swiss law of acquisitive prescription. Under Swiss law, to acquire title to movable property through acquisitive prescription, a person must possess the chattel in good faith for a five-year period. Swiss Civil Code Article 728. The Baron completed the five-year period of possession between 1976 and 1981. Even though the" }, { "docid": "9546954", "title": "", "text": "particular work of art has been listed as missing or stolen. Lowenthal Deposition 17. The cost is $25, which is billed to the requesting party. Id. Goldberg did not request that such a formal search be conducted, nor was she billed for any informal search IFAR may have conducted of its files in July 1988. Next, Goldberg testified that she telephoned customs offices in the United States, Switzerland, Germany, and Turkey. She cannot recall, however, the name of any person she allegedly contacted at any of these customs offices. She testified that she asked whether the mosaics had been reported as missing or stolen. Tr. 493-97. Her testimony is not corroborated by a single document sent to or received from any such customs office. In addition, on December 18, 1988, Goldberg prepared “an outline” of “the steps that we [Goldberg and Feldman] took and the knowledge we had of the pieces.” Tr. 567. No mention is made in this outline of any calls placed to or contacts made with U.S., Swiss, German, or Turkish Customs. Next, the Court will examine briefly the steps Goldberg failed to take in determining whether Dikman had the capacity to transfer property rights to the mosaics. First, and most significantly, Goldberg never contacted the Republic of Cyprus or the Church of Cyprus, even though she was told the mosaics came from an “extinct” church in northern Cyprus. Contacting Cyprus is the first logical and necessary step a potential purchaser should have taken to determine the provenance of the mosaics. The importance of contacting Cyprus was highlighted by Dr. Vikan during his direct examination: Q. Assuming that a prudent person did not want to walk away from this transaction, what, if anything, should that person have done to pursue the transaction? A. Call the Republic of Cyprus, the only thing you can do. Q. And why, in your view, is that the only thing you can do? A. Because the object is [from] there. I’ll use the metaphor of the smelly fish. The smelly fish is lying in front of you and it ha[s] Cyprus written" }, { "docid": "3485009", "title": "", "text": "exercise of ordinary diligence should have known of their alleged injury. By not bringing their claim for breach of contract regarding the Sturgis property until December 17, 2004, the Plaintiffs failed to bring this cause of action within six years of their accrual, and thus this claim is time-barred under Indiana Code § 34-11-2-7. The Court will, therefore, grant the Defendants’ Motion for Partial Summary Judgment as to Count 27 of the Plaintiffs’ First Amended Complaint. b. The Waste Claim Regarding the Sturgis Property (Count 28) The Plaintiffs dispute the Defendants’ argument that Michigan law supplies the applicable statute of limitation for their statutory waste claim related to the Sturgis property. The Plaintiffs contend that Indiana law supplies the applicable statute of limitation. On this issue, the Court agrees with the Plaintiffs that Indiana law supplies the statute of limitation for the Plaintiffs’ waste claim related to the Sturgis property. The basis for this Court subject-matter jurisdiction in this case is diversity of citizenship, and Indiana is the forum state for this litigation. Consequently, Indiana’s choice-of-law rules apply. S.A. Healy Co. v. Milwaukee Metro. Sewerage Dist., 50 F.3d 476, 478 (7th Cir.1995). “Because in Indiana statutes of limitations are procedural in nature, Indiana choice-of-law rules state that the statute of limitations of the forum state, Indiana, will apply.” Autocephalous Greek-Orthodox Church of Cyprus v. Goldberg & Feldman Fine Arts, Inc., 717 F.Supp. 1374, 1385 (S.D.Ind.1989) (citations omitted), aff'd, 917 F.2d 278 (7th Cir.1990). See also Miller v. Javitch, Block & Rathbone, 397 F.Supp.2d 991, 1002-03 (N.D.Ind.2005) (stating that “under Indiana law, statutes of limitation are procedural, rather than substantive, and are not subject to parties’ choice of law disputes”) (citing cases); McLaughlin Equip. Co. v. Servaas, No. IP98-127-C-T/K, 2004 WL 1629603, at *45-46 (S.D.Ind. Feb. 18, 2004) (applying Indiana’s choice of law rules including its statute of limitations to the plaintiffs state law claims, even though another state’s substantive law governed those claims); Bailey v. Skipperliner Indus., Inc., 278 F.Supp.2d 945, 952 (N.D.Ind.2003) (concluding that, under Indiana choice-of-law rules, statutes of limitation are procedural and applying an Indiana statute of" }, { "docid": "9546866", "title": "", "text": "obtained title to or right to possession of the mosaics. Under this analysis of Indiana law, it is unnecessary to consider whether Goldberg exercised good faith or due diligence in obtaining possession of the mosaics. In the alternative, the Court considers the issues under Swiss law. Under Swiss law, in certain situations a thief may sell and pass good title to stolen items to a good faith purchaser. Whether one qualifies as a good faith purchaser is determined by evaluating certain factors. These factors are evaluated to determine whether the purchaser knew that the seller lacked title, or whether an honest and careful purchaser would have had doubts with respect to the seller’s capacity to transfer property rights, and if so, then whether the purchaser reasonably inquired about the seller’s ability to pass good title. Evaluating those factors under the facts of this case, the Court concludes that Goldberg is not a good faith purchaser under Swiss law. This is so because suspicious circumstances surrounded the sale of the mosaics which should have caused an honest and reasonably prudent purchaser in Goldberg’s position to doubt whether the seller had the capacity to convey property rights, and because she failed to conduct a reasonable inquiry to resolve that doubt. Therefore, principally under Indiana law and alternatively under Swiss law, Goldberg never obtained good title to or the right to possession of the mosaics. The Church of Cyprus, the original and rightful owner of the mosaics, has requested and made a proper showing for the return of the mosaics. The mosaics are unique. The paramount significance of their existence is as part of the religious, artistic, and cultural heritage of the Church and the government of Cyprus, and as a part of the national unity of the Republic of Cyprus. Therefore, the Court orders that possession of the mosaics is awarded to the plaintiff, the Autocephalous Greek-Orthodox Church of Cyprus. Memorandum of Decision Trial of this action was to the Court on May 30 through June 6, 1989. This Memorandum of Decision is entered in accordance with Rule 52(a) of the Federal" }, { "docid": "17375868", "title": "", "text": "awarded possession of these extremely valuable mosaics to plaintiff-appellee, the Autocephalous Greek-Orthodox Church of Cyprus (“Church of Cyprus” or “Church”). Autocephalous Greek-Orthodox Church of Cyprus v. Goldberg & Feldman Fine Arts, Inc., 717 F.Supp. 1374 (S.D.Ind.1989). Defendants-appellants, Peg Goldberg and Goldberg & Feldman Fine Arts, Inc. (collectively “Goldberg”), claim that in so doing, the court committed various reversible errors. We affirm. I. Background In the early sixth century, A.D., a large mosaic was affixed to the apse of the Church of the Panagia Kanakaria (“Kanakaria Church”) in the village of Lythrankomi, Cyprus. The mosaic, made of small bits of colored glass, depicted Jesus Christ as a young boy in the lap of his mother, the Virgin Mary, who was seated on a throne. Jesus and Mary were attended by two archangels and surrounded by a frieze depicting the twelve apostles. The mosaic was displayed in the Kanakaria Church for centuries, where it became, under the practices of Eastern Orthodox Christianity, sanctified as a holy relic. It survived both the vicissitudes of history, see Autocephalous, 717 F.Supp. at 1377 (discussing the period of Iconoclasm during which many religious artifacts were destroyed), and, thanks to restoration efforts, the ravages of time. Testimony before Judge Noland established that the Kanakaria mosaic was one of only a handful of such holy Byzantine relics to survive into the twentieth century. Sadly, however, war came to Cyprus in the 1970s, from which the mosaic could not be spared. The Cypriot people have long been a divided people, approximately three-fourths being of Greek descent and Greek-Orthodox faith, the other quarter of Turkish descent and Muslem faith. No sooner had Cyprus gained independence from British rule in 1960 than this bitter division surfaced. Civil disturbances erupted between Greek and Turkish Cypriots, necessitating the introduction of United Nations peacekeeping forces in 1964. (U.N. forces still remain in Cyprus.) Through the 1960s, the Greek Cypriots, concentrated in the southern part of the island, became increasingly estranged from the Turkish Cypriots, concentrated in the north. The tensions erupted again in 1974, this time with more violent results. In July, 1974, the" }, { "docid": "9546865", "title": "", "text": "should be returned to the Church. The defendants, on the other hand, claim that export of the mosaics was authorized by Turkish Cypriot officials, and that in any event Goldberg should be awarded the mosaics because she purchased them in good faith and without information or reasonable notice that they were stolen. Having heard and reviewed all the evidence in the case, the Court concludes that possession of the mosaics must be awarded to the plaintiff, the Autocephalous Greek-Orthodox Church of Cyprus. The Court concludes that because the place where the mosaics were purchased, Switzerland, has an insignificant relationship to this suit, and because Indiana has greater contacts and a more significant relationship to this suit, the substantive law of the state of Indiana should apply to this case. Under Indiana law, a thief obtains no title to or right to possession of stolen items. Therefore, a thief cannot pass any right of ownership of stolen items to subsequent purchasers. Because the mosaics were stolen from the rightful owner, the Church of Cyprus, Goldberg never obtained title to or right to possession of the mosaics. Under this analysis of Indiana law, it is unnecessary to consider whether Goldberg exercised good faith or due diligence in obtaining possession of the mosaics. In the alternative, the Court considers the issues under Swiss law. Under Swiss law, in certain situations a thief may sell and pass good title to stolen items to a good faith purchaser. Whether one qualifies as a good faith purchaser is determined by evaluating certain factors. These factors are evaluated to determine whether the purchaser knew that the seller lacked title, or whether an honest and careful purchaser would have had doubts with respect to the seller’s capacity to transfer property rights, and if so, then whether the purchaser reasonably inquired about the seller’s ability to pass good title. Evaluating those factors under the facts of this case, the Court concludes that Goldberg is not a good faith purchaser under Swiss law. This is so because suspicious circumstances surrounded the sale of the mosaics which should have caused an" }, { "docid": "9546864", "title": "", "text": "MEMORANDUM OF DECISION AND ORDER NOLAND, District Judge. Summary of Decision In this case the Court is asked to decide the right of possession as between the plaintiffs, the Autocephalous Greek-Orthodox Church of Cyprus (“Church of Cyprus”) and the Republic of Cyprus, and the defendants, Peg Goldberg (“Goldberg”) and Goldberg & Feldman Fine Arts, Inc., of four Byzantine mosaics created in the early sixth century. The mosaics, made of small chips of colored glass, were originally affixed to and for centuries remained in a church in Cyprus, a small island in the Mediterranean. In 1974, Turkish military forces invaded Cyprus and seized control of northern Cyprus, including the region where the church is located. At some point in the latter 1970s, during the Turkish military occupation of northern Cyprus, the mosaics were removed from their hallowed sanctuary. The plaintiffs claim that the Church of Cyprus has never intended to relinquish ownership of the mosaics, that the mosaics were improperly removed without the authorization of the Church or the Republic of Cyprus, and that the mosaics should be returned to the Church. The defendants, on the other hand, claim that export of the mosaics was authorized by Turkish Cypriot officials, and that in any event Goldberg should be awarded the mosaics because she purchased them in good faith and without information or reasonable notice that they were stolen. Having heard and reviewed all the evidence in the case, the Court concludes that possession of the mosaics must be awarded to the plaintiff, the Autocephalous Greek-Orthodox Church of Cyprus. The Court concludes that because the place where the mosaics were purchased, Switzerland, has an insignificant relationship to this suit, and because Indiana has greater contacts and a more significant relationship to this suit, the substantive law of the state of Indiana should apply to this case. Under Indiana law, a thief obtains no title to or right to possession of stolen items. Therefore, a thief cannot pass any right of ownership of stolen items to subsequent purchasers. Because the mosaics were stolen from the rightful owner, the Church of Cyprus, Goldberg never" }, { "docid": "22865985", "title": "", "text": "in southern Germany for safekeeping during World War II. DeWeerth’s sister discovered that the painting was missing in 1945, after the departure of American soldiers who had been quartered in her home. The Monet resurfaced in 1956, at which time Wildenstein & Co. acquired it from a Swiss art dealer. Baldinger subsequently purchased the painting from Wildenstein in 1957 in undisputed good faith. In 1982, DeWeerth discovered that Bal-dinger was in possession of the Monet and demanded its return. When Baldinger refused, DeWeerth promptly commenced a diversity action to recover it. Baldinger in turn brought a third-party action against Wildenstein & Co. which was subsequently severed pursuant to Fed.R.Civ.P. 42(b). In April 1987, after a bench trial, Judge Broder-ick found that DeWeerth had established a superior right to possession of the Monet and issued a ruling in her favor. 658 F.Supp. 688 (S.D.N.Y.1987). The district court specifically rejected Baldinger’s two principal defenses of limitations and laches. The district court concluded that the three-year statute of limitations applicable to this action, see N.Y.Civ. Prae.L. & R. § 214(3) (McKinney 1990), did not begin to run until Baldinger refused DeWeerth’s demand for the painting. In answer to Baldinger’s assertion of laches, the district court determined that DeWeerth had been reasonably diligent in the pursuit of the Monet after 1945 and that Baldinger had not been prejudiced by any delay in the demand for the painting’s return. The district court ordered Baldinger to deliver the painting to DeWeerth. In December 1987, another panel of this court reversed the district court’s judgment on the ground that New York limitations law required a showing of reasonable diligence in locating stolen property and that DeWeerth had failed to make such a showing. 836 F.2d 103 (2d Cir.1987). We found it unnecessary to consider Baldinger’s alternative arguments that DeWeerth was guilty of laches and that she had failed to prove superior title. On February 5, 1988, we denied DeWeerth’s petition for a rehearing, and on February 19, 1988, our mandate directing that the judgment in favor of DeWeerth be reversed was filed in the district court. On" }, { "docid": "3200746", "title": "", "text": "Baron exhibited the Painting during a tour of Australia and New Zealand in 1979 and 1981, TBC’s Swiss law expert stated that this exhibition abroad “did not create a legally relevant interruption, since the Painting was bound to return to [Switzerland].” In briefing to this Court, the Cas-sirers do not dispute that the Baron possessed the Painting for a sufficient amount of time. However, the Baron acquired title through acquisitive prescription only if he possessed the Painting in good faith. The Cassirers assert there is a triable issue of fact as to whether the Baron possessed the Painting in good faith. Swiss law presumes good faith. See Swiss Civil Code Article 3.1. But good faith can be rebutted by showing that a person “failed to exercise the diligence required by the circumstances.” See Swiss Civil Code Article 3.2. According to Dr. Wolfgang Ernst, TBC’s Swiss law expert, the finding of good faith or bad faith in an individual case is considered to be an issue of fact. In determining whether a purchaser acted in good faith or not, the Swiss Supreme Court has considered factors such as: (1) whether the purchaser should have considered the stolen or looted origin of the object at least as a possibility; (2) the fact that specific circumstances, such as war, required a high degree of attention; and (3) the general public knowledge of the circumstances in which the works of art were taken from their legitimate owners. See Paul Rosenberg v. Theodore Fisher et al., Swiss Supreme Court June 3, 1948. Thus, a good faith purchaser is one who is honestly and reasonably convinced that the seller is entitled to transfer ownership. After reviewing the record developed before the district court, we conclude that there is a triable issue of fact as to the Baron’s good faith. As noted in Part III.C, the Stephen Hahn Gallery from which the Baron purchased the Painting sold at least one other work looted by the Nazis. William Smith, the Cassirers’ expert in European paintings, stated that the $275,000 price the Baron paid for the Pissarro in 1976" }, { "docid": "9546942", "title": "", "text": "significance whether Aydin Dikman originally stole the mosaics, or who originally stole them. Further, it matters not whether Goldberg purchased the mosaics from Dikman alone, or from Dikman, van Rijn, and Fitzgerald, or from only van Rijn and Fitzgerald. The evidence of theft and chain of possession under the facts of this case lead only to the conclusion that Goldberg came into possession of stolen property. Under Indiana law, she never obtained any title or right to possession. Therefore, the Court concludes that the defendants are in wrongful possession of the mosaics. Under Indiana law, the Court concludes that the plaintiffs have made credible and persuasive showings on the elements necessary for the replevin of personal property. The Indiana cases holding that a thief obtains no title to stolen property recognize a long-standing rule. The cases establish law which increases in precedental value over time. As the plaintiffs have proven their case for replevin, the Court concludes that possession of the mosaics must be awarded to the plaintiff Church of Cyprus. B. Swiss Substantive Law Assuming, arguendo, that Indiana substantive law does not apply in this case, the Court next considers the issues under Swiss law. Under Swiss law, a purchaser of stolen property acquires title superior to that of the original owner only if he purchases the property in good faith. Tr. 19 (von Mehren). A bad faith purchaser of stolen property never acquires title. Id. at 20. As Professor von Mehren explained at trial, to conclude that a purchaser did not act in good faith, a court must either find that the purchaser actually knew that the seller lacked title, or find that “an honest and careful purchaser in the particular circumstances would have [had] doubts with respect to the capacity of the seller to transfer property rights.” Id. at 24. Swiss law presumes that a purchaser acts in good faith. Id. at 26. However, a plaintiff seeking to reclaim stolen property may overcome this presumption. Id. To do so he must show that suspicious circumstances surrounded the transaction which should have caused an honest and reasonably prudent" }, { "docid": "3200773", "title": "", "text": "have been aware of this decision: the CORA decision was cited in a 1974 book about Allied restitution laws published by a prestigious German publisher that received reviews in English language periodicals. . The Cassirers make a similar argument that TBC \"purloined” the Painting within the meaning of Article 1956 and therefore could not have acquired the Painting through acquisitive prescription. In support of this argument, the Cassirers cite Spanish authorities suggesting the term \"purloin” in Article 1956 can include knowing receipt of stolen goods. Therefore, whether interpreting \"encubridor” or \"purloin,” the Cassirers’ argument turns on whether someone who receives and benefits from goods known by him to be stolen is delayed in taking prescriptive title because of Article 1956. . Although TBC’s expert, Dr. Ernst, stated that he was \"not aware of any evidence that this price was conspicuously low so as to indicate eventual problems regarding the provenance/title situationf,]” we must view this conflict of evidence in the light most favorable to the non-moving party, the Cassir-ers. . As Dr. Petropoulos declared, \"In my opinion, if the Baron and TBC did not in fact know of the faulty provenance of the Painting and the high likelihood that they were trafficking in Nazi looted art, they were willfully blind to this risk and ignored very obvious 'red flags’ that no reasonable buyer would have ignored.” . The triable issue of fáct whether the Baron held the Painting in good faith is another reason TBC cannot establish as a matter of law that the Baron acquired title to the Painting through the 1976 conveyance from the Stephen Hahn Gallery. Even if the Painting was purchased in Switzerland and the conveyance was governed by Swiss law, under Swiss law, only a good faith purchaser can acquire title to a chattel through a conveyance. See Swiss Civil Code Article 936 (\"A person that has not acquired a chattel in good faith may be required by the previous possessor to return it at any time.”)." }, { "docid": "3200747", "title": "", "text": "faith or not, the Swiss Supreme Court has considered factors such as: (1) whether the purchaser should have considered the stolen or looted origin of the object at least as a possibility; (2) the fact that specific circumstances, such as war, required a high degree of attention; and (3) the general public knowledge of the circumstances in which the works of art were taken from their legitimate owners. See Paul Rosenberg v. Theodore Fisher et al., Swiss Supreme Court June 3, 1948. Thus, a good faith purchaser is one who is honestly and reasonably convinced that the seller is entitled to transfer ownership. After reviewing the record developed before the district court, we conclude that there is a triable issue of fact as to the Baron’s good faith. As noted in Part III.C, the Stephen Hahn Gallery from which the Baron purchased the Painting sold at least one other work looted by the Nazis. William Smith, the Cassirers’ expert in European paintings, stated that the $275,000 price the Baron paid for the Pissarro in 1976 “was approximately half of what would have been expected in a dealer sale, and that there is no reasonable explanation for this price other than dubious provenance.” Furthermore, Dr. Jonathan Petropoulos’ “red flags” analysis of the Painting’s background provides some evidence that suggests the Baron did not possess the Painting in good faith. To recap these alleged “red flags,” the Nazis looted many Pissar-ro paintings, which were a favorite among European Jewish collectors. Moreover, the Painting had a torn label on the back from a gallery in Berlin (the Cassirers’ gallery), but no documentation showing a voluntary transfer of the Painting out of Berlin. The published CORA decision identified Lilly’s ownership of the Painting. Also, Dr. Petro-poulos' stated that Ardelia Hall and Ely Maurer at the United States State Department collected CORA decision reports and warned museums, university art facilities, and art dealers about looted artworks entering the United States and that, had the Baron contacted these individuals about the Painting, the CORA decision would have been discovered. When the Baron purchased the Painting, the" }, { "docid": "12721235", "title": "", "text": "jurisdictions have adopted limitations rules that encourage property owners to search for their missing goods. In virtually every state except New York, an action for conversion accrues when a good-faith purchaser acquires stolen property; demand and refusal are unnecessary. See Restatement (Second) of Torts § 229 & comment h (1965); Prosser, Law of Torts 93-94 (5th ed. 1984); 51 Am.Jur.2d Limitation of Actions § 125; Federal Insurance Co. v. Fries, supra, 78 Misc.2d at 807, 355 N.Y.S.2d at 744. In these states, the owner must find the current possessor within the statutory period or his action is barred. Obviously, this creates an incentive to find one’s stolen property. It is true that New York has chosen to depart from the majority view. Nevertheless, the fact that plaintiff’s interpretation of New York law would exaggerate its inconsistency with the law of other jurisdictions weighs against adopting such a view. At least one other state has recently confronted the limitations problem in the context of stolen art and has imposed a duty of reasonable investigation. See O’Keefe v. Snyder, 83 N.J. 478, 416 A.2d 862 (1980); See also Comment, The Recovery of Stolen Art: Of Paintings, Statues and Statutes of Limitations, 27 U.C.L.A.L.Rev. 1122 (1980). In light of New York’s policy of favoring the good faith purchaser and dis couraging stale claims and the approach to actions to recover property in other jurisdictions, we hold that under New York law an owner’s obligation to make a demand without unreasonable delay includes an obligation to use due diligence to locate stolen property. The District Court found that DeWeerth undertook the following efforts to locate the Monet after she learned of its disappearance in 1945: In 1946 she reported the loss of the Monet to the military government then administering the Bonn-Cologne area after the end of the War. In 1948 she solicited the assistance of her lawyer, Dr. Heinz Frowein, in attempting to find and recover it. Plaintiff also made inquiries in 1955 of one Dr. Alfred Stange, known to Mrs. DeWeerth as an art expert. In 1957 she reported the Monet as" }, { "docid": "3200745", "title": "", "text": "Cir. 2010) (citing Menzel v. List, 49 Misc.2d 300, 267 N.Y.S.2d 804 (N.Y. Sup. Ct. 1966)). “This means that, under New York law, ... absent other considerations an artwork stolen during World War II still belongs to the original owner, even if there have been several subsequent buyers and even if each of those buyers was completely unaware that she was buying stolen goods.” Id. (internal quotation marks omitted). Here, even if the Stephen Hahn Gallery (the gallery from which TBC alleges the Baron purchased the Painting) had no knowledge that the Nazis stole the Painting, the conveyance did not confer good title on the Baron under New York law. As noted, TBC also argues that the Baron acquired title to the Painting through the Swiss law of acquisitive prescription. Under Swiss law, to acquire title to movable property through acquisitive prescription, a person must possess the chattel in good faith for a five-year period. Swiss Civil Code Article 728. The Baron completed the five-year period of possession between 1976 and 1981. Even though the Baron exhibited the Painting during a tour of Australia and New Zealand in 1979 and 1981, TBC’s Swiss law expert stated that this exhibition abroad “did not create a legally relevant interruption, since the Painting was bound to return to [Switzerland].” In briefing to this Court, the Cas-sirers do not dispute that the Baron possessed the Painting for a sufficient amount of time. However, the Baron acquired title through acquisitive prescription only if he possessed the Painting in good faith. The Cassirers assert there is a triable issue of fact as to whether the Baron possessed the Painting in good faith. Swiss law presumes good faith. See Swiss Civil Code Article 3.1. But good faith can be rebutted by showing that a person “failed to exercise the diligence required by the circumstances.” See Swiss Civil Code Article 3.2. According to Dr. Wolfgang Ernst, TBC’s Swiss law expert, the finding of good faith or bad faith in an individual case is considered to be an issue of fact. In determining whether a purchaser acted in good" }, { "docid": "17375909", "title": "", "text": "conducting an alternative analysis under Swiss substantive law. See Autocephalous, 717 F.Supp. at 1400-04. Briefly, the court concluded that the Church had superior title under Swiss law as well, because Goldberg could not claim valid title under the Swiss “good faith purchasers” notion having only made a cursory inquiry into the suspicious circumstances surrounding the sale of the mosaics. (Under Indiana law, such considerations are irrelevant because, except in very limited exceptions not applicable here, a subsequent purchaser (even a “good faith, bona fide purchaser for value”) who obtains an item from a thief only acquires the title held by the thief; that is, no title. 6 I.L.E. Conversion § 15.) As we state above, Indiana law controls every aspect of this action. Thus, Judge Noland’s extensive (and quite interesting) discussion of Swiss law, as well as Goldberg’s lengthy attack thereon, need not be reviewed. Cyprus adequately established the elements of replevin under Indiana law, on which ground alone we affirm the district court’s decision to award the possession of the mosaics to the Church of Cyprus. E. The Effect of the TFSC Edicts Finally, Goldberg argues that several decrees of the TFSC (the entity established in northern Cyprus by the Turkish military immediately after the 1974 invasion) divested the Church of title to the mosaics. Goldberg asks us to honor these decrees under the notion that in some instances courts in the United States can give effect to the acts of nonrecognized but “de facto ” regimes if the acts relate to purely local matters. See Restatement (Third) of the Foreign Relations Law of the United States (“Third Restatement”) § 205(3) (1987); Salimoff v. Standard Oil Co., 262 N.Y. 220, 186 N.E. 679 (1933) (Under Soviet law, U.S.S.R. nationalization decree effective to pass title to oil within Russia despite fact that U.S.S.R. was not yet recognized by the U.S.). The TFSC decrees at issue, all propagated in 1975, are principally these: 1) the “Abandoned Movable Property Law,” which provided that all movable property within the boundaries of the TFSC abandoned by its owner because of the owner’s “departure” from" }, { "docid": "17375908", "title": "", "text": "the property is unlawfully detained, and that the defendant wrongfully holds possession.” 25 I.L.E. Replevin § 42 (citations omitted). See also Snyder v. International Harvester Credit Corp., 147 Ind. App. 364, 261 N.E.2d 71, 78 (1970). Judge Noland applied these elements to the facts of this case and determined that Cyprus had met its burden as to each. Autocephalous, 717 F.Supp. at 1397-1400. Our review of this application of Indiana law to the facts convinces us that it is free of error: 1) the Kanakaria Church was and is owned by the Holy Archbishopric of the Church of Cyprus, a self-headed (hence “Autocephalous”) church associated with the Greek-Orthodox faith; 2) the mosaics were removed from the Kanakaria Church without the authorization of the Church or the Republic (even the TRNC’s unsuccessful motion to intervene claimed that the mosaics were improperly removed); and 3) Goldberg, as an ultimate purchaser from a thief, has no valid claim of title or right to possession of the mosaics. We note that Judge Noland again backstopped his conclusion, this time conducting an alternative analysis under Swiss substantive law. See Autocephalous, 717 F.Supp. at 1400-04. Briefly, the court concluded that the Church had superior title under Swiss law as well, because Goldberg could not claim valid title under the Swiss “good faith purchasers” notion having only made a cursory inquiry into the suspicious circumstances surrounding the sale of the mosaics. (Under Indiana law, such considerations are irrelevant because, except in very limited exceptions not applicable here, a subsequent purchaser (even a “good faith, bona fide purchaser for value”) who obtains an item from a thief only acquires the title held by the thief; that is, no title. 6 I.L.E. Conversion § 15.) As we state above, Indiana law controls every aspect of this action. Thus, Judge Noland’s extensive (and quite interesting) discussion of Swiss law, as well as Goldberg’s lengthy attack thereon, need not be reviewed. Cyprus adequately established the elements of replevin under Indiana law, on which ground alone we affirm the district court’s decision to award the possession of the mosaics to the Church" }, { "docid": "3200748", "title": "", "text": "“was approximately half of what would have been expected in a dealer sale, and that there is no reasonable explanation for this price other than dubious provenance.” Furthermore, Dr. Jonathan Petropoulos’ “red flags” analysis of the Painting’s background provides some evidence that suggests the Baron did not possess the Painting in good faith. To recap these alleged “red flags,” the Nazis looted many Pissar-ro paintings, which were a favorite among European Jewish collectors. Moreover, the Painting had a torn label on the back from a gallery in Berlin (the Cassirers’ gallery), but no documentation showing a voluntary transfer of the Painting out of Berlin. The published CORA decision identified Lilly’s ownership of the Painting. Also, Dr. Petro-poulos' stated that Ardelia Hall and Ely Maurer at the United States State Department collected CORA decision reports and warned museums, university art facilities, and art dealers about looted artworks entering the United States and that, had the Baron contacted these individuals about the Painting, the CORA decision would have been discovered. When the Baron purchased the Painting, the Stephen Hahn Gallery provided minimal provenance information: no previous owner was mentioned, only the gallery Durand-Ruel in Paris, where the painting was said to have been exhibited in 1898 and 1899. Dr. Pe-tropoulos states that the Baron’s “highly distinguished cohort of experts” failed to “undertake a serious investigation” to determine the provenance of the Painting. Another expert for the Cassirers, Marc-André Renold, a professor at the University of Geneva Law School who specializes in international art law, stated that he “would have expected someone of the Baron’s sophistication to have undertaken a more diligent search into the provenance of the Painting.” This evidence indicates there is a triable issue of fact whether the Baron was a good faith possessor under Swiss law. Therefore, we cannot affirm the district court’s grant of summary judgment on the basis that,- as a matter of law, the Baron acquired title to the Painting under Swiss law. E. TBC is not entitled to summary judgment based on its laches defense. TBC also argues in its cross-appeal of the summary judgment" }, { "docid": "9546952", "title": "", "text": "existed, Goldberg cannot rest on the presumption, which she is afforded under Swiss law, that she purchased the mosaics in good faith. Instead, Goldberg now bears the burden of establishing her good faith. She may do so by showing that she took steps to inquire into Dikman’s capacity to convey property rights to the mosaics and that such steps reasonably resolved any doubts as to Dikman’s capacity to convey such property rights. 2. Goldberg’s Inquiry Next, the Court will examine the steps Goldberg took to inquire into Dikman’s capacity to convey property rights to the mosaics. As a prefatory matter, the Court notes that all of Goldberg’s inquiries took place after July 4, 1988, which is the date she signed an agreement with the middlemen to split the profits from any future resale of the mosaics. Goldberg testified that she telephoned authorities at UNESCO’s office in Geneva. She cannot recall the name of any individual she spoke with at UNESCO, Switzerland. Goldberg testified that the purpose of her call was to determine “whether or not there were any applicable treaties which would have covered the removal of the items from northern Cyprus in the mid to late 1970s to Germany.” Tr. 497. Thus, Goldberg inquired about treaties, not about the mosaics. She did not inquire as to whether the mosaics had been reported as stolen or whether existing claims might exist. In fact, she did not mention the mosaics at all. Further, Goldberg did not contact UNESCO’s office in Paris, which is UNESCO’s “central gathering point” for information concerning art and cultural property. Emmerich Depo. at 73. Goldberg also testified that she telephoned the International Foundation for Art Research (IFAR) in New York. IFAR is an international organization that collects information concerning stolen art. Goldberg does not recall the name of any individual she spoke with at IFAR. No document sent to or received by IFAR confirms Goldberg’s telephone call. IFAR has no record of Goldberg’s alleged telephone call in July 1988. IFAR has a procedure whereby a formal search can be made of its files to determine whether a" } ]

[ { "docid": "21488387", "title": "", "text": "be commended, the record in the present case negatives any possible inference that the court failed to understand the case or to perform its functions adequately. See Kinnear-Weed Corporation v. Humble Oil Co., 5 Cir. 1958, 259 F.2d 398, 401; Edward Valves, Inc. v. Cameron Iron Works, Inc., 5 Cir. 1961, 289 F.2d 355, 356; Louis Dreyfus & Cie v. Panama Canal Co., 5 Cir. 1962, 298 F.2d 733, 737, 738; 2B Barron & Holtzoff, Federal Practice & Procedure, Rules Ed., § 1124, p. 494; 6 Moore’s Federal Practice ¶ 52.-06 [3], pp. 2664, 2665. . Reported as General Steel Products Co. v. Lorenz, S.D.Fla., 1962, 204 F.Supp. 518. There is no appeal from the parts of the judgment dismissing Lorenz’s claims for breach of contract, breach of confidential disclosure, and fraudulent advertising. . See 35 U.S.C.A. § 102(d). Under the circumstances of this ease, this second ground of invalidity depends on the operativeness vel non of Figures 1 and 2 of the Lorenz patent in suit. . U.S.Const. Art. 1, Se& 8; 35 U.S.C.A. § 101; 1 Walker on Patents, Deller’s ed., §§ 64-73. . See Bennett v. Halahan, C.C.P.A.1961, 285 F.2d 807, 811; 1 Walker on Patents, Deller’s ed., § 73, p. 325. . It may be noted that like findings were made by Chief Judge Campbell of the Northern District of Illinois in Lorenz v. Berkline Corporation, N.D.Ill.1963, 215 F.Supp. 869, 873, 874. . We make no ruling but we entertain some doubt as to whether those holdings are consistent with the district court’s earlier holding that Lorenz was inoperative and lacking in utility. “Novelty is not negatived by anything beneficially incapable of the function of the subject of the patent, even though apparently similar thereto.” I Walker on Patents, Deller’s ed., § 48, p. 257. See also United Shoe Machinery Corp. v. Mathey, 1 Cir. 1941, 117 F.2d 331, 332." } ]

[ { "docid": "15876398", "title": "", "text": "127, 95 L.Ed. 162. Likewise where the advance embodied in the patent is obvious, the fact that it solved a pre-patent problem is immaterial. See Alladin Plastics, Inc. v. Jerrold Stephan Co., 9 Cir., 362 F.2d 532, 534. The same can be said of evidence showing that the asserted invention was copied by others. Walker v. General Motors Corporation, 9 Cir., 362 F.2d 56, 60 and cases cited therein. In reaching the conclusions expressed above we have endeavored to apply, with the required strictness, the principles announced by the Supreme Court in the Graham decision referred to above. Taking into account the scope and content of the prior art of mechanically moving sheet materials, the differences between that prior art and the apparatus described in the Parker claims in issue, and the level of ordinary skill in that art, all as revealed or implicit in the undisputed facts summarized above, we hold that the subject matter of claims 3, 5, 7 and 17 of the Parker patent is plainly obvious within the meaning of section 103, and that those claims are therefore invalid. The judgment is reversed and the cause is remanded for further proceedings consistent with this opinion. . In that decision we remanded the cause to the district court to make findings and conclusions regarding the question of the validity of the Parker patent and the question of infringement of various claims of that patent. . While these determinations by the trial court were denominated by it as findings of fact, the determination of whether a claimed invention meets the test of non-obviousness is one of law where, as here, the relevant facts are not in dispute. See National Lead Company v. Western Lead Products Company, 9 Cir., 291 F.2d 447, 450-451. For a discussion of Ninth Circuit cases on this point, see 2 Walker on Patents (Deller’s 1964 ed., at 103-104). . Section 103 reads as follows: “§ 103. Conditions for patentability; ’ non-obvious subject matter. “A patent may not be obtained though the invention is not identically disclosed or described as set forth in section 102" }, { "docid": "16427385", "title": "", "text": "consideration of the prior art, I have reached the conclusion that the patent in suit does not disclose any novelty or invention. The claim in suit of the patent in suit is not patentable over the disclosure of the Kelly patent No. 1,597,685, for the reason that the tacks of Kelly are obvious equivalents of the stitches 17 of the patent in suit, used for securing the lasting allowance to the insole, and because there would be no invention in using a gutter 21 in the upper surface of the outsole paralleling the margin, as suggested in the patent in suit, in the place of the outsole, having a reduced margin as shown by Kelly. As I read the claim in suit of the patent in suit, and it is with that and not with the commercial structure claimed to be made under the patent in suit comparison must be made, every element of the combination disclosed therein is shown in the combination of the Kelly patent No. 1,597,-685. Invalidity cannot be escaped by reading into the claim in suit the element or elements, namely, the bevel on the inner edge of the insole, and the corresponding bevel on the island of the outsole, because such element or elements are not found in claim 2 of the patent in suit. The looped portion of the insole is specified, in the other claims of the patent in suit, in which both the insole and outsole are recited as having a skived (i. e., beveled) inner edge. Claim 2 was drawn iñ broader language, and it must be assumed that the omission was intended, and the element cannot be read into the claim either “for the purpose of making out a case of novelty or infringement.” McCarty v. Lehigh Valley Railroad Co., 160 U. S. 110, 116, 16 S. Ct. 240, 242, 40 L. Ed. 358. Plaintiff contends that such bevels were not found in the Kelly patent No. 1,597,-685, and are therefore a feature of novelty in the patent in suit, but the prior art in evidence shows that such bevels" }, { "docid": "23459741", "title": "", "text": "a mere improvement over prior art which involved nothing more than what would have been obvious to a person skilled in the art and requiring nothing more than the application of mechanical skill could not be considered as “invention.” See 2 Deller’s Walker on Patents, § 104-106 (2nd Ed. 1964). The Patent Act of 1952 (35 U.S.C. § 103) codified this general judicial requirement as the third statutory requirement of patentability. The statute states in effect that a patent is not valid “if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains.” In interpreting this statute the Supreme Court in the recent case of Graham v. John Deere Company of Kansas City, 383 U,S. 1, 86 S.Ct. 684,15 L.Ed.2d 545 (February 21, 1966) (cert. from 8 Cir., 333 F.2d 529) prefers to call this time honored, now codified, judicial requirement, heretofore known as “invention,” the “test of obviousness.” The Court made it clear that the statute merely codified the decisional law and the necessary level of innovation previously demanded by the courts had not been changed by the statute. However, the Court felt that “obviousness” should be emphasized rather than “invention” and that the “test of obviousness” as set out in the statute be applied as the sole test for the third element of patentability. Therefore, in addition to “utility” and “novelty” patents must contain “non-obviousness.” The thrust of defendants’ attack on the validity of patent ’294 is concentrated on a demonstration of prior art not considered by the patent examiner. Defendants contend that this prior art conclusively demonstrates a lack of novelty and inventiveness in the Schwank patent. As prior art defendants rely primarily upon a 1915 British Patent Number 6312 by McCourt. This patent is admittedly very similar to the Schwank patent, a similarity that will soon be demonstrated in full. In addition to this McCourt patent, defendants" }, { "docid": "3896310", "title": "", "text": "Affiliates. 121 F.Supp. 490, 512 n. 70 (S.D.N.Y.1954). . 35 U.S.C. § 111. . Under the equivalents doctrine a device which does not correspond literally to the claims of a patent may nevertheless be held to infringe if it is the functional equivalent of the subject matter of the patent. Graver Tank & Mfg. Co. v. Linde Air Products Co., 339 U.S. 605, 70 S.Ct. 854, 94 L.Ed. 1097 (1950). See generally 3 Walker on Patents (Deller’s ed. 1937) § 464 et seq. . A possible difficulty with the plaintiff’s theory is that if the low positioning of the ball in the plaintiff’s load cell constituted the advance over the prior art which made its device a patentable one (a fact not found in this case) then the plaintiff might not be able to resort to the doctrine of equivalents in order to expand the scope of the patent to include a cell of the high ball type which was a part of the prior art at the time the patent issued. See, e.g., Lunati v. Barrett, 104 F.2d 313 (6 Cir. 1939). . In the testimony taken at the hearing on unclean hands the trial court found “no convincing evidence” to support the defendants’ claim that the patent charge was intentionally retained in the litigation by the plaintiff in order to exploit the competitive effect which it might have on Marean’s business. The evidence did suggest, however, that the patent litigation was at times mentioned to potential Marcan customers by representatives of the plaintiff, even after the discovery of the Hooker sales. But the defendants did not affirmatively make this conduct a ground for relief in their counterclaim, as they might have, see Cutting Room Appliances Corp. v. Empire Cutting Machine Co., 186 F.2d 997 (2 Cir. 1951), and the trial court therefore made no findings on the extent of any damages which they may have suffered. As Judge McLean noted, they are nevertheless free to assert any remedy which is still available to them in an independent action against the plaintiff. . 28 U.S.C. § 1338(a) confers upon" }, { "docid": "23459766", "title": "", "text": "mere mechanical skill. Simmons v. Hansen, 117 F.2d 49 (8 Cir. 1941); 1 Deller’s Walker on Patents § 57 (2nd Ed. 1964) at page 240. It is our conclusion, therefore, that the Schwank patent ’294 is invalid for want of “novelty”; and even if novel, the patent certainly lacked the necessary “invention.” The trial court’s finding on this point is clearly erroneous in light of the evidence and in view of an application of erroneous standards of invention, and therefore must be reversed. Rule 52(a), Fed.R.Civ.P. Since ’294 is invalid as a matter of law, the question of infringement is rendered moot. There can be no infringement upon an invalid patent. Ditto Incorporated v. Minnesota Mining & Manufacturing Company, 336 F.2d 67 (8 Cir. 1964). ’830 Validity Having thus disposed of patent ’294 (burner plate), we now must determine the validity of the ’830 (housing unit) patent. Defendants assert a statutory bar against the ’830 patent based on 35 U.S.C. § 102(d). Apparently the inventor Gunther Schwank had the device, structure, or design of the burner housing which is the basis of the ’830 patent also patented in Germany under a Gebrauchsmuster which is a lesser type of patent issued for petty or useful models and designs. Defendants contend that, if Gebrauchsmuster No. 1,660,844 issued to Schwank is a patent, United States Patent ’830 is invalid under provisions of 35 U.S.C. § 102(d) which holds in its pertinent part: “Sec. 102 A person shall be entitled to a patent unless— “(d) the invention was first patented * * * in a foreign country prior to the date of the application for patent in this country on an application filed more than twelve months before the filing of the application' in the United States,” This-contention is correct. It is admitted that the Gebrauchsmuster application was made in Germany on May 22, 1953 which is more than twelve months prior to the application in the United States on October 28,1954. ■ The registration was effective or granted on July 9, 1953 with the name of the inventor, title, and registration number being" }, { "docid": "12982923", "title": "", "text": "antedating a reference having a date more than a year prior to the filing date and there was no basis on which to contest it. The accepted state of law is exemplified by the following sentences in McCrady’s Patent Office Practice, 4th ed. (1959), Sec. 127, p. 176: “Prior art specified by 35 USC 102, which has an effective date more than one year prior to the effective filing date of an application, constitutes a bar under the language of that statute. Until 1940 the period was two years. * * **••** “Procedurally, the significance of the statutory bar lies in the fact that it cannot be antedated by evidence of applicant’s earlier invention, as by affidavits under Rule 131, or by evidence presented in an infringement suit.” Our decision in Palmquist appears to have been the first to hold otherwise. The various editions of Walker on Patents from an early time have included this statement, quoted from the 2nd Deller Edition § 141 (§ 87 in 1st Dell, ed.): “Precise identity between the thing covered by the patent and the thing which the inventor allowed to be in public use or on sale more than the statutory period before he applied for the patent is not necessary -to constitute constructive abandonment of the invention covered by the latter. It is enough * * * if the advance from one to the other did not amount to invention [Int’l Tooth Crown Co. v. Gaylord, 140 U.S. 55 [11 S.Ct. 716, 35 L.Ed. 347] (1891)].” Thus the “statutory bar” has not been limited to “complete anticipation” fact situations where the complete disclosure of the invention is to be found in a single reference. At least the skill of the art has been added to the disclosure of the reference or the thing in public use in finding a bar to the grant of a valid patent, utilizing the standard pre-1953 terminology of “no invention.” It would seem that the practical operation of the prior law was that references having effective dates more than a year before applicant’s filing date were always" }, { "docid": "2948832", "title": "", "text": "with lands at the ends for greater durability; the fourth shows the Seymour design; and the fifth the alleged infringing device. It will be noted that the latter has the teeth beveled at variant angles, bnt uses, upon both sets, the lands of the prior art. This offers an opportunity for flat surface contact, but only for so small a section that the attending disadvantages are more than offset by the use of beveled teeth and by the greater durability thus secured. The question of infringement first challenges attention. The claim of noninfringement can be supported only upon the ground that Seymour’s patent drawings show beveled teeth without lands, while the defendant makes use of this expedient then old in the art. Neither of the claims in suit requires that the bevel shall extend across the entire end surface, and the greater strength and durability produced by the lands is a matter entirely distinct from the purpose or function of the bevel. Whether or not lands shall be used seems a matter of pure choice and within the realm of engineering and mechanical selection. If the use of divergent or variant angles of bevel is patentable, the advantages of such invention may not be appropriated and infringement be avoided by the addition of a feature having a wholly independent function. We turn, then, to a consideration of the contention that Seymour has not in fact materially advanced the art by the disclosure of beveling the ends of the teeth at variant angles. Considered apart from the question of the exercise of invention, this is essentially the defense of want of utility — the lack of any useful function — and in this aspect it is correctly claimed by the appellant that an infringer is estopped to assert the defense. The patent is itself evidence of such utility, and the use of the patented device by the defendant has long been recognized as an admission of this fact, and as creating an estoppel upon the defendant to deny such utility. Lehnbeuter v. Holthaus, 105 U. S. 94, 26 L. Ed. 939;" }, { "docid": "884913", "title": "", "text": "in relation to the prior art there would necessarily be lack of infringement since the defendants’ machine is constructed with touching discs which function as a shear. We disagree on both issues. The jury found that the difference between the prior art metal, leather, and paper shears, tin snips, and scissors, and White’s die deformation plastic cutting invention is significant, and the invention amounts to a non-obvious improvement. Our independent consideration of the record, as we have pointed out, supports that finding. There is substantial evidence with respect to the context of the prior art, the difference between the prior art and the White invention, and the level of the ordinary skill in the art, Graham v. John Deere Co., 1966, 383 U.S. 1, 86 S.Ct. 684, 15 L.Ed.2d 545, to support the legal conclusion that White’s invention is a non-obvious improvement over the prior art. Furthermore, defendants contended throughout the trial that infringement was avoided because a die is different from a shear. They urged that, contrary to the die deformation in White’s machine, the discs touch each other in defendants’ machine which produces a shear. There is a conflict in the evidence whether the discs in defendants’ machine are constructed to act as a die or a shear. The jury resolved this factual issue by finding that defendants willfully and wantonly infringed White’s patent. The district court affirmed the finding of infringement and we think properly so. We find that the patent is valid and was infringed. With regard to the conditional rulings of the district court as to treble damages and attorney’s fees, the jury’s finding that defendants willfully infringed and therefore that the compensatory damages should be trebled is advisory only. 35 U.S.C.A. § 284; 8 Walker on Patents, § 757 (Deller’s 2d Ed. 1973). We are unpersuaded that the district court abused its discretion in declining to award treble damages. We also agree that this is not an “exceptional case” justifying an award of attorney’s fees under 35 U.S.C.A. § 285. Williamson-Dickie Mfg. Co. v. Hortex, Inc., 5 Cir. 1974, 504 F.2d 983, 988; Garrett" }, { "docid": "10762642", "title": "", "text": "138 F.Supp. at 784. Roll lamination, “old” in the art since 1960, is the only part of a process “step” distinguishing the Hannon ’171 patent claims from the Biddle patent, and it constitutes an obvious modification based on the materials selected by Han-non. Finally, the single component change expressly described in the Hannon '171 and ’497 patents, as compared with the earlier Hannon No. 2,984,030 and Re. 25,005 patents, is the use of polyethylene-coated paper as the core. But polyethylene was well known as a paper coating as was disclosed in that portion of The Condensed Chemical Dictionary (6th Ed. 1961) definition of the term not cited to the Patent Examiner. Thus, in the context of the prior art, Hannon ’171 and ’497 constitute a mere adaptation of the construction of the prior Hannon patents No. 2,984,030 and Re. 25,005 to a construction in which identifying indicia are suspended between two fused thermoplastic layers, a construction well known in the art as exemplified by the Whitehead patents and the Biddle-Addressograph card. Nor, does the use of roll lamination save the validity of the Han-non ’171 patent, because this was the normal technique of manufacture then being used commercially in the art and had been applied to cards having a grid printed on the polyethylene of the over-laminate. Roll lamination is irrelevant and immaterial to the scope of the Han-non ’497 patent. The claims of Hannon ’497 do not mention roll lamination; they apply equally to platen-laminated cards such as the Addressograph card. Accordingly, in view of the acknowledged prior art, Hannon ’171 and ’497 are “obvious,” and consequently, both are invalid under the terms of 35 U.S.C. § 103. Anticipation To be novel, an invention must not have been anticipated by a prior patent. 1 Deller’s Walker on Patents § 58 (2d ed. 1964). The Rudershausen et al. No. 3,279,826 (1966), applied for May 27, 1964, discloses an identification card composed of a central core sheet coated on both sides with a layer of thermoplastic, preferably polyethylene, with identification data printed on the outer surface of the thermoplastic coating. This" }, { "docid": "23459765", "title": "", "text": "describing with particularity the red glow. The tests conducted by plaintiffs’ experts, indicated that it did not work as well as plaintiffs’ burner, but nonetheless did admit that it did gain some incandescence. Finally, as taught by Mc-Court the type of block for successful use will greatly be influenced by the type of gas you utilize. Knowing this, there is nothing to indicate that the tests conducted by plaintiffs in their laboratory or the tests conducted before the court utilized the type of gas necessary for the successful operation of the burner under the circumstances. Furthermore, even if we accept the proposition that the McCourt burner did not work, we do not believe that undue emphasis should be placed on this factor. Even an unsuccessful effort to embody the concept will suffice as invention so long as this effort discloses that the inventive idea was complete. Anticipation is not avoided by showing of lack of prior success if all that remains to be done to make the device successful are changes involving the application of mere mechanical skill. Simmons v. Hansen, 117 F.2d 49 (8 Cir. 1941); 1 Deller’s Walker on Patents § 57 (2nd Ed. 1964) at page 240. It is our conclusion, therefore, that the Schwank patent ’294 is invalid for want of “novelty”; and even if novel, the patent certainly lacked the necessary “invention.” The trial court’s finding on this point is clearly erroneous in light of the evidence and in view of an application of erroneous standards of invention, and therefore must be reversed. Rule 52(a), Fed.R.Civ.P. Since ’294 is invalid as a matter of law, the question of infringement is rendered moot. There can be no infringement upon an invalid patent. Ditto Incorporated v. Minnesota Mining & Manufacturing Company, 336 F.2d 67 (8 Cir. 1964). ’830 Validity Having thus disposed of patent ’294 (burner plate), we now must determine the validity of the ’830 (housing unit) patent. Defendants assert a statutory bar against the ’830 patent based on 35 U.S.C. § 102(d). Apparently the inventor Gunther Schwank had the device, structure, or design of the" }, { "docid": "15714467", "title": "", "text": "the method described in the patent. That it has been successful in producing results which were not anticipated, reduces hazard by a combination of air with rubber solvent and cement so as to turn an inflammable substance into a non-flammable substance is quite evident. Whether the mixture achieved is technically called an “emulsion” or not is unimportant. A patentee is entitled to the full benefit of the claims by which he expresses his invention. And even assuming that the mixture described in the claims cannot be called chemically an emulsion no uncertainty results, for the patents described clearly what is meant by “emulsion” and the results it achieves. So the claims are valid. 35 U.S.C.A. § 112. The invention was not anticipated in the prior art and is not invalid for prior use. 35 U.S.C.A. § 102(b). Admittedly a process patent which merely describes the function of a machine is not patentable. Walker on Patents, Deller’s Ed., 1937, § 20; Kruger v. Whitehead, 9 Cir., 1946, 153 F.2d 238. However, if the process patent adds one element not known in the prior art, it is patentable. General Tire & Rubber Co. v. Fisk Rubber Corp., 6 Cir., 1939, 104 F.2d 740, 745. Even if the patent in suit be considered from one angle only and that is that it taught the substitution of a machine operation for a manual operation, it would still constitute invention over the prior art. See writer’s opinion in Mantz v. Kersting, D.C.Cal.1939, 29 F.Supp. 706, 710-711; Oliver United Filters v. Eimco Corp., 10 Cir., 1937, 91 F.2d 345. The plaintiff’s process clearly infringes. Graver Tank & Mfg. Co. v. Linde Air Products Co., 1950, 339 U.S. 605, 609-611, 70 S.Ct. 854, 94 L.Ed. 1097. Hence the ruling above made. . The Patent is entitled “Spray Device Por Retreading Tires and the Like Uses”. Originally it was sought to have a patent on both the spraying apparatus and the method of applying it. Later the application was divided and the present patent limited to claims as to the method of spraying the rubber. The Claims, four" }, { "docid": "703461", "title": "", "text": "2,820,998). Lovercheck’s deposi tion indicates that he observed a working model of Harrison ’134 when he visited Harrison’s establishment in the early part of 1954. He drew up a patent application and drawings which he forwarded to Harrison for approval on June 9, 1954. Harrison is entitled to a date no later than June 9, 1954, for his invention because the invention was conceived and reduced to practice by then. See Deller’s Walker on Patents, §§ 45-46, pp. 191-210 (2d ed. 1964). Accordingly, regardless of the evidence supporting a date of invention for Sutter ’653 earlier than Harrison’s filing date, Harrison ’134 may be considered as a prior invention under 35 U.S.C. § 102(g). Plaintiff next argues that even if the Harrison invention may be relied upon to establish anticipation under Section 102(g), the machine may not be considered “prior art” to show obviousness under Section 103. Plaintiff contends that under Section 103, “prior art” must be confined to matters of public knowledge. Since plaintiff invented his ’653 machine before the filing date of the Harrison machine’s patent application, plaintiff could have had no knowledge of Harrison’s work and, plaintiff claims, Harrison ’134 should therefore be disqualified. We find the argument without merit. The constitutional purpose which is evident in Section 103 limits the grant of patent monopolies to nonobvious “inventions” : “Innovation, advancement, and the things which add to the sum of useful knowledge are inherent requisites in a patent system which by constitutional command must ‘promote the Progress of * * * useful Arts.’ ” Graham v. John Deere Co., 383 U.S. 1, at p. 6, 86 S.Ct. 684, at p. 688, 15 L.Ed.2d 545. Congress has defined an objective standard in Section 103 by which the inventiveness of a device or process is to be tested. Under that Section, this objective test applies equally to “prior art” as to the “person having ordinary skill in the art.” Cf. Formal Fashions, Inc. v. Braiman Bows, Inc., 369 F.2d 536, 538 (2d Cir. 1966). Thus in Hazeltine Research, Inc. v. Brenner, 382 U.S. 252, 86 S.Ct. 335, 15 L.Ed.2d" }, { "docid": "6014902", "title": "", "text": "a rule, in order to have anticipation, all of the elements of the patented device or their equivalents must be found in a single prior device. Firestone v. Aluminum Co. of America, 6 Cir., 1960, 285 F.2d 928, 930; Allied Wheel Products v. Rude, 6 Cir., 1953, 206 F.2d 752, 760. But it is sufficient if the general aspects are the same and the difference in minor matters is only such as would suggest itself to one of ordinary skill in the art. I Walker on Patents (Deller, 2d ed.) § 77 at page 363, citing Model Bottling Machinery Co. v. Anheuser-Busch Brewing Assn., 8 Cir., 1911, 190 F. 573, 579, cert. den. 223 U.S. 732, 32 S.Ct. 528, 56 L.Ed. 634. The plaintiff apparently construed defendant’s concession that no one prior patent disclosed the whole of the patented subject as an admission of non-anticipation and hence of novelty. If the District Judge has decided an issue here which was not really submitted to him, we conclude that in the posture of this case, at worst mere harmless error has occurred. With reference to the aspect of utility, plaintiff’s claimed useful improvement over prior art is the substantial reduction of tick noise. The Trial Judge found, as we do, from our study of the record, that the elements of the plaintiff’s device which plaintiff asserts are not to be found in the prior art do not contribute to reduction of noise, better timekeeping or longer life as asserted during the trial. Such test data as was submitted did not prove that quieter operation was secured by, for example, telescoping of the helical connecting spring over the hubs of the wheel and pinion, or the space between the hubs. The “difference” between the teaching of the prior art does not qualify as invention if that difference lacks utility. It must be the feature which accompishes the purpose set out in the specification. Imperial Stone Cutters, Inc. v. Schwartz, 8 Cir., 1966, 370 F.2d 425, 429. When considering obviousness, the District Judge observed that the major difference between plaintiff’s device and the" }, { "docid": "23459740", "title": "", "text": "plate), after which we will discuss Schwank patent ’830 (housing unit). Validity of ’294 It is fundamental that for a patent to be valid it must demonstrate three separate and distinct elements: “novelty,” “utility” and “invention.” We are concerned herein only with the elements of “novelty” and “invention” as “utility” is admitted or evident. When we say that a patent must possess “novelty” we mean that it must be new. As required by the statute, to be patentable the device must not have been “known or used by others in this country, or patented or described in a printed publication in this or a foreign country * * 35 U.S.C. § 102(a). In addition to “utility” the statutes have always demanded that a patent be novel. However, in addition to these two statutory elements of patent-ability the courts for over a hundred years have demanded of all patents an additional requirement of “invention.” The exact definition of “invention” has varied from time to time and from court to court. However, it was generally agreed that a mere improvement over prior art which involved nothing more than what would have been obvious to a person skilled in the art and requiring nothing more than the application of mechanical skill could not be considered as “invention.” See 2 Deller’s Walker on Patents, § 104-106 (2nd Ed. 1964). The Patent Act of 1952 (35 U.S.C. § 103) codified this general judicial requirement as the third statutory requirement of patentability. The statute states in effect that a patent is not valid “if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains.” In interpreting this statute the Supreme Court in the recent case of Graham v. John Deere Company of Kansas City, 383 U,S. 1, 86 S.Ct. 684,15 L.Ed.2d 545 (February 21, 1966) (cert. from 8 Cir., 333 F.2d 529) prefers to call this time" }, { "docid": "1975712", "title": "", "text": "Ed., 1873, Vol. IV, p. 462, column 2.) Finding XII: “Prior to any invention of Simons, it was old in the art to use metallic ties between the wall units of a wall structure, as distinguished from the practice of setting brick headers across the wall units * * * (id., p. 463, col. 1, “Hollow Walls”) Finding XIII: “Prior to the date of any invention by Simons, it was old in the art to reinforce wall structures constructed by brick or other building elements by the use of metallic reinforcing rods * * * » Finding XIV: “Prior to the' date of any invention of Simons, it was old in the art to form wall structures utilizing brick provided with bevels or other shaped cutaway portions, such as grooves or corrugations, for the purpose of facilitating the flow of grout in forming the wall or to secure a better bond between the cementitious material and the brick. * * * Finding XV: “Prior to the date of any invention by Simons, it was old in the art to construct walls with metallic reinforcing rods, utilizing brick or other building elements with bevels or other cut-away portions to enlarge the space between the metallic reinforcing rods and bricks or, other elements * * * The appellant contends, and properly so, that a patent for a novel combination producing new results or performing new functions resulting from inventive genius cannot be destroyed by the fact that some or all of the elements are old. If we regard appellant’s patent as a novel and patentable combination, a construction which .omits one of the elements claiméd as a part of the combination and does not supply an equivalent does not infringe. Each of the three claims of the original patent, being claims 1, 2 and 3 of the reissue patent, claim the horizontal bevel which the appellee omits from his wall. The appellant argues that the square corner of the appellees’ brick is the equivalent of the bevel of the appellant’s patent. He says: “In Simons’ [appellant] part of the seats may be" }, { "docid": "16427386", "title": "", "text": "into the claim in suit the element or elements, namely, the bevel on the inner edge of the insole, and the corresponding bevel on the island of the outsole, because such element or elements are not found in claim 2 of the patent in suit. The looped portion of the insole is specified, in the other claims of the patent in suit, in which both the insole and outsole are recited as having a skived (i. e., beveled) inner edge. Claim 2 was drawn iñ broader language, and it must be assumed that the omission was intended, and the element cannot be read into the claim either “for the purpose of making out a case of novelty or infringement.” McCarty v. Lehigh Valley Railroad Co., 160 U. S. 110, 116, 16 S. Ct. 240, 242, 40 L. Ed. 358. Plaintiff contends that such bevels were not found in the Kelly patent No. 1,597,-685, and are therefore a feature of novelty in the patent in suit, but the prior art in evidence shows that such bevels were known to the art prior to the patent in suit. There is a sharp conflict as to whether Exhibits 35, 35A, 37, and 37A were illustrative of the structure shown in the Kelly patent, and as to their commercial suitability. I saw and heard the witnesses and I am convinced that those exhibits are fairly illustrative, and that the variation in the thickness of the material would not make it impossible to make a shoe with a square cut rand on the insole, and shoulder on the outsole, because, as the witness Sutcliffe said, any good shoemaker would make such provision whether he was using a looped forepart insole with a beveled edge or a square edge. I was not impressed by the discussion by plaintiffs’ expert, and the witness Sutcliffe, of the effect of variation in the size of the opening in the looped forepart with respect to that of the insole, where the parts were beveled, or where they were square cut, nor their criticism of the Kelly structure, in view of" }, { "docid": "562607", "title": "", "text": "the patents in suit does not bar it from questioning the scope of the patents in connection with its defense of noninfringement. Plaintiff does not claim infringement by defendant’s first machine. It only claims that defendant’s second or accused machine infringes the several specified claims of the patents in suit. The question of infringement is one of fact, United States Rubber Co. v. General Tire & Rubber Co., 6 Cir., 128 F.2d 104, 108; Aluminum Co. of America v. Thompson Products, Inc., 6 Cir., 122 F.2d 796; Fuller v. Yentzer, 94 U.S. 299, 24 L.Ed. 107, and the burden is upon plaintiff to establish its claim of infringement by a preponderance of the evidence. The court must compare the method and apparatus claims of the patents in suit which plaintiff contends were infringed, with the apparatus, method, means, and mode of operation of defendant’s accused machine, to determine whether or not there is infringement. 3 Walker on Patents, Deller’s Edition, p. 1681, sec. 450. Defendant denies the charge of infringement and contends that its accused machine was constructed and operated in accordance with the disclosures and claims of Catlett patents Nos. 2,282,031 and 2,282,032 and that it does not come within the scope of any of the specified claims of the patents in suit. These two Catlett patents, when considered together, disclose and describe apparatus and method for the welding of thick-walled metal tube stock by beveling the edges of the stock so as to form a V-shaped groove in the upper portion of the seam and by bringing the lower edges of the stock into contact, thereby forming a Y-shaped seam cleft; the projection of heat into the V-shaped groove, thereby creating a pool of molten metal in the groove and raising the abutting edges or stem of the Y-shaped seam to a forge-welding temperature. Claims 1 and 3 of Catlett patent No. 2,282,032 state: “1. The method of seam welding which comprises progressively applying heat along a Y seam as rapidly as possible until the leading end of an elongated pool of molten ■metal begins to form in" }, { "docid": "1401071", "title": "", "text": "p. 176: Prior art specified by 35 USC 102, which has an effective date more than one year prior to the effective filing date of an application, constitutes a bar under the language of that statute. Until 1940 the period was two years. Procedurally, the significance of the statutory bar lies in the fact that it cannot be antedated by evidence of applicant’s earlier invention, as by affidavits under Rule 131, or by evidence presented in an infringement suit. Our decision in Palmquist appears to have been the first to hold otherwise. The various editions of Walker on Patents from an early time have included this statement, quoted from the 2nd Deller Edition § 141 (§ 87 in 1st Dell, ed.) : Precise identity between the thing covered by the patent and the thing which the inventor allowed to be in public use or on sale more than the statutory period before he applied for the patent is not necessary to constitute constructive abandonment of the invention covered by the latter. It is enough * * * if the advance from one to the other did not amount to invention [Int’l Tooth Crown Co. v. Gaylord, 140 U.S. 55 (1891)]. Thus the “statutory bar” has not been limited to “complete anticipation” fact situations where the complete disclosure of the invention is to be found in a single reference. At least the skill of the art has been added to the disclosure of the reference or the thing in public use in finding a bar to the grant of a valid patent, utilizing the standard pre-1953 terminology of “no invention.” It would seem that the practical operation of the prior law was that references having effective dates more than a year before applicant’s filing date were always considered to be effective as references, regardless of the applicant’s date of invention, and that rejections were then predicated thereon for “lack of invention” without making the distinction which we now seem to see as implicit in sections 102 and 103, “anticipation” or no novelty situations under 1()2 and “obviousness” situations under 103. But" }, { "docid": "1975703", "title": "", "text": "being strongly reinforced by the vertical rods 15, in its combination with the less resisting bed joints 30 nearer the sides of the wall will provide a shock resisting wall which will not collapse even tho some breakage may occur at the bed joints 30 when the wall is subjected to shock.” The wall constructed by the appellees, which is claimed to infringe, is composed of two layers of brick laid in mortar with a center joint reinforced by vertical and horizontal steel bars and filled with a cement grout. The brick used is not beveled, but has three vertical corrugations which increases the space between the outer and inner course of brick and provides a greater surface for adhesion of the grout and thus has vertical columns or bars of concrete in the center of the wall. The wall is reinforced by vertical and horizontal metal bars. No effort is made to house the vertical reinforcing bars in the corrugations, and there is no horizontal space which takes the place of or is equivalent to the horizontal beveled edges of the bricks used in the Simons patent. The trial court held that in view of the prior art the Simons patent should be confined to the use of a brick with a horizontal beveled edge for the housing of the horizontal metal reinforcing bar and, consequently, held that there was no infringement by the appellees who used no horizontal bevel at all. From this decree the plaintiff has appealed. The appellant assumes that the only question involved on appeal is that of infringement and, notwithstanding the fact that the trial court held that in view of the prior art the claims of the patent should be narrowly construed, appellant claims that the patent is a basic one and should be given a broad construction in determining the question of infringement. The trial court made specific and detailed findings of fact. In these findings the court held that certain features of the patent were anticipated by prior patents mentioned by name and number in the findings. The first 44 assignments" }, { "docid": "11279654", "title": "", "text": "Deener, supra, at 788. The Alexander process was both new in the industry and of great commercial value. While prior-art (including the Judd patent) taught something about each of the cited features, no prior-art taught the application of all of these features in the combination indicated at the point in the plywood manufacturing process taught by Alexander’s patent. Nor do we think that Alexander’s process was an obvious development to any mechanic skilled in the art. The problems solved had existed for years in the industry and had resisted the efforts of others skilled in the art. We believe the record supports the District Judge’s finding that the Alexander patent is valid. The District Judge in upholding validity relied strongly upon the statutory presumpton of validity accorded to a patent, like Alexander’s, which was regularly issued by the United States Patent Office. Patent Act of 1952, 35 U.S.C. § 282 (1964 ed.). Without disregarding the force of this presumption, we feel it important to note also that our review indicates to us that Alexander’s patent meets the statutory tests of utility, novelty, and nonobviousness (Patent Act of 1952, 35 U.S.C. §§ 101, 102, 103 (1964 ed.); United States v. Adams, 383 U.S. 39, 86 S.Ct. 708, 15 L.Ed.2d 572 (1966)). We likewise feel that Alexander’s patent meets the Constitutional standard of invention (U.S.Const, art. I, § 8, cl. 8). That standard has been described as including “Innovation, advancement, and things which add to the sum of useful knowledge * * Graham v. John Deere Co., 383 U.S. 1, 6, 86 S.Ct. 684, 688, 15 L.Ed.2d 545 (1966). While, as we will point out, the District Judge ultimately found noninfringement of this patent, we feel he was correct in passing squarely on its validity. The issues raised by cross-filed pleadings are complex. Validity is squarely attacked by the original plaintiff. And the case has involved a lengthy trial of complex facts, most of them bearing directly upon this issue. We believe ample precedent supports his passing on validity in the decree. Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327," } ]

[ { "docid": "22372853", "title": "", "text": "regulation of an executive department.” We are not aware of any Supreme Court authority that controversies falling under the “founded upon” language of 28 U.S.C. § 1491(a)(1) require a showing of nonfrivolousness. Rather, the jurisdictional requirements of section 1491(a)(1) have evolved differently. We have explained that, because the Tucker Act itself does not create a substantive cause of action, “in order to come within the jurisdictional reach and the waiver of the Tucker Act, a plaintiff must identify a separate source of substantive law that creates the right to money damages.” Fisher v. United States, 402 F.3d 1167, 1172 (Fed. Cir.2005) (en banc in relevant part). The Supreme Court on several occasions has addressed the jurisdictional scope of the Tucker Act, and has clearly defined it. In United States v. Mitchell, 463 U.S. 206, 103 S.Ct. 2961, 77 L.Ed.2d 580 (1983), the Court explained that “[t]he claim must be one for money damages against the United States, and the claimant must demonstrate that the source of substantive law he relies upon ‘can fairly be interpreted as mandating compensation by the Federal Government for the damages sustained.’ ” Id. at 216-17, 103 S.Ct. 2961 (internal citation and footnote omitted) (quoting United States v. Testan, 424 U.S. 392, 400, 96 S.Ct. 948, 47 L.Ed.2d 114 (1976)). In Mitchell, the Court found that the Court of Federal Claims had jurisdiction because the statutes and regulations at issue “clearly establish[ed] fiduciary obligations of the Government in the management and operation of Indian lands and resources,” and therefore concluded that they could “fairly be interpreted as mandating compensation by the Federal Government” for the alleged breach of those fiduciary obligations. 463 U.S. at 226, 103 S.Ct. 2961. The Court did not go on to consider whether the plaintiffs had a non-frivolous claim that such a breach had occurred; rather, it stated that because the plaintiffs had alleged violations of statutes and regulations that could fairly be interpreted as being money-mandating, “[t]he Court of Claims therefore has jurisdiction over [plaintiffs’] claims for alleged breaches of trusts.” Id. at 228, 103 S.Ct. 2961 (footnote omitted). In a" } ]

[ { "docid": "8043732", "title": "", "text": "Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort.” 28 U.S.C. § 1491(a)(1) (2005). The Tucker Act, however, is only a “jurisdictional statute; it does not create any substantive right enforceable against the United States for money damages.” United States v. Testan, 424 U.S. 392, 398, 96 S.Ct. 948, 47 L.Ed.2d 114 (1976) (citations omitted); see also Perri v. United States, 340 F.3d 1337, 1340 (Fed.Cir.2003) (quoting Testan). Therefore, in order to pursue a substantive right, a plaintiff must identify and plead an independent contractual relationship, constitutional provision, federal statute, anchor executive agency regulation that provides a substantive right to money damages for the court to have jurisdiction. See Todd v. United States, 386 F.3d 1091, 1094 (Fed.Cir.2004) (“[Jjurisdiction under the Tucker Act requires the litigant to identify a substantive right for money damages against the United States separate from the Tucker Act itself.”); see also Roth v. United States, 378 F.3d 1371, 1384 (Fed.Cir. 2004) (“Because the Tucker Act itself does not provide a substantive cause of action, ... a plaintiff must find elsewhere a money-mandating source upon which to base a suit.”) (citing United States v. Mitchell, 463 U.S. 206, 216-19, 103 S.Ct. 2961, 77 L.Ed.2d 580 (1983); Testan, 424 U.S. at 398, 96 S.Ct. 948; Collins v. United States, 67 F.3d 284, 286 (Fed.Cir.1995)). In this case, Plaintiff has pled a contractual relationship with the Government. See Compl. ¶¶ 2, 5, 9; see also Trauma Serv. Group v. United States, 104 F.3d 1321, 1325 (Fed.Cir.1997) (“To show jurisdiction ... [Plaintiff] must show that either an express or implied-in-fact contract underlies its claim.”). Therefore, the court has jurisdiction to adjudicate Plaintiffs claims of breach. B. Legal Standards. 1. Standard Of Review For A Motion To Dismiss For Failure To State A Claim — RCFC 12(b)(6). In ruling on a motion to dismiss, the court is “obligated to assume all factual allegations to be true and to draw all reasonable inferences in plaintiffs favor.” Henke v. United" }, { "docid": "3740071", "title": "", "text": "plaintiffs’ complaint, the Tucker Act, as amended, 28 U.S.C. § 1491 (1994 & Supp. II 1998), requires that a substantive right, which is enforceable against the United States for money damages, must exist independent of 28 U.S.C. § 1491. The Tucker Act provides: The United States Court of Federal Claims shall have jurisdiction to render judgment upon any claim against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort. 28 U.S.C. § 1491(a)(1). The Tucker Act merely confers jurisdiction on the United States Court of Federal Claims; it does not create a substantive right that is enforceable against the United States for money damages. United States v. Mitchell, 445 U.S. 535, 538, 100 S.Ct. 1349, 63 L.Ed.2d 607, reh’g denied, 446 U.S. 992, 100 S.Ct. 2979, 64 L.Ed.2d 849 (1980); United States v. Testan, 424 U.S. 392, 398-99, 96 S.Ct. 948, 47 L.Ed.2d 114 (1976); United States v. Connolly, 716 F.2d 882, 885 (Fed.Cir.1983) (en banc), cert. denied, 465 U.S. 1065, 104 S.Ct. 1414, 79 L.Ed.2d 740 (1984). Moreover, a waiver of the traditional sovereign immunity “cannot be implied but must be unequivocally expressed.” United States v. King, 395 U.S. 1, 4, 89 S.Ct. 1501, 23 L.Ed.2d 52 (1969) (citing United States v. Sherwood, 312 U.S. 584, 61 S.Ct. 767, 85 L.Ed. 1058 (1941)). The individual claimants, therefore, must look beyond the jurisdictional statute for a waiver of sovereign immunity. United States v. Testan, 424 U.S. at 398, 96 S.Ct. 948. “[I]n order for a claim against the United States founded on statute or regulation to be successful, the provisions relied upon must contain language which could fairly be interpreted as mandating recovery of compensation from the government.” Cummings v. United States, 17 Cl.Ct. 475, 479 (1989), aff'd, 904 F.2d 45 (Fed.Cir.1990) (citations omitted); see also United States v. Mitchell, 463 U.S. 206, 216-17, 103 S.Ct. 2961, 77 L.Ed.2d 580 (1983) (citing United States v. Testan," }, { "docid": "15234216", "title": "", "text": "jurisdiction is prescribed by the Tucker Act, 28 U.S.C. § 1491 (2006). Under the Tucker Act, this court’s jurisdiction is limited to monetary claims “against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort.” Id. § 1491(a)(1) (emphasis added). The Tucker Act is only a jurisdictional statute and does not create any independent substantive rights enforceable against the United States for money damages. See, e.g., United States v. Mitchell, 463 U.S. 206, 216, 103 S.Ct. 2961, 77 L.Ed.2d 580 (1983); United States v. Testan, 424 U.S. 392, 398, 96 S.Ct. 948, 47 L.Ed.2d 114 (1976) (“[T]he [Tucker] Act merely confers jurisdiction upon [this Court] whenever the substantive right exists.”). In other words, not every claim involving the United States Constitution or an Act of Congress is recognizable under the Tucker Act. Rather, a plaintiffs claim must be for money damages based on a “money-mandating” source of substantive law. See Jan’s Helicopter Serv., Inc. v. FAA, 525 F.3d 1299, 1309 (Fed.Cir.2008). If the court concludes that a plaintiffs claim is not based on a “money-mandating” source of substantive law, then the claim falls outside this court’s jurisdiction. Metz v. United States, 466 F.3d 991, 997 (Fed.Cir.2006). Defendant has filed a Motion to Dismiss for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) of the Rules of the Court of Federal Claims (“RCFC”). A challenge to the court’s “general power to adjudicate in specific areas of substantive law ... is properly raised by a [Rule] 12(b)(1) motion.” Palmer v. United States, 168 F.3d 1310, 1313 (Fed.Cir.1999). When deciding a motion to dismiss pursuant to RCFC 12(b)(1), the court is “obligated to assume all factual allegations to be true and to draw all reasonable inferences in [the] plaintiffs favor.” Henke v. United States, 60 F.3d 795, 797 (Fed.Cir.1995). Nevertheless, a plaintiff still bears the burden of establishing jurisdiction by a preponderance of the evidence. See Reynolds v. Army" }, { "docid": "14050666", "title": "", "text": "(1) it confers jurisdiction upon the Court of Federal Claims over the specified categories of actions brought against the United States, and (2) it waives the Government’s sovereign immunity for those actions. See U.S. v. Mitchell, 463 U.S. 206, 212-18, 103 S.Ct. 2961, 77 L.Ed.2d 580 (1983) (Mitchell II); United States v. Testan, 424 U.S. 392, 397-98, 96 S.Ct. 948, 47 L.Ed.2d 114 (1976). The causes to which the Act applies are claims for money damages against the United States “founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort.” 28 U.S.C. § 1491(a)(1). The Tucker Act itself does not create a substantive cause of action; in order to come within the jurisdictional reach and the waiver of the Tucker Act, a plaintiff must identify a separate source of substantive law that creates the right to money damages. Mitchell II, 463 U.S. at 216, 103 S.Ct. 2961; Testan, 424 U.S. at 398, 96 S.Ct. 948. In the parlance of Tucker Act cases, that source must be “money-mandating.” See Mitchell II, 463 U.S. at 217, 103 S.Ct. 2961; Testan, 424 U.S. at 398, 96 S.Ct. 948. Under the existing precedent of this court, the issue of whether a source is money-mandating is addressed in a two-step process. See Gollehon Farming v. United States, 207 F.3d 1373, 1378-80 (Fed.Cir.2000) (citing Banks v. Garrett, 901 F.2d 1084, 1087-88 (Fed.Cir.1990)). As a first step, and for purposes of satisfying the jurisdictional requirement that a money-mandating statute or regulation is before the court, the plaintiff need only make a non-frivolous allegation that the statute or regulation may be interpreted as money-mandating. The non-frivolous allegation satisfies the jurisdictional requirement. If, as a second step, the issue of jurisdiction is later pressed and it is subsequently decided that the statute or regulation is not money-mandating, then the case is dismissed for failure to state a claim upon which relief can be granted. Gollehon, 207 F.3d at 1379." }, { "docid": "5288170", "title": "", "text": "2, Compl. ¶ 41; see Pl.’s Mot. ¶ 15, by failing to consider plaintiff for any valid vacancy for which he could be deemed qualified, see Pl.’s Mot. ¶¶ 35-36, and by considering the August 6, 2011 letter of reprimand as support for plaintiffs removal from the Army, Pl.’s Resp. 27; see Pl.’s Mot. ¶ 35. On September 23, 2013, defendant filed its response and cross-motion for summary judgment. See Def.’s Mot. 1. Defendant argues that plaintiff cannot establish either that the Army breached the NSA, id. at 19-26, or that he can recover any damages resulting from the alleged breach, id. at 26-28. Defendant adds that the court lacks jurisdiction to hear any claim by plaintiff that relitigates his removal from the Army, id. at 15-16, or that attributes fraudulent conduct to the Army, id. at 28-29. II. Legal Standards A Subject Matter Jurisdiction The Tucker Act establishes and limits the jurisdiction of the Court of Federal Claims. See 28 U.S.C. § 1491 (2006). The Tucker Act affords this court jurisdiction over “any claim against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in eases not sounding in tort.” Id. § 1491(a)(1). Although the Tucker Act waives the sovereign immunity necessary for a plaintiff to sue the United States for money damages, United States v. Mitchell, 463 U.S. 206, 212, 103 S.Ct. 2961, 77 L.Ed.2d 580 (1983), it does not confer any substantive rights upon a plaintiff, United States v. Testan, 424 U.S. 392, 398, 96 S.Ct. 948, 47 L.Ed.2d 114 (1976). A plaintiff must establish an independent substantive right to money damages from the United States—that is, a money-mandating source within a contract, regulation, statute or constitutional provision—in order for the case to proceed. See Jan’s Helicopter Serv., Inc. v. Fed. Aviation Admin., 525 F.3d 1299, 1306 (Fed.Cir.2008). In this ease, the court already has found that because “the NSA [could] fairly be interpreted as contemplating money damages through" }, { "docid": "3018539", "title": "", "text": "that WEP II is not entitled to any further recoveiy because the reduced reimbursement correctly reflects a commensurate reduction in the facility’s eligible cost basis under Section 1603. With the issues joined, WEP II filed a motion for summary judgment on June 13, 2014, and the Government filed a cross-motion for summary judgment on July 28, 2014. Both motions have been fully briefed, and the Court held oral argument on December 15, 2014. Discussion A. Subject Matter Jurisdiction The Court has jurisdiction over this action pursuant to the Tucker Act, 28 U.S.C. § 1491 (2012). The Tucker act establishes Court of Federal Claims jurisdiction and waives sovereign immunity over certain claims against the United States, including those founded upon federal statutes and regulations. Id. The Tucker Act “does not create a substantive cause of action; in order to come within the jurisdictional reach and the waiver of the Tucker Act, a plaintiff must identify a separate source of substantive law that creates the right to money damages.” Fisher v. United States, 402 F.3d 1167, 1172 (Fed.Cir.2005) (citing United States v. Mitchell, 463 U.S. 206, 216, 103 S.Ct. 2961, 77 L.Ed.2d 580 (1983) and United States v. Testan, 424 U.S. 392, 398, 96 S.Ct. 948, 47 L.Ed.2d 114 (1976)). “In the parlance of Tucker Act cases, that source must be ‘money-mandating.’ ” Id. (citing Mitchell, 463 U.S. at 217, 103 S.Ct. 2961 and Testan, 424 U.S. at 398, 96 S.Ct. 948). This Court previously has held that Section 1603 is “money mandating,” and that it has jurisdiction over Section 1603 disputes. LCM Energy Solutions v. United States, 107 Fed.Cl. 770, 772 (2012); AURA Energy Co. v. United States, 97 Fed.Cl. 12, 19-20 (2011). B. Standard of Review Section 1603 provides “grants for specified energy property in lieu of tax credits” and explicitly adopts the meaning of terms used in I.R.C. Sections 45 and 48. § 1603, 123 Stat. 115, 364, 366. When an applicant pursues a Section 45 or 48 tax credit instead of a Section 1603 reimbursement and receives an unfavorable determination by the IRS, the applicant may file a" }, { "docid": "4597455", "title": "", "text": "order for the case to proceed. Jan’s Helicopter Serv., Inc. v. Fed. Aviation Admin., 525 F.3d 1299, 1306 (Fed.Cir.2008). B. Transfer for Lack of Subject Matter Jurisdiction Under 28 U.S.C. § 1631, a federal court may transfer a case to another federal court when (1) the transferring court lacks subject matter jurisdiction; (2) the case could have been brought in the transferee court at the time it was filed; and (3) such a transfer is in the interest of justice. See Rodriguez v. United States, 862 F.2d 1558, 1559-60 (Fed.Cir.1988) (citing Town of North Bonneville, Wash. v. U.S. District Court, 732 F.2d 747, 750 (9th Cir.1984)). III. Discussion For the following reasons, all of plaintiffs claims are dismissed for lack of subject matter jurisdiction pursuant to RCFC 12(b)(1). Additionally, the court finds that transfer of plaintiffs ease to another federal court is inappropriate. A Denial of Social Security Benefits Plaintiff attempts to invoke the court’s jurisdiction under the Tucker Act to appeal the SSA’s decision denying him Social Security benefits while he is incarcerated. See Compl. I, ¶¶ 35, 73. Plaintiff argues that he has an “implied contact with the I.R.S. to receive Social Security payments from Treece’s employers which was then forwarded to the commissioner to hold in obligation toward Treece’s retirement_” Compl. ¶ 35. Plaintiff also argues that “there is and always has been an implied contract between him, and his employers and the Social Security Administration, to return these taxes to the participants who have earned enough credits to receive those benefits.” Compl. ¶ 73. Although plaintiff attempts to characterize his claim as a breach of an implied contract, it is the court’s view that plaintiffs claim is essentially an appeal of the SSA’s decision denying him Social Security benefits. “The Court of Federal Claims does not have jurisdiction over claims arising from the Social Security Act.” Addams-More v. United States, 81 Fed.Cl. 312, 315 (2008) (citing Marcus v. United States, 909 F.2d 1470,1471 (Fed.Cir.1990)), aff'd, 296 Fed.Appx. 45 (Fed.Cir.2008) (unpublished). Indeed, the Social Security Act confers exclusive jurisdiction upon federal district court for actions regarding Social" }, { "docid": "6495779", "title": "", "text": "Jurisdiction Originally enacted in 1887, the Tucker Act, 28 U.S.C. § 1491 (1988 & Supp. IV 1994), serves as the primary jurisdictional statute governing the type of claims reviewable by this court. United States v. Testan, 424 U.S. 392, 397-98, 96 S.Ct. 948, 952-53, 47 L.Ed.2d 114 (1976). This statute provides as follows: The United States Court of Federal Claims shall have jurisdiction to render judgment upon any claim against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States. 28 U.S.C. § 1491(a)(1). Although this statute confers threshold subject matter jurisdiction on this court by waiving the sovereign immunity of the United States under certain conditions, it does not, ipso facto, confer a substantive right on parties to recover money damages from the government. Testan, 424 U.S. at 398, 96 S.Ct. at 953; United States v. Mitchell, 463 U.S. 206, 212, 103 S.Ct. 2961, 2965, 77 L.Ed.2d 580 (1983) (“Mitchell II”); United States v. Mitchell, 445 U.S. 535, 538, 100 S.Ct. 1349, 1351-52, 63 L.Ed.2d 607 (1980) (“Mitchell I ”). It is well established, therefore, that such a substantive right to a payment of money from the government must be made with specificity and arise from either (1) an express or implied contract with the United States, (2) a prior payment made to the government for which a plaintiff seeks a refund, or (3) a federal constitutional, statutory, or regulatory law which “can fairly be interpreted as mandating compensation by the Federal Government for the damages sustained.” Testan, 424 U.S. at 400, 402, 96 S.Ct. at 954, 955; Eastport S.S. Corp. v. United States, 178 Ct.Cl. 599, 607, 372 F.2d 1002, 1009 (1967). It is this latter basis upon which plaintiff asserts this court’s jurisdiction over its claim. In short, Stinson contends that, coupled with § 1491, the FCA serves as a federal statute specifically mandating the payment of remedial compensation to qui tam relators such as itself, where the government has recovered proceeds in an “alternate remedy”" }, { "docid": "12928648", "title": "", "text": "jurisdiction is challenged, the nonmoving party “bears the burden of establishing subject matter jurisdiction by a preponderance of the evidence.” Reynolds v. Army and Air Force Exchange Serv., 846 F.2d 746, 748 (Fed.Cir.1988). If a motion to dismiss for lack of subject matter jurisdiction challenges the truth of the jurisdictional facts alleged in the complaint, this Court may consider relevant evidence to resolve disputed facts. Reynolds, 846 F.2d at 747; accord Thomson v. Gaskill, 315 U.S. 442, 446, 62 S.Ct. 673, 86 L.Ed. 951 (1942). In deciding a RCFC 12(b) motion to dismiss, the Court construes plaintiffs’ allegations in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974). If the Court finds jurisdiction lacking as a matter of law, dismissal is required. Ex Parte McCardle, 74 U.S. (7 Wall.) 506, 514, 19 L.Ed. 264 (1868); Thoen v. United States, 765 F.2d 1110, 1116 (Fed.Cir.1985). The Tucker Act confers jurisdiction on the Court to entertain a claim against the United States founded upon an express or implied contract. 28 U.S.C. § 1491(a)(1) (1988). The Tucker Act does not create a substantive right enforceable against the United States for money damages. United States v. Testan, 424 U.S. 392, 398, 96 S.Ct. 948, 47 L.Ed.2d 114 (1976); United States v. Mitchell, 463 U.S. 206, 216, 103 S.Ct. 2961, 77 L.Ed.2d 580 (1983) (claimant must demonstrate that the source of substantive law relied on mandates compensation for damages). The Contract Disputes Act (CDA), 41 U.S.C. § 602(a) (1994), provides the substantive basis for a money damage claim arising from an express contract with the United States. Pursuant to the Tucker Act, the Court has authority to render judgment upon “any claim by or against, or dispute with, a contractor arising under section 10(a)(1) of the Contract Disputes Act of 1978, ... and other non-monetary disputes on which a deci sion of the contracting officer has been issued under section 6 of the Act.” 28 U.S.C. § 1491(a)(2). The CDA applies to “any express or implied contract entered into by an executive agency.”" }, { "docid": "15960183", "title": "", "text": "of sovereign immunity “cannot be implied but must be unequivocally expressed.” King, 395 U.S. at 4, 89 S.Ct. 1501. Therefore, except when Congress consents to a cause of action against the United States, “there is no jurisdiction in the Court of Claims more than in any other court to entertain suits against the United States.” United States v. Sherwood, 312 U.S. 584, 587-88, 61 S.Ct. 767, 85 L.Ed. 1058 (1941). The Tucker Act, 28 U.S.C. § 1491 (2000), confers jurisdiction upon the Court of Federal Claims and waives sovereign immunity with respect to certain actions for monetary relief filed against the United States. United States v. Mitchell, 463 U.S. 206, 212-18, 103 S.Ct. 2961, 77 L.Ed.2d 580 (1983). Under the Tucker Act, sovereign immunity is waived for “any claim against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort.” 28 U.S.C. § 1491(a)(1). The Tucker Act itself, however, does not establish a substantive right of recovery. United States v. Mitchell, 445 U.S. 535, 538, 100 S.Ct. 1349, 63 L.Ed.2d 607 (1980); United States v. Testan, 424 U.S. 392, 398, 96 S.Ct. 948, 47 L.Ed.2d 114 (1976). The Tucker Act is merely a jurisdictional statute and “does not create any substantive right enforceable against the United States for money damages.” Testan, 424 U.S. at 398, 96 S.Ct. 948. Instead, the substantive right must appear in another source of law, such as a “money-mandating constitutional provision, statute or regulation that has been violated, or an express or implied contract with the United States.” Loveladies Harbor, Inc. v. United States, 27 F.3d 1545, 1554 (Fed.Cir. 1994). IV. DISCUSSION A. The Sherman Act and the Civil Rights Act Plaintiffs Complaint does not indicate clearly his theory for relief against defendant. Plaintiff states that he “brings this action against the government of the District of Maryland in conjunction with the Sherman Act in lieu unto [sic] Civil Rights Act of 1871," }, { "docid": "8828152", "title": "", "text": "to the face of the pleadings____”). If the court determines that it does not have jurisdiction, it must dismiss the claim. RCFC 12(h)(3). The Tucker Act establishes and limits the jurisdiction of the Court of Federal Claims. See 28 U.S.C. § 1491 (2012). The Tucker Act affords this court jurisdiction over claims “against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in eases not sounding in tort.” Id. § 1491(a)(1). Although the Tucker Act waives the sovereign immunity necessary for a plaintiff to sue the United States for money damages, United States v. Mitchell, 463 U.S. 206, 212, 103 S.Ct. 2961, 77 L.Ed.2d 580 (1983), it does not confer any substantive rights upon a plaintiff, United States v. Testan, 424 U.S. 392, 398, 96 S.Ct. 948, 47 L.Ed.2d 114 (1976). A plaintiff must establish an independent substantive right to money damages from the United States—that is, a money-mandating source within a contract, regulation, statute or eon stitutional provision—in order for the case to proceed. See Jan’s Helicopter Serv., Inc. v. Fed. Aviation Admin., 525 F.3d 1299, 1306 (Fed.Cir.2008). The CDA is such a money-mandating statute. The CDA confers upon this court the authority to adjudicate a claim for monetary damages arising from “any express or implied contract ... made by an executive agency for ... the procurement of property, other than real property in being.” 41 U.S.C. § 7102(a)(1); cf. Kelley v. United States, 19 Cl.Ct. 155, 160 (1989) (“Under the CDA, the [Court of Federal Claims] has jurisdiction to entertain claims arising from the lease of real property____”). B. Rule 12(b)(6) Motion to Dismiss for Failure to State a Claim A motion to dismiss pursuant to RCFC 12(b)(6) asserts a “failure to state a claim upon which relief can be granted.” RCFC 12(b)(6). To survive a Rule 12(b)(6) motion, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its" }, { "docid": "2119038", "title": "", "text": "100 S.Ct. 1349, 63 L.Ed.2d 607, reh’g denied, 446 U.S. 992, 100 S.Ct. 2979, 64 L.Ed.2d 849 (1980); United States v. Testan, 424 U.S. 392, 398-99, 96 S.Ct. 948, 47 L.Ed.2d 114 (1976); United States v. Connolly, 716 F.2d 882, 885 (Fed.Cir.1983) (era banc)). Instead, “to come within the jurisdictional reach and the waiver of the Tucker Act, a plaintiff must identify a separate source of substantive law that creates the right to money damages.” Fisher, 402 F.3d at 1172. In other words, the source must be money-mandating, in that it “ ‘can fairly be interpreted as mandating compensation by the Federal Government____’” Testan, 424 U.S. at 400, 96 S.Ct. 948 (quoting Eastport S.S. Corp. v. United States, 178 Ct.Cl. 599, 372 F.2d 1002, 1009 (1967) and citing Mosca v. United States, 189 Ct.Cl. 283, 417 F.2d 1382, 1386 (1969)); Khan v. United States, 201 F.3d 1375, 1377-78 (Fed.Cir.2000). If the provision relied upon is found to be money-mandating, the plaintiff need not rely upon a waiver of sovereign immunity beyond the Tucker Act. Huston v. United States, 956 F.2d 259, 261 (Fed.Cir.1992) (citing United States v. Mitchell, 463 U.S. 206, 218, 103 S.Ct. 2961, 77 L.Ed.2d 580 (1983)). II. Standard of Review: Motion to Dismiss for Lack of Subject Matter Jurisdiction, RCFC 12(b)(1) Jurisdiction may be challenged by the parties or by the court on its own initiative at any time, and if jurisdiction is found to be lacking, this court must dismiss the action. Rule 12(h)(3) of the Rules of the United States Court of Federal Claims (RCFC). The court’s determination of jurisdiction begins with an examination of the complaint, “which must be well-pleaded in that it must state the necessary elements of the plaintiffs claim, independent of any defense that may be interposed.” Holley v. United States, 124 F.3d 1462, 1465 (Fed.Cir.1997). In rendering a decision on a motion to dismiss for lack of subject matter jurisdiction, under RCFC 12(b)(1), this court must presume all undisputed factual allegations to be true, and construe all reasonable inferences in favor of the plaintiff. Scheuer v. Rhodes, 416 U.S. 232," }, { "docid": "14908822", "title": "", "text": "to the plaintiffs’ March 2006 request for a due process hearing, which had been untimely. In its decision letter dated November 17, 2006, the IRS concluded that the levy was appropriate. Pis.’ Ex. 4. DISCUSSION I. Jurisdiction The Court of Federal Claims is a court of “limited jurisdiction.” United States v. King, 395 U.S. 1, 3, 89 S.Ct. 1501, 23 L.Ed.2d 52 (1969). General jurisdiction of the Court of Federal Claims is derived from the Tucker Act, 28 U.S.C. § 1491 (2000). The Tucker Act provides that an action may be maintained in the Court of Federal Claims only if it is “founded upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort.” 28 U.S.C. § 1491(a)(1). The Tucker Act itself “does not create any substantive right enforceable against the United States for money damages.” United States v. Testan, 424 U.S. 392, 398, 96 S.Ct. 948, 47 L.Ed.2d 114 (1976). Rather, “in order to come within the jurisdictional reach and the waiver of the Tucker Act, a plaintiff must identify a separate source of substantive law that creates the right to money damages.” Fisher v. United States, 402 F.3d 1167, 1172 (Fed.Cir.2005). See also Testan, 424 U.S. at 398, 96 S.Ct. 948; United States v. Mitchell, 463 U.S. 206, 215-216, 103 S.Ct. 2961, 77 L.Ed.2d 580 (1983); Eastport S.S. Corp. v. United States, 178 Ct.Cl. 599, 607, 372 F.2d 1002 (1967). Thus, in order to establish jurisdiction, the plaintiffs must allege a money-mandating claim. The issue of whether the plaintiffs have alleged a money-mandating claim has led to some confusion over whether the plaintiffs’ failure to do so leads to dismissal under RCFC 12(b)(1) for lack of jurisdiction or RCFC 12(b)(6) for failure to state a claim upon which relief can be granted. The United States Court of Appeals for the Federal Circuit has recently stated that the Court of Federal Claims should analyze the issue as follows: [W]hen a claim is" }, { "docid": "178352", "title": "", "text": "to transfer the third-party complaint in the Fund’s suit to this court, New Anchor and Tank voluntarily dismissed its third-party complaint in OEG’s action and pursued the instant action in this court. Id. MOTION TO DISMISS A. Subject Matter Jurisdiction The Tucker Act, 28 U.S.C. § 1491, grants this court jurisdiction over claims “against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liqui dated or unliquidated damages in cases not sounding in tort.” 28 U.S.C. § 1491(a)(1). “Because the Tucker Act ‘does not confer any substantive rights upon a plaintiff,’ the plaintiff[s] also ‘must establish an independent substantive right to money damages from the United States — that is, a money-mandating source within a contract, regulation, statute or constitutional provision — in order for the case to proceed.’ ” Laughlin v. United States, 124 Fed.Cl. 374, 381 (2015) (quoting Volk v. United States, 111 Fed.Cl. 313, 323 (2013) (in turn citing United States v. Testan, 424 U.S. 392, 398, 96 S.Ct. 948, 47 L.Ed.2d 114 (1976); Jan’s Helicopter Serv., Inc. v. FAA, 525 F.3d 1299, 1306 (Fed.Cir. 2008))), appeal docketed, No. 16-1627 (Fed. Cir. Feb. 24, 2016). The court must dismiss any claims for which it determines that it does not have subject matter jurisdiction. See RCFC 12(h)(3). New Anchor and Tank, as plaintiffs in this instance, must establish this court’s subject matter jurisdiction by a preponderance of the evidence before the court can proceed to the merits of them claims. See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 88-89, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998); Taylor v. United States, 303 F.3d 1357, 1359 (Fed.Cir.2002); Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 748 (Fed.Cir.1988). When considering a motion to dismiss for lack of subject matter jurisdiction under RCFC 12(b)(1), the court will “normally consider the facts alleged in the complaint to be true and correct.” Reynolds, 846 F.2d at 747 (citing Scheuer v. Rhodes, 416 U.S." }, { "docid": "2119723", "title": "", "text": "Government filed an Opposition. On February 7, 2007, the court issued an Order granting Plaintiffs’ January 27, 2007 Ex Parte Motion for Leave to File a Supplemental Memorandum. On February 21, 2007, Plaintiffs filed a Supplemental Memorandum in Opposition to Defendant’s Motion to Dismiss. III. DISCUSSION. A. Jurisdiction. The Tucker Act, 28 U.S.C. § 1491(a)(1), authorizes the United States Court of Federal Claims to render judgment and money damages on any claim against the United States based on the United States Constitution, an Act of Congress, a regulation of an executive department, or an express or implied contract with the United States. See United States v. Mitchell, 463 U.S. 206, 212-18, 103 S.Ct. 2961, 77 L.Ed.2d 580 (1983); see also United States v. Testan, 424 U.S. 392, 397-98, 96 S.Ct. 948, 47 L.Ed.2d 114 (1976). The United States Supreme Court, however, has held that the Tucker Act does not create any substantive right for money damages. See Mitchell, 463 U.S. at 216, 103 S.Ct. 2961; see also Testan, 424 U.S. at 398, 96 S.Ct. 948. Therefore, a plaintiff must identify and plead an independent contractual relationship, constitutional provision, federal statute, and/or executive agency regulation that provides a substantive right to money damages in order for the court to have jurisdiction. See Khan v. United States, 201 F.3d 1375, 1377 (Fed.Cir.2000). In determining whether the United States Court of Federal Claims has jurisdiction over a claim, the United States Court of Appeals for the Federal Circuit has instructed that “the trial court at the outset shall determine ... whether the Constitutional provision, statute, or regulation is one that is money-mandating. If the court’s conclusion is that the Constitutional provision, statute, or regulation meets the money-mandating test, the court shall declare it has jurisdiction over the cause, and shall then proceed with the ease in the normal course.” Fisher v. United States, 402 F.3d 1167, 1173 (Fed.Cir.2005) (era banc). B. Standard of Review—RCFC 12(b)(1). A motion to dismiss may be brought to challenge the court’s subject matter jurisdiction at any time. See RCFC 12(b)(1). In order to establish subject matter jurisdiction, Plaintiffs" }, { "docid": "7115225", "title": "", "text": "filed a Motion To Dismiss, pursuant to RCFC 12(b)(1) and RCFC 12(b)(6) (“Gov’t Mot”). On June 30, 2009, Plaintiff filed a Response (“PL Resp.”). On July 17, 2009, the Government filed a Reply (“Gov’t Reply”). III. DISCUSSION. A. Jurisdiction. The Tucker Act, 28 U.S.C. § 1491(a)(1), authorizes the United States Court of Federal Claims to render judgment and money damages on any claim against the United States based on: the United States Constitution; an Act of Congress; a regulation of an executive department; or an express or implied contract with the United States. United States v. Mitchell, 463 U.S. 206, 212-18, 103 S.Ct. 2961, 77 L.Ed.2d 580 (1983); see also United States v. Testan, 424 U.S. 392, 397-98, 96 S.Ct. 948, 47 L.Ed.2d 114 (1976). The United States Supreme Court, however, has held that the Tucker Act does not create any substantive right for money damages. Mitchell, 463 U.S. at 216, 103 S.Ct. 2961; see also Testan, 424 U.S. at 398, 96 S.Ct. 948. Therefore, a complaint filed in the United States Court of Federal Claims also must identify and plead an independent contractual relationship, or a constitutional provision, federal statute, and/or executive agency regulation that provides a substantive right to money damages in order for the court to have jurisdiction. Todd v. United States, 386 F.3d 1091, 1094 (Fed.Cir.2004) (“[J]urisdiction under the Tucker Act requires the litigant to identify a substantive right for money damages against the United States separate from the Tucker Act[.]”). In determining whether the United States Court of Federal Claims has jurisdiction over a claim, the United States Court of Appeals for the Federal Circuit has instructed that “the trial court at the outset shall determine ... whether the Constitutional provision, statute, or regulation is one that is money-mandating. If the court’s conclusion is that the Constitutional provision, statute, or regulation meets the money-mandating test, the court shall declare it has jurisdiction over the cause, and shall then proceed with the ease in the normal course.” Fisher v. United States, 402 F.3d 1167, 1173 (Fed.Cir.2005). B.Standard For Decision On A Motion To Dismiss, Pursuant To" }, { "docid": "4597454", "title": "", "text": "RCFC 12(h)(3). The Tucker Act establishes and limits the jurisdiction of the Court of Federal Claims. 28 U.S.C. § 1491 (2006). The Tucker Act provides that this court has jurisdiction over “any claim against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in eases not sounding in tort.” 28 U.S.C. § 1491(a)(1). The Tucker Act provides the waiver of sovereign immunity necessary for a plaintiff to sue the United States for money damages. United States v. Mitchell, 463 U.S. 206, 212, 103 S.Ct. 2961, 77 L.Ed.2d 580 (1983). However, the Tucker Act does not confer any substantive rights upon a plaintiff. United States v. Testan, 424 U.S. 392, 398-401, 96 S.Ct. 948, 47 L.Ed.2d 114 (1976). A plaintiff must establish an independent substantive right to money damages from the United States, that is, a money-mandating source within a contract, regulation, statute or constitutional provision itself, in order for the case to proceed. Jan’s Helicopter Serv., Inc. v. Fed. Aviation Admin., 525 F.3d 1299, 1306 (Fed.Cir.2008). B. Transfer for Lack of Subject Matter Jurisdiction Under 28 U.S.C. § 1631, a federal court may transfer a case to another federal court when (1) the transferring court lacks subject matter jurisdiction; (2) the case could have been brought in the transferee court at the time it was filed; and (3) such a transfer is in the interest of justice. See Rodriguez v. United States, 862 F.2d 1558, 1559-60 (Fed.Cir.1988) (citing Town of North Bonneville, Wash. v. U.S. District Court, 732 F.2d 747, 750 (9th Cir.1984)). III. Discussion For the following reasons, all of plaintiffs claims are dismissed for lack of subject matter jurisdiction pursuant to RCFC 12(b)(1). Additionally, the court finds that transfer of plaintiffs ease to another federal court is inappropriate. A Denial of Social Security Benefits Plaintiff attempts to invoke the court’s jurisdiction under the Tucker Act to appeal the SSA’s decision denying him Social Security benefits while he is incarcerated. See" }, { "docid": "4597453", "title": "", "text": "v. Citizens for a Better Env’t, 523 U.S. 83, 94, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998); PODS, Inc. v. Porta Stor, Inc., 484 F.3d 1359, 1365 (Fed.Cir.2007). The plaintiff bears the burden of establishing the court’s jurisdiction by a preponderance of the evidence. Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 748 (Fed.Cir.1988) (citing Zunamon v. Brown, 418 F.2d 883, 886 (8th Cir.1969)). The court must accept as true all undisputed allegations of fact made by the non-moving party and draw all reasonable inferences from those facts in the non-moving party’s favor. Henke v. United States, 60 F.3d 795, 797 (Fed.Cir.1995). Complaints filed by pro se plaintiffs are generally held to “less stringent standards than formal pleadings drafted by lawyers.” Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972). Nevertheless, pro se plaintiffs must meet jurisdictional requirements. Bernard v. United States, 59 Fed.Cl. 497, 499, aff'd, 98 Fed.Appx. 860 (Fed.Cir.2004) (unpublished). If the court determines that it does not have jurisdiction, it must dismiss the claim. RCFC 12(h)(3). The Tucker Act establishes and limits the jurisdiction of the Court of Federal Claims. 28 U.S.C. § 1491 (2006). The Tucker Act provides that this court has jurisdiction over “any claim against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in eases not sounding in tort.” 28 U.S.C. § 1491(a)(1). The Tucker Act provides the waiver of sovereign immunity necessary for a plaintiff to sue the United States for money damages. United States v. Mitchell, 463 U.S. 206, 212, 103 S.Ct. 2961, 77 L.Ed.2d 580 (1983). However, the Tucker Act does not confer any substantive rights upon a plaintiff. United States v. Testan, 424 U.S. 392, 398-401, 96 S.Ct. 948, 47 L.Ed.2d 114 (1976). A plaintiff must establish an independent substantive right to money damages from the United States, that is, a money-mandating source within a contract, regulation, statute or constitutional provision itself, in" }, { "docid": "8828151", "title": "", "text": "Subject Matter Jurisdiction “When considering a motion to dismiss for lack of subject matter jurisdiction under RCFC 12(b)(1), the Court accepts as true the undisputed allegations in the complaint and draws all reasonable inferences in favor of the plaintiff.” Low v. United States, 90 Fed.Cl. 447, 450 (2009). The plaintiff bears the burden of establishing the court’s jurisdiction by a preponderance of the evidence. Reynolds v. Army & Air Force Exch. Serv., 846 F.2d 746, 748 (Fed.Cir.1988); Arakaki v. United States, 62 Fed.Cl. 244, 247 (2004). A dismissal under RCFC 12(b)(1) “is warranted when, assuming the truth of all allegations, jurisdiction over the subject matter is lacking.” Arakaki 62 Fed.Cl. at 247 (internal quotation marks omitted). “When a party challenges the jurisdictional facts alleged in the complaint, the court may consider relevant evidence outside the pleadings to resolve the factual dispute.” Id. (citing Reynolds, 846 F.2d at 747); see 2 James Wm. Moore et ah, Moore’s Federal Practice ¶ 12.30[3] (3d ed. 2013) (“[U]nlike a Rule 12(b)(6) dismissal, the court need not confine its evaluation to the face of the pleadings____”). If the court determines that it does not have jurisdiction, it must dismiss the claim. RCFC 12(h)(3). The Tucker Act establishes and limits the jurisdiction of the Court of Federal Claims. See 28 U.S.C. § 1491 (2012). The Tucker Act affords this court jurisdiction over claims “against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in eases not sounding in tort.” Id. § 1491(a)(1). Although the Tucker Act waives the sovereign immunity necessary for a plaintiff to sue the United States for money damages, United States v. Mitchell, 463 U.S. 206, 212, 103 S.Ct. 2961, 77 L.Ed.2d 580 (1983), it does not confer any substantive rights upon a plaintiff, United States v. Testan, 424 U.S. 392, 398, 96 S.Ct. 948, 47 L.Ed.2d 114 (1976). A plaintiff must establish an independent substantive right to money damages from the United States—that is," }, { "docid": "6495778", "title": "", "text": "before this court, on this distinction, seeking an award of monetary remedial compensation to which it is legally entitled in view of its injury and which defendant is illegally withholding. II. DISCUSSION A. Motion to Dismiss Plaintiff bears the burden, at the threshold, of proving by a preponderance of the evidence this court’s subject matter jurisdiction over its claims. Booth v. United States, 990 F.2d 617, 619 (Fed.Cir.1993); Reynolds v. Army and Air Force Exch. Serv., 846 F.2d 746, 748 (Fed.Cir.1988) (see citations therein). In reviewing the propriety of defendant’s motion to dismiss for lack of subject matter jurisdiction pursuant to RCFC 12(b)(1), this court must, of course, consider the unchallenged jurisdictional facts alleged in the complaint to be true. Reynolds, 846 F.2d at 747; W.R. Cooper Gen. Contractor, Inc. v. United States, 843 F.2d 1362, 1364 (Fed.Cir.1988). On the other hand, where the motion to dismiss challenges the jurisdictional facts alleged, this court “may consider relevant evidence in order to resolve the factual dispute.” Reynolds, 846 F.2d at 747 (citations omitted). B. Tucker Act Jurisdiction Originally enacted in 1887, the Tucker Act, 28 U.S.C. § 1491 (1988 & Supp. IV 1994), serves as the primary jurisdictional statute governing the type of claims reviewable by this court. United States v. Testan, 424 U.S. 392, 397-98, 96 S.Ct. 948, 952-53, 47 L.Ed.2d 114 (1976). This statute provides as follows: The United States Court of Federal Claims shall have jurisdiction to render judgment upon any claim against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States. 28 U.S.C. § 1491(a)(1). Although this statute confers threshold subject matter jurisdiction on this court by waiving the sovereign immunity of the United States under certain conditions, it does not, ipso facto, confer a substantive right on parties to recover money damages from the government. Testan, 424 U.S. at 398, 96 S.Ct. at 953; United States v. Mitchell, 463 U.S. 206, 212, 103 S.Ct. 2961, 2965, 77 L.Ed.2d 580 (1983) (“Mitchell II”); United States" } ]

[ { "docid": "22874120", "title": "", "text": "to raise an affirmative defense in the appropriate pleading results in waiver, see 5 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1278 (1990), there is ample authority in this Circuit for the proposition that absent unfair surprise or prejudice to the plaintiff, a defendant’s affirmative defense is not waived when it is first raised in a pre-trial dispositive motion, see Peterson v. Airline Pilots Ass’n, 759 F.2d 1161, 1164 (4th Cir.1985) (holding that waiver is not automatic, but requires a showing of prejudice or unfair surprise); see also American Recovery Corp. v. Computerized Thermal Imaging, Inc., 96 F.3d 88, 96 (4th Cir.1996) (evaluating prejudice to plaintiff when considering timeliness of affirmative defense of arbitration); Nasim v. Warden, 42 F.3d 1472, 1475-76 (4th Cir.) (noting that, in limited circumstances, affirmative defense of statute of limitations need not be raised in answer if demonstrated conclusively on the face of the complaint), vacated on other grounds, 64 F.3d 951 (4th Cir.1995) (en banc); Polsby v. Chase, 970 F.2d 1360, 1364 (4th Cir.1992) (noting that affirmative defenses may be pleaded in pre-trial motions and that the district court did not abuse its discretion by permitting defendant to raise an affirmative defense after the answer); vacated and remanded on other grounds, 507 U.S. 1048, 113 S.Ct. 1940, 123 L.Ed.2d 646 (1993). This view is in accord with the vast majority of our sister circuits. See, e.g., Blaney v. United States, 34 F.3d 509, 512 (7th Cir.1994) (stating that an unplead-ed untimeliness defense could be raised in motion to dismiss); Camarillo v. McCarthy, 998 F.2d 638, 639 (9th Cir.1993) (holding that an affirmative defense may be raised at summary judgment absent prejudice to opposing party); Moore, Owen, Thomas & Co. v. Coffey, 992 F.2d 1439, 1445 (6th Cir.1993) (asserting that an affirmative defense may be raised in response to summary judgment motion); Kleinknecht v. Gettysburg College, 989 F.2d 1360, 1374 (3d Cir.1993) (noting that an affirmative defense may be raised at summary judgment absent prejudice); Ball Corp. v. Xidex Corp., 967 F.2d 1440, 1443-44 (10th Cir.1992) (raising affirmative defense in summary" } ]

[ { "docid": "2872041", "title": "", "text": "implied from conduct, where (1) the author creates .a work at another’s request, (2) delivers the work to that person, and (3) intends that that person copy and distribute it. See Garcia v. Google, Inc., 766 F.3d 929, 936-37 (9th Cir.2014); Baisden v. I’m Ready Prod., Inc., 693 F.3d 491, 501 (5th Cir.2012); Latimer v. Roaring Toyz, Inc., 601 F.3d 1224, 1235 (11th Cir.2010); Atkins v. Fischer, 331 F.3d 988, 991-92 (D.C.Cir.2003); Nelson-Salabes, Inc. v. Morningside Dev., LLC, 284 F.3d 505, 514 (4th Cir.2002); Kennedy v. Nat’l Juvenile Detention Ass’n, 187 F.3d 690, 694 (7th Cir.1999). “[D]elivery” of the work by the author to the other party is “not disposi-tive, but [is] one factor that may be relied upon in determining that an implied license has been granted.” Asset Marketing Sys., Inc. v. Gagnon, 542 F.3d 748, 755 n. 4 (9th Cir.2008) (citation omitted). Some courts have relaxed this test, focusing on “whether there was a ‘meeting of the minds’ between the parties to permit the particular usage at issue.” Psihoyos v. Pearson Educ., Inc., 855 F.Supp.2d 103, 124 (S.D.N.Y.2012). Whatever the formulation, courts only imply a nonexclusive license in “narrow circumstances.” SmithKline Beecham Consumer Healthcare, L.P. v. Watson Pharma., Inc., 211 F.3d 21, 25 (2d Cir.2000) (citation omitted). Such a license is revocable until such time as the agreed-upon consideration is paid, Asset Marketing, 542 F.3d at 757, and even where full payment is a covenant rather than a condition to the granting of the license, “[a] máterial breach of a covenant will allow the licensor to rescind the license and hold the licensee liable for infringement for uses of the work thereafter.” Graham v. James, 144 F.3d 229, 237 (2d Cir.1998). The existence of an implied license is an affirmative defense to infringement. Atkins, 331 F.3d at 992. “[Generally, failure to plead an affirmative defense in the answer results in the waiver of that defense and its exclusion from the case.” Sompo Japan Ins. Co. of Am. v. Norfolk So. Ry. Co., 762 F.3d 165, 176 (2d Cir.2014) (citation omitted). 1. Graphics Copyright Smith and D’Angelo created the" }, { "docid": "1910204", "title": "", "text": "1092, 1115 (D.C.Cir.1985) (\"[A] motion to dismiss may be granted on the basis that the action is time-barred only when it appears from the face of the complaint that the relevant statute of limitations bars the action[.]” (footnote omitted) (citations omitted)). See also 5A Charles Alan Wright, Arthur R. Miller, Mary Kay Kane, Richard L. Marcus & Adam N. Steinman, Federal Practice and Procedure: Civil § 1357, at 348-49 (1990) (stating that under Rule 12(b)(6), a complaint is subject to dismissal only if the affirmative defense clearly appears on the face of the pleading). . \"[T]he statute of limitations is an affirmative defense....” Aldrich v. McCulloch Props., Inc., 627 F.2d 1036, 1041 n. 4 (10th Cir.1980) (citations omitted). See also John R. Sand & Gravel Co. v. United States, 552 U.S. 130, 133, 128 S.Ct. 750, 169 L.Ed.2d 591 (2008) (\"[T]he law typically treats a limitations defense as an affirmative defense that the defendant must raise at the pleadings stage[.]” (citations omitted)). . See Harris v. New York, 186 F.3d 243, 251 (2d Cir.1999) (stating that the plaintiff had no obligation in the amended complaint to \"identify any time element” because \"the statute of limitations is an affirmative defense” and the plaintiff had no obligation to anticipate this issue in his pleading); Goodman v. Praxair, Inc., 494 F.3d 458, 465-66 (4th Cir.2007) (concluding that the plaintiff had no obligation to state in the complaint when the alleged contractual breach had taken place); Hollander v. Brown, 457 F.3d 688, 691 n. 1 (7th Cir.2006) (\"[A] federal complaint does not fail to state a claim simply because it omits facts that would defeat a statute of limitations defense[.]”). . The Court uses the term \"definitively establish” to refer to meeting the so-called \"third burden of proof,” the quantum of evidence at which a court will rule in favor of the party with the burden of persuasion. See Wright et al., supra § 5122 (stating that, in the trial context, the “third burden of proof” is the quantum of evidence required to entitle the plaintiff to a directed verdict or judgment as a" }, { "docid": "17416323", "title": "", "text": "prove that copied elements were protectable expression. According to GUS, all courts acknowledge that once copying is proven, the burden shifts to the defendant to prove that the material taken was not copyrightable. GUS argued that, having proven factual copying through a showing of access plus probative similarity, the burden should have been placed on HAL to prove that the material taken was unprotectable. Because GUS failed to brief this issue, however, we will not consider it here. See Comsat Corp. v. FCC, 250 F.3d 931, 936 n. 5 (5th Cir.2001) (\"Arguments presented for the first time at oral argument are waived.”). We note, however, that at least one appellate court disagrees with GUS’s argument. See MiTek Holdings, Inc. v. Arce Engineering Co., Inc., 89 F.3d 1548, 1555 (11th Cir.1996) (\"Perhaps the best approach for a district court in any computer program infringement case, whether involving literal or nonliteral elements, is for it to require the copyright owner to inform the court as to what aspects or elements of its computer program it considers to be protecta-ble. This will serve as the starting point for the court's copyright infringement analysis.”). .Opinion and Order, No. H-95-1582, at 2 (S.D.Tex. June 4, 1998) (order granting partial summary judgment) (emphasis added). . Holtzclaw v. DSC Communications Corp., 255 F.3d 254, 258 (5th Cir.2001). . Moreover, even if the court's decision to grant HAL summary judgment were somehow a sua sponte decision, it was not improper. In general, a district court may grant summary judgment sua sponte \"so long as the losing party was on notice that she had to come forward with all of her evidence.” Celotex v. Catrett, 477 U.S. 317, 326, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (\"[Djistrict courts are widely acknowledged to possess the power to enter summary judgments sua sponte, so long as the losing party was on notice that she had to come forward with all of her evidence.”); Judwin Properties, Inc. v. United States Fire Ins. Co., 973 F.2d 432, 436-37 (5th Cir.1992); see also Charles Alan Wright, Arthur R. Miller, & Mary Kay Kane, 10A" }, { "docid": "23454947", "title": "", "text": "PAUL KELLY, Jr., Circuit Judge. This dispute arises over the ownership of a painting by the American Impressionist, Theodore Robinson, entitled Summer Hillside, Givemy. As personal representative of the estate of his father, Robert W. Hutchinson, Thomas R. Hutchinson brought an action in which he claimed that he was the owner of an undivided one-third interest in the painting. He sought a declaration of his ownership, partition of Summer Hillside, and an accounting. Mr. Hutchinson claims his interest in the painting by descent. The district court granted summary judgment in favor of Defendants Richard and Mary Jo Pfeil. Mr. Hutchinson now appeals, raising five contentions. We have considered all of Mr. Hutchinson’s arguments in support of each of-his contentions, but discuss only those necessary to our decision. At oral argument, the issue of whether the district court properly exercised in personam jurisdiction over the Defendants was raised. Although the Defendants argued this issue below, they did not cross-appeal and it consequently has been waived. Mr. Hutchinson argues that the district court erred in granting summary judgment in favor of the Defendants on the affirmative defense of laches. We review the district court’s grant of summary judgment de novo, applying the same standard used by the district court. United States v. City & County of Denver, 100 F.3d 1509, 1512 (10th Cir.1996). Summary judgment is appropriate if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986); Fed. R.Civ.P. 56(c). A defendant may use a motion for summary judgment to test an affirmative defense which entitles that party to a judgment as a matter of law. The defendant making such a motion must demonstrate that no disputed material fact exists regarding the affirmative defense asserted. Miller v. Shell Oil Co., 345 F.2d 891, 893 (10th Cir.1965); Zenith Elecs. Corp. v. Panalpina, Inc., 68 F.3d 197, 201 (7th Cir.1995); 10A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and" }, { "docid": "8212013", "title": "", "text": "(implied license does not convey copyright, but only right to use work “in a particular manner”). The district court, apparently looking to the third requirement of the implied-license test — that the licensor intends that the licensee-requestor copy and distribute her work — found that the facts showed that Ali authorized the making of the lithographs no matter which side bore the burden of proof. We have serious doubts about its reasoning on this point. Nonetheless, because The Final Call presented no evidence to satisfy the first two elements needed to show an implied license, we need not belabor the problems with the third element. 2 The district court’s verdict also alluded to the first-sale defense, though the court made no clear ruling on this theory. Ordinarily, Federal Rule of Civil Procedure 8(c) requires that affirmative defenses be raised in the pleadings. Such a defense will be waived if raised later, however, “only if the plaintiff was harmed as a result.” Curtis v. Timberlake, 436 F.3d 709, 711 (7th Cir. 2005) (collecting cases). The district court found that Ali was not prejudiced by a late-raised first-sale defense. That would be all well and good if The Final Call had ever raised the first-sale defense. But it did not. A court generally may raise an affirmative defense sua sponte only if “the existence of a valid affirmative defense is so plain from the face of the complaint that the suit can be regarded as frivolous.” Walker v. Thompson, 288 F.3d 1005, 1009-10 (7th Cir. 2002) (collecting cases and noting that this limitation is necessary to assure “[appropriate caution in [the rule’s] exercise”); but see Coleman v. Ramada Hotel Operating Co., 933 F.2d 470, 475 (7th Cir. 1991) (finding no error in district court’s sua sponte consideration of defense not raised where there was “substantial overlap” between it and a defense that was raised, and there was no prejudice). The Final Call seems to argue that the first-sale defense is related to whether the lithographs at issue were authorized, but first-sale is different from authorization. Even if we assume for the sake" }, { "docid": "20172422", "title": "", "text": "Howell Petroleum Corp. v. Leben Oil Corp., 976 F.2d 614, 620 (10th Cir.1992) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 326, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)); see Holmes v. Utah, Dep’t of Workforce Servs., 483 F.3d 1057, 1067 (10th Cir.2007). “If a losing party was not prejudiced by the lack of notice, we will not reverse simply because the grant of summary judgment came sua sponte.” Ward v. Utah, 398 F.3d 1239, 1245-46 (10th Cir.2005). “A party is procedurally prejudiced if it is surprised by the district court’s action and that surprise results in the party’s failure to present evidence in support of its position.” Bridgeway Corp. v. Citibank, 201 F.3d 134, 139 (2d Cir.2000). In this case, Mr. Kannady cannot demonstrate prejudice because he clearly knew that the date of the alleged discrimination would be an issue, and he had a full opportunity to present evidence to support his position. After all, it was Mr. Kannady — not Krebs — who raised this issue in his motion for summary judgment. When a district court’s sua sponte determination is based on issues identical to those raised by a moving party, the risk of prejudice is significantly lowered because “the judge already is engaged in determining whether a genuine issue of material fact exists and the parties have been given an opportunity to present evidence designed either to support or refute the request for the entry of judgment.” 10A Charles Alan Wright, Arthur R. Miller, Mary Kay Kane, Federal Practice and Procedure § 2720 (3d ed.1998); see Bridgeway Corp., 201 F.3d at 140 (“The threat of procedural prejudice is greatly diminished if the court’s sua sponte' determination is based on issues identical to those raised by the moving party.” (brackets and internal quotation marks omitted)); see also Jones v. Salt Lake County, 503 F.3d 1147, 1152 (10th Cir.2007) (holding that plaintiffs were not prejudiced where they previously had filed a motion for partial summary judgment on the issues on which the court granted summary judgment sua sponte); Hynes v. Squillace, 143 F.3d 653, 656-57 (2d Cir.1998) (noting that" }, { "docid": "23607013", "title": "", "text": "such. 2. Did the District Court Err by Raising Fair Use Sua Sponte? Failure to plead an affirmative defense generally results in a waiver of that defense. See Jackson v. Seaboard Coast Line R. Co., 678 F.2d 992,1012 (11th Cir.1982); Fed.R.Civ.P. 8(c) (“In responding to a pleading, a party must affirmatively state any avoidance or affirmative defense”). Furthermore, “[c]ourts generally lack the ability to raise an affirmative defense sua sponte.” Hutcherson v. Lauderdale County, Tenn., 326 F.3d 747, 757 (6th Cir.2003). Exceptions to this rule include timeliness objections to habeas petitions, even where the government has failed to plead timeliness as an affirmative defense. See, e.g., Jackson v. Sec’y for Dept. of Com., 292 F.3d 1347, 1349 (11th Cir.2002) (holding that “the district court possessed the discretion to raise sua sponte the timeliness issue”); Hill v. Braxton, 277 F.3d 701, 706 (4th Cir.2002) (holding that a district court has the power to raise the limitations defense sua sponte because “[t]he one-year limitations period implicates values beyond the interests of the parties”). Defendant-appellees cite Yellen v. Cooper as an example of courts considering affirmative defenses sua sponte. 828 F.2d 1471 (10th Cir.1987). In Yellen, the Tenth Circuit affirmed the district court’s sua sponte grant of summary judgment based on an unpleaded affirmative defense, where the defense was obvious from the face of the complaint. Id. at 1474-75. The court reasoned that the policy underlying Rule 8(c) was to afford the plaintiff adequate notice of unanticipated defenses and, because the affirmative defense was obvious from the face of the complaint, the defense was not unanticipated in that case. Id. at 1476. Relying primarily on Yellen, defendantappellees argue that courts have discretion to consider certain defenses sua sponte where the applicable law reflects competing policy decisions. However, neither Yellen nor the Jackson line of cases provide justification for allowing courts to raise sua sponte every issue that implicates competing policy concerns. Rather, those cases give courts leeway to dismiss claims based on affirmative defenses that promote judicial efficiency, even where the defendants fail to raise those claims themselves. The rationale underlying the Jackson" }, { "docid": "20634551", "title": "", "text": "Appellants than individual actions would be, it is not the task of the federal court to create class-action rules that favor those with whom we empathize. . Appellants do argue in their reply brief that the district court erred in concluding that the individual issues presented by the statute of limitations defense prevented common issues from predominating, but those arguments come too late. See Edwards v. City of Goldsboro, 178 F.3d 231, 241 n. 6 (4th Cir.1999) (noting that issues omitted from opening brief are considered waived). . In Broussard v. Meineke Discount Muffler Shops, Inc., 155 F.3d 331 (4th Cir.1998), we held that \"when the defendant's affirmative defenses (such as the statute of limitations) may depend on facts peculiar to each plaintiff’s case, class certification is erroneous [under Rule 23(a)].” Id. at 342. Similarly, in Gunnells v. Healthplan Servs., Inc., 348 F.3d 417 (4th Cir.2003) we cited Broussard for the proposition that when a statute of limitations defense \"would require individualized inquiry in at least some cases ... 'class certification is erroneous' [under Rule 23(b)(3)].” Id. at 438. The parties devoted substantial portions of their respective briefs arguing whether these cases set forth a per se rule that certification is improper under Rule 23(a) (Broussard) and Rule 23(b)(3) (Gunnells) whenever the defendant raises a statute of limitations defense that requires individual hearings. Because Appellants challenged only the district court's finding that Jefferson-Pilot's statute of limitations defense was not a common issue, we need not decide whether Broussard and Gunnells set forth such a per se rule. .For a class to be certified under Rule 23(b)(2), it must also satisfy Rule 23(a). As we did in the Rule 23(b)(3) context, we also assume here that Appellants satisfied Rule . 23(a). . Indeed, Rule 23(b)(2) was created to facilitate civil rights class actions. See 7AA Charles Allen Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 1775 (3d ed.2005). . Unlike Rule 23(b)(3), Rule 23(b)(2) neither requires that absent class members be given notice of class certification nor allows class members the opportunity to opt-out of the" }, { "docid": "22200764", "title": "", "text": "the City’s municipal boundaries. Although we conclude that the district court properly granted summary judgement sua sponte to Appellee BGHA with respect to Appellants’ claim arising under section 601, our review of the record compels the conclusion that Appellants were not afforded a sufficient opportunity to be heard on their disparate impact claim arising from the regulations promulgated under section 602 of Title VI. A district court possesses the power to enter summary judgment sua sponte provided the losing party “was on notice that she had to come forward with all of her evidence.” Celotex Corp. v. Catrett, 477 U.S. 317, 326, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Under Fed.R.Civ.P. 56(c), motions for summary judgment must be served on opponents at least ten days prior to the hearing. As we have long recognized, “this notice provision is not an unimportant technicality, but a vital procedural safeguard” to a party’s right to offer the best defense to any challenge. Massey v. Congress Life Ins. Co., 116 F.3d 1414, 1417 (11th Cir.1997) (citing National Fire Ins. v. Bartolazo, 2.1 F.3d 518, 520 (11th Cir.1994); Hanson v. Polk County Land, Inc., 608 F.2d 129, 131 (5th Cir. 1979)). But so long as the party against whom judgment will be entered is given sufficient advance notice and has been afforded an adequate opportunity to demonstrate why summary judgment should not be granted, then granting summary judgment sua sponte is entirely appropriate. See 10A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2720 (3d ed.1998). Appellants could survive summary judgment on their claim arising under section 601 only if they establish a genuine issue of material fact as to the BGHA’s discriminatory intent after June 13, 1991, four years prior to the initiation of this lawsuit. Appellants’ § 1983 claims also required proof of discriminatory intent during that same period. However, because Appellants themselves moved for summary judgment on their § 1983 claims, it follows that they, in fact, had more than reasonable opportunity to marshal the same evidence of intent in support of their Title VI" }, { "docid": "11073499", "title": "", "text": "the following distinction, under Federal Rule of Civil Procedure 8(c), Skanska's failure to invoke the arbitration clause in its answer to Patten's complaint arguably constitutes a waiver of that right, and thus an issue that is seemingly distinct from whether Skanska’s participation in the litigation during the resulting delay in asserting that right amounts to a default under the FAA. However, it is well established that an affirmative defense is not waived absent unfair surprise or prejudice. See, e.g., S. Wallace Edwards & Sons, Inc. v. Cincinnati Ins. Co., 353 F.3d 367, 373-74 (4th Cir.2003). Because both rules require a showing of prejudice, we do not consider these to be distinct issues. Cf. MicroStrategy, 268 F.3d at 249 (noting \"this principle of 'default' [in the FAA] is akin to waiver” (internal quotations omitted)). . Toward that end, Patten cites Breckenridge v. Farber, 640 So.2d 208 (Fla.Dist.Ct.App.1994), and Marthame Sanders & Co. v. 400 West Madison Corp., 401 So.2d 1145 (Fla.Dist.Ct.App.1981), for the proposition that a party to a contract is charged with an awareness of its terms. However, neither case relies on South Carolina contract law, and neither applies that rule to a successor-in-interest. 640 So.2d at 211, 401 So.2d at 1145-46. Accordingly, we decline to charge Skanska with constructive knowledge of Patten’s subcontract agreement. . Even if we were to credit Patten's argument that the delay was of eight months duration, we are not persuaded a delay of such length would suffice to establish prejudice. See Rush v. Oppenheimer & Co., 119 F.2d 885, 887 (2d Cir.1985) (noting a defendant's delay \"in seeking arbitration during approximately eight months of pretrial proceedings is insufficient” to demonstrate prejudice absent additional considerations). WIDENER, Circuit Judge, Dissenting: I respectfully dissent. I would affirm the judgment of the district court on its opinion, the reasons for which are summarized in the last full paragraph of its opinion, as follows: In this case, the court finds that Patten has sufficiently demonstrated that Skanska has waived its right to compel arbitration. This case was filed over eight months ago, and the parties have substantially utilized the" }, { "docid": "22257783", "title": "", "text": "marshal evidence and prepare an appropriate response. Furthermore, it imposes the obligations of Federal Rule of Civil Procedure 11 on the parties. The line offered here cannot be seriously contended to amount to a motion, and Wausau does not vigorously advance the issue. Therefore, the question is whether the granting of summary judgment in this case, sua sponte, was appropriate. Wausau correctly notes that in certain limited circumstances a district court can enter summary judgment sua sponte. Routman v. Automatic Data Processing, Inc., 873 F.2d 970, 971 (6th Cir.1989). See Project Release v. Prevost, 722 F.2d 960, 969 (2d Cir.1983); see also Charles A. Wright, Arthur R. Miller & Mary K. Kane, Federal Practice and Procedure: Civil 2d § 2720, at pp. 26-30 (1983). The most obvious example is a district court’s decision to turn a motion to dismiss under Fed.R.Civ.P. 12(b)(6) into a motion for summary judgment by turning to materials outside the pleadings. Rule 12(b) clearly states: If, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56. Fed.R.Civ.P. 12(b)(6) (emphasis added). In a similar persuasive vein, the Supreme Court has held that “district courts are widely acknowledged to possess the power to enter summary judgments sua sponte, so long as the losing party was on notice that she had to come forward with all of her evidence.” Celotex Corp. v. Catrett, 477 U.S. 317, 326, 106 S.Ct. 2548, 2554, 91 L.Ed.2d 265 (1986) (emphasis added). Therefore, there is no per se prohibition on entering summary judgment, sua sponte. Nonetheless, as Fed.R.Civ.P. 12 and Catrett demonstrate, a district court does not have sweeping authority to enter summary judgment at any time, without notice, against any party. We conclude that a district" }, { "docid": "22122393", "title": "", "text": "“utterly failed to meet their burden to set forth admissible evidence supporting these claims or otherwise demonstrating that a genuine issue of material fact exists for trial.” Id. at 426 & n. 8. Final judgment was entered July 14, 1998. II Although res judicata is an affirmative defense that should be raised in the defendant’s answer, the district court has the discretion to entertain the defense when it is raised in a motion for summary judgment, by construing the motion as one to amend the defendant’s answer. Block v. First Blood Assocs., 988 F.2d 344, 350 (2d Cir.1993). We review the district court’s decision to grant a party leave to amend for abuse of discretion. Tokio Marine and Fire Ins. Co. v. Employers Ins. of Wausau, 786 F.2d 101, 103 (2d Cir. 1986). Rule 15 of the Federal Rules of Civil Procedure provides that leave to amend a party’s pleading “shall be freely given when justice so requires.” Fed. R.Civ.Proc. 15. The Rule reflects two of the most important principles behind the Federal Rules: pleadings are to serve the limited role of providing the opposing party with notice of the claim or defense to be litigated, see Conley v. Gibson, 355 U.S. 41, 47-48, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957), and “mere technicalities” should not prevent cases from being decided on the merits, see Foman v. Davis, 371 U.S. 178, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962). See also 6 Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure: Civil 2d § 1471 (2d ed.1990). Thus, absent evidence of undue delay, bad faith or dilatory motive on the part of the movant, undue prejudice to the opposing party, or futility, Rule 15’s mandate must be obeyed. Foman, 371 U.S. at 182, 83 S.Ct. 227. The circumstances surrounding the untimely assertion of res judicata were clarified during oral argument before Judge Rakoff. ’ After a personnel changeover in the Office of the Corporation Counsel, ten of the twelve cases were assigned to lawyers who had not worked on the Seabrook action and were unaware of" }, { "docid": "4822862", "title": "", "text": "a genuine issue of material fact as to whether the failure to inform Meng that her inventor-ship was at issue delayed her bringing this suit and substantially changed the equities in favor of Chu.” Meng’s Br. 25. Unclean hands is an equitable defense within the sound discretion of the district court, Princess Cruises, Inc. v. United States, 397 F.3d 1358, 1369 (Fed.Cir.2005) (“The trial court has broad discretion under the doctrine of unclean hands.”), and in this case we see no reason to disturb the district court’s decision. C. Equitable Estoppel In addition to determining that Hor’s and Meng’s claims were barred by laches, the district court, in the alternative, sua sponte found that Hor’s and Meng’s inventorship claims were barred by equitable estoppel. We conclude that this was error. Chu did not assert equitable estoppel as an affirmative defense in his answer, nor did he present this theory to the district court in his motion for summary judgment. Estoppel, however, is an affirmative defense that must be pled, Fed. R.Civ.P. 8(c)(1) (“In responding to a pleading, a party must affirmatively state any avoidance or affirmative defense, including ... estoppel(emphasis added), and the failure to plead it can result in waiver, Davis v. Huskipower Outdoor Equip. Corp., 936 F.2d 193, 198 (5th Cir.1991) (“[A]n affirmative defense is waived unless pleaded by the defendant.”). In the Fifth Circuit, whose law we apply to this procedural issue, “an affirmative defense ... generally should not [be] raised sua sponte.” Kiser v. Johnson, 163 F.3d 326, 328 (5th Cir.1999) (quoting Warnock v. Pecos Cnty., Tex., 116 F.3d 776, 778 (5th Cir.1997)) (alterations in original); see also United States v. Mitchell, 518 F.3d 740, 745 (10th Cir.2008) (“[C]ourts generally may not raise affirmative defenses sua sponte.... ”). Moreover, although a district court certainly has the discretion to sua sponte grant summary judgment, it nevertheless must afford the losing party notice. Tolbert v. Nat’l Union Fire Ins. Co., 657 F.3d 262, 271 (5th Cir.2011) (“[W]e have vacated summary judgments and remanded for further proceedings where the district court provided no notice prior to granting summary judgment" }, { "docid": "22795820", "title": "", "text": "sua sponte for the nonmoving party. See, e.g., Cool Fuel, Inc. v. Connett, 685 F.2d 309, 311 (9th Cir.1982); see also Gospel Missions of Am. v. City of Los Angeles, 328 F.3d 548, 553 (9th Cir.2003) (“Even when there has been no cross-motion for summary judgment, a district court may enter summary judgment sua sponte against a moving party if the losing party has had a ‘full and fair opportunity to ventilate the issues involved in the matter.’ ”) (quoting Cool Fuel, Inc., 685 F.2d at 312). The Supreme Court implicitly recognized this authority in Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986), noting that “district courts are widely acknowledged to possess the power to enter summary judgments sua sponte, so long as the losing party was on notice that she had to come forward with all of her evidence.” Id. at 326, 106 S.Ct. 2548. The authority to grant summary judgment sua sponte was made explicit in the current version of Rule 56, effective as of December 2010. Fed. R.Civ.P. 56(f). If the record is sufficiently developed to permit the trial court to consider summary judgment, and if the court finds that when viewing the evidence in the light most favorable to a moving party the movant has not shown a genuine dispute of fact on the issue of exhaustion, it may be appropriate for the district court to grant summary judgment sua sponte for the nonmovant on this issue. See 10A Charles A. Wright, Arthur R. Miller & Mary K. Kane, Federal Practice and Procedure § 2720, at 351-52 (3d ed. 1998) (“[T]he practice of allowing summary judgment to be entered for the nonmoving party in the absence of a formal cross-motion is appropriate. It is in keeping with the objective of Rule 56 to expedite the disposition of cases.... ”). Before sua sponte summary judgment against a party is proper, that party “must be given reasonable notice that the sufficiency of his or her claim will be in issue: Reasonable notice implies adequate time to develop the facts on which the" }, { "docid": "17416324", "title": "", "text": "be protecta-ble. This will serve as the starting point for the court's copyright infringement analysis.”). .Opinion and Order, No. H-95-1582, at 2 (S.D.Tex. June 4, 1998) (order granting partial summary judgment) (emphasis added). . Holtzclaw v. DSC Communications Corp., 255 F.3d 254, 258 (5th Cir.2001). . Moreover, even if the court's decision to grant HAL summary judgment were somehow a sua sponte decision, it was not improper. In general, a district court may grant summary judgment sua sponte \"so long as the losing party was on notice that she had to come forward with all of her evidence.” Celotex v. Catrett, 477 U.S. 317, 326, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (\"[Djistrict courts are widely acknowledged to possess the power to enter summary judgments sua sponte, so long as the losing party was on notice that she had to come forward with all of her evidence.”); Judwin Properties, Inc. v. United States Fire Ins. Co., 973 F.2d 432, 436-37 (5th Cir.1992); see also Charles Alan Wright, Arthur R. Miller, & Mary Kay Kane, 10A Federal Practice and Procedure § 2720 (1998). The First Circuit has suggested that \"notice” means \"that the targeted party 'had reason to believe the court might reach the issue and received a fair opportunity to put its best foot forward.’ ” Leyva v. On the Beach, Inc., 171 F.3d 717, 720 (1st Cir.1999) (quoting Jardines Bacata, Ltd. v. Diaz-Marquez, 878 F.2d 1555, 1561 (1st Cir.1989)). There is no doubt in this case that GUS had the requisite notice. It was, after all, GUS itself that moved for summary judgment on the issue of literal copying. GUS had discussed the issue at least one other time — in its response to HAL's summary judgment motion' — and it had more than ample opportunity to marshal its facts and “put its best foot forward.” Cf. Nowlin v. Resolution Trust Corp., 33 F.3d 498, 504 (5th Cir.1994). More importantly, HAL explicitly argued to the court that there was no evidence supporting GUS's claims and requested that the court dismiss the newly raised literal copying charges. Finally, the summary" }, { "docid": "21436058", "title": "", "text": "cause of action set forth in the counterclaim.” Moore, 270 U.S. at 610, 46 S.Ct. 367. Following the Moore decision, our court has utilized three tests to determine whether the “transaction or occurrence” test of Rule 13(a) is met: (1) whether the legal and factual issues raised by the claim and counterclaim are largely the same; (2) whether substantially the same evidence supports or refutes both the claim and the counterclaim; and (3) whether there is a logical relationship between the claim and the counterclaim. See Polymer Indus. Prods. Co. v. Bridgestone/Firestone Inc., 347 F.3d 935, 937 (Fed.Cir.2003); Vivid Techs., Inc. v. Am. Sci. & Eng’g, Inc., 200 F.3d 795, 801 (Fed.Cir.1999); see also 6 Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 1410 (2d ed.1990). In each of the three tests for what constitutes the same “transaction or occurrence,” the question is the extent of factual overlap between what the plaintiff must establish to prove its claim and what the defendant must establish to prove its counterclaim. The mere possibility that, as a result of affirmative defenses, the first suit might involve additional issues does not obligate the defendant to assert those affirmative defenses as a counterclaim. In this case, Nylok’s trademark infringement claim was based on Nylok’s alleged ownership of a registered mark, Nasalok’s alleged use of the color blue in nylon patches on the external threads of self-locking fasteners, its promotion of those fasteners in advertisements in publications distributed in the United States, and the likelihood of confusion of the consuming public as a result of Nasalok’s activities. Invalidity of the mark was an affirmative defense that could have been raised, not part of the plaintiffs cause of action. See Packman v. Chi. Tribune Co., 267 F.3d 628, 639 (7th Cir.2001) (defendant may attack validity of mark by asserting various defenses); 6 J. Thomas McCarthy, McCarthy on Trademarks and Unfair Competition § 34:5 (4th ed.1996) (listing defenses to trademark infringement, including “Attack on Validity of U.S. Trademark Registration”); see also 15 U.S.C. § 1115(a) (registration of mark that has not" }, { "docid": "4822863", "title": "", "text": "a pleading, a party must affirmatively state any avoidance or affirmative defense, including ... estoppel(emphasis added), and the failure to plead it can result in waiver, Davis v. Huskipower Outdoor Equip. Corp., 936 F.2d 193, 198 (5th Cir.1991) (“[A]n affirmative defense is waived unless pleaded by the defendant.”). In the Fifth Circuit, whose law we apply to this procedural issue, “an affirmative defense ... generally should not [be] raised sua sponte.” Kiser v. Johnson, 163 F.3d 326, 328 (5th Cir.1999) (quoting Warnock v. Pecos Cnty., Tex., 116 F.3d 776, 778 (5th Cir.1997)) (alterations in original); see also United States v. Mitchell, 518 F.3d 740, 745 (10th Cir.2008) (“[C]ourts generally may not raise affirmative defenses sua sponte.... ”). Moreover, although a district court certainly has the discretion to sua sponte grant summary judgment, it nevertheless must afford the losing party notice. Tolbert v. Nat’l Union Fire Ins. Co., 657 F.3d 262, 271 (5th Cir.2011) (“[W]e have vacated summary judgments and remanded for further proceedings where the district court provided no notice prior to granting summary judgment sua sponte, even where summary judgment may have been proper on the merits.” (quoting Leatherman v. Tarrant Cnty. Narcotics Intelligence & Coordination Unit, 28 F.3d 1388, 1398 (5th Cir.1994))); see also Am. Flint Glass Workers Union v. Beaumont Glass Co., 62 F.3d 574, 578 n. 5 (3d Cir.1995) (“[O]rders granting summary judgment sua sponte endanger important rights and, unless waived ..., are likely to result in judicial inefficiency and deprivation to the rights of one of the parties.”). For these reasons, we conclude that the district court erred in sua sponte granting summary judgment based on the affirmative defense of equitable estoppel in light of Chu’s failure to assert that defense against Hor and Meng. The district court’s judgment with respect to equitable estoppel accordingly is vacated. III. Conclusion In sum, the district court’s judgment in favor of Chu on his laches defense is reversed; the judgment in favor of Chu with respect to Meng’s unclean hands defense is affirmed; and the judgment in favor of Chu based on equitable estoppel is vacated. The case" }, { "docid": "17608169", "title": "", "text": "same series of transactions that formed the basis of the Agnes Bey suit gave rise to the constitutional claims in Kelly. Id. As a result, the district court granted Appellees’ Rule 12(c) motion and dismissed the Amended Complaint on the ground of claim preclusion. Id. at 10. A. Whether the Court Could Raise the Res Judicata Defense Sua Sponte On appeal, Appellants contend, inter alia, that Appellees waived or forfeited the res judicata defense due to the time that elapsed between the filing of their initial Complaint in this case (October 2001) and the filing of the Rule 12(c) motion (March 2010). This argument, however, is not as forceful as it may first appear. Regardless of the procedural machinations of the case prior to July 2007, the Appellants opted to amend their complaint at that time. The filing and service of this Amended Complaint superseded all previous complaints and thus delineated the parties, claims, and facts alleged to support the claims that constituted the case from that point forward. Cf. Norex Petroleum Ltd. v. Access Indus., Inc., 631 F.3d 29, 31 (2d Cir.2010) (per curiam) (noting that amended complaint was “the operative complaint on this appeal”); Charles Alan Wright, Arthur R. Miller, Mary Kay Kane, Richard L. Marcus, 6 Fed. Prac. & Proc. Civ. § 1476 (3d ed.) (1997 & Supp. 2011) (“A pleading that has been amended under Rule 15(a) supersedes the pleading it modifies and remains in effect throughout the action.... Once an amended pleading is interposed, the original pleading no longer performs any function in the case.”). Concomitantly, the Amended Complaint triggered the Appellees’ filing of an Amended Answer in which they pleaded the affirmative defense of res judicata. In sum, as to the only operative pleading going forward, the issue of res judicata was timely and squarely joined by the filing and service of the responsive pleading. Up to that point, therefore, the Appellees did not forfeit the issue. Appellants, moreover, do not challenge on appeal the district court’s exercise of its discretion to construe the Appellees’ mo tion to dismiss as a motion for judgment" }, { "docid": "20172423", "title": "", "text": "a district court’s sua sponte determination is based on issues identical to those raised by a moving party, the risk of prejudice is significantly lowered because “the judge already is engaged in determining whether a genuine issue of material fact exists and the parties have been given an opportunity to present evidence designed either to support or refute the request for the entry of judgment.” 10A Charles Alan Wright, Arthur R. Miller, Mary Kay Kane, Federal Practice and Procedure § 2720 (3d ed.1998); see Bridgeway Corp., 201 F.3d at 140 (“The threat of procedural prejudice is greatly diminished if the court’s sua sponte' determination is based on issues identical to those raised by the moving party.” (brackets and internal quotation marks omitted)); see also Jones v. Salt Lake County, 503 F.3d 1147, 1152 (10th Cir.2007) (holding that plaintiffs were not prejudiced where they previously had filed a motion for partial summary judgment on the issues on which the court granted summary judgment sua sponte); Hynes v. Squillace, 143 F.3d 653, 656-57 (2d Cir.1998) (noting that since the plaintiff had moved for summary judgment on a retaliation claim before the magistrate judge, granting the defendants summary judgment sua sponte on the retaliation claim was not prejudicial because the plaintiff had “had every incentive to submit all evidence supporting his retaliation claim”); Coach Leatherware Co. v. AnnTaylor, Inc., 933 F.2d 162, 167 (2d Cir.1991) (holding that the district court’s sua sponte decision to grant summary judgment against the moving party was not prejudicial in part because the court’s “sua sponte determination [was] based on issues identical to those raised by the moving party”). Additionally, not only did Mr. Kannady raise this issue in his motion for summary judgment, he asserted in unequivocal terms that Krebs refused to hire him before October 2004, and he identified evidence in the record to support his claim. Consequently, the district court could reasonably view the record as including all of the evidence that Mr. Kannady deemed appropriate to support his claim and thus move to decide for purposes of summary judgment the timing question relating to" }, { "docid": "21598798", "title": "", "text": "impermissible conduct occurred. . We have the authority to do this. Degan v. Ford Motor Co., 869 F.2d 889, 892 (5th Cir.1989) (“Summary judgment may be affirmed, regardless of the correctness of the district court ruling, when we find in the record an adequate, independent basis for that result.”). . Debra Boles, one of the plaintiffs, conceded she did not file a complaint against any of the defendants with the EEOC, and that therefore she cannot recover on Title VII grounds. . District courts may grant summary judgment sua sponte, \"so long as the losing party was on notice that she had to come forward with all of her evidence.” Celotex, 477 U.S. at 326, 106 S.Ct. at 2554; Judwin Properties, Inc., v. United States Fire Ins. Co., 973 F.2d 432, 436-37 (5th Cir.1992); see also Wright, Miller and Kane, Federal Practice and Procedure § 2720 (1994 Pocket Part). . The district court issued its opinion after Mitchell Jobe submitted a motion to dismiss the plaintiffs' second amended complaint for failure to state a claim upon which relief can be granted under Federal Rule of Civil Procedure 12(b)(6). That rule states that \"[i]f, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.\" (emphasis supplied). The comment to Rule 12(b)(6) specifically states that the rule \"insures that both parties shall be given a reasonable opportunity to submit affidavits and extraneous proofs to avoid taking a party by surprise through the conversion of the motion into a motion for summary judgment.” Cf. Washington v. Allstate Insurance Co., 901 F.2d 1281, 1284 (5th Cir.1990). . The Leatherman litigation has a long history. The district court originally dismissed the action on the grounds that the plaintiffs" } ]

[ { "docid": "8142224", "title": "", "text": "sentences to a defendant’s actual criminal conduct. McHan nevertheless argues that his real estate company and his bank have contributed a great deal to Murphy, North Carolina, and that he has substantial support in that community. He points to numerous letters written by citizens of Murphy on his behalf, to land given the Cherokee County School District, and to money used to purchase air conditioning units for the Murphy Elementary School. Applying the two- prong test in this circuit for assessing departures from the Guidelines, McHan maintains under the first prong that the Sentencing Commission did not adequately consider such mitigating factors in formulating the Guidelines, and asserts under the second prong that his charitable acts reasonably justify a downward departure. See United States v. Van Dyke, 895 F.2d 984, 986 (4th Cir.1990); United States v. Summers, 893 F.2d 63 (4th Cir.1990); 18 U.S.C. § 3553(b). This argument fails for several reasons. First, § 5H1 of the Guidelines specifically discusses the weight to be accorded both a defendant’s community ties and his socioeconomic status, the latter a factor bearing some correlation to the amount of a defendant’s charitable donations. Socio-economic status is flatly “not relevant” to sentencing, U.S.S.G. § 5H1.10, p.s., and community ties are “not ordinarily relevant” but may be considered when probation is an option under the Guidelines. U.S.S.G. § 5H1.6, p.s. The Commission did not fail to consider the factors that McHan advances; the Commission contemplated them and deemed them ordinarily irrelevant to sentencing. Thus, McHan’s contributions to Murphy through his real estate development company and his bank are not to be considered in determining his sentence. See United States v. Bolden, 889 F.2d 1336, 1339-40 (4th Cir.1989). Even if the court could consider such circumstances, to apply them in this case would be plainly inappropriate. The indictment charged McHan with conspiring to purchase 2000 pounds of marijuana a month in addition to actually purchasing 200 pounds at $510 per pound. These figures anticipate proposed monthly drug purchases of over one million dollars. The alleged source of the charitable contributions is not dispositive for purposes of a" } ]

[ { "docid": "22792451", "title": "", "text": "lacked authority to depart downward from the guideline range based on the psychological impact that a lengthy sentence would have on her five young children. Before addressing her argument, we must consider the basis of the court’s non-departure, for this court has no jurisdiction to review a district court’s discretionary refusal to depart below the guidelines. See United States v. Denardi, 892 F.2d 269, 271-272 (3d Cir.1989). It appears from the record that the district court believed that it lacked legal authority to depart and therefore we have jurisdiction to consider whether that belief was erroneous as a matter of law. The sentencing statute permits departure from the guideline range only when a 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 and that should result in a sentence different from that described.” 18 U.S.C. § 3553(b) (1982). The government argues that the Sentencing Commission considered and rejected Headley’s basis for departure in section 5H1.6. That section provides, Family ties and responsibilities and community ties are not ordinarily relevant in determining whether a sentence should be outside the guidelines. Family responsibilities that are complied with are relevant in determining whether to impose restitution and fines. Where the guidelines provide probation as an option, these factors may be relevant in this determination. U.S.S.G. § 5H1.6. The “not ordinarily relevant” language of section 5H1.6 suggests that in extreme circumstances departure based on family ties and responsibilities is permissible. See United States v. Sharpsteen, 913 F.2d 59, 63 (2d Cir.1990) (“The clear implication of section 5H1.6 is that if the court finds that the circumstances related to family ties and relationships are extraordinary, it is not precluded as a matter of law from taking them into account in making a downward departure.”); see also United States v. Deigert, 916 F.2d 916, 919 (4th Cir.1990). While district courts have the authority to depart for extraordinary family circumstances, every court to consider the issue of departure based on the effect that sentencing a single parent to prison" }, { "docid": "22792452", "title": "", "text": "provides, Family ties and responsibilities and community ties are not ordinarily relevant in determining whether a sentence should be outside the guidelines. Family responsibilities that are complied with are relevant in determining whether to impose restitution and fines. Where the guidelines provide probation as an option, these factors may be relevant in this determination. U.S.S.G. § 5H1.6. The “not ordinarily relevant” language of section 5H1.6 suggests that in extreme circumstances departure based on family ties and responsibilities is permissible. See United States v. Sharpsteen, 913 F.2d 59, 63 (2d Cir.1990) (“The clear implication of section 5H1.6 is that if the court finds that the circumstances related to family ties and relationships are extraordinary, it is not precluded as a matter of law from taking them into account in making a downward departure.”); see also United States v. Deigert, 916 F.2d 916, 919 (4th Cir.1990). While district courts have the authority to depart for extraordinary family circumstances, every court to consider the issue of departure based on the effect that sentencing a single parent to prison will have on minor children has found the circumstances not to be extraordinary. In United States v. Brand, 907 F.2d 31 (4th Cir.), cert. denied, — U.S.-, 111 S.Ct. 585, 112 L.Ed.2d 590 (1990), the court of appeals reversed the order of the district court departing downward because defendant was a single mother with two small children. The appellate court found departure to be clearly erroneous, stating that “[ajlthough there doubtless are circumstances in which unique family responsibili ties might justify a downward departure,” the imprisonment of a single parent was not extraordinary. Id. at 33; see also United States v. Goff, 907 F.2d 1441, 1446 (4th Cir.1990) (“[Defendant] has shown nothing more than that which innumerable defendants could no doubt establish: namely, that the imposition of prison sentences normally disrupts ... parental relationships.”). Thus, although the district court had the authority to depart downward on the basis of extraordinary circumstances, Headley failed to show that the circumstances in this case were extraordinary. We conclude that the court’s refusal to depart was not erroneous. III." }, { "docid": "23237907", "title": "", "text": "‘extraordinary,’ a district court has the power to depart from the guidelines.”); United States v. Gaskill, 991 F.2d 82, 85 (3d Cir.1993) (“section 5H1.6 does not prohibit departures, but restricts them to cases where the circumstances are extraordinary.”); United States v. Bell, 974 F.2d 537, 539 (4th Cir.1992); United States v. Deigert, 916 F.2d 916, 919 (4th Cir.1990) (“the Guidelines permit departure when the circumstances are extraordinary.”); United States v. Brown, 29 F.3d 953, 961 (5th Cir.1994); United States v. Brewer, 899 F.2d 503, 508-09 (6th Cir.), cert. denied, 498 U.S. 844, 111 S.Ct. 127, 112 L.Ed.2d 95 (1990); United States v. Haversat, 22 F.3d 790, 797 (8th Cir.1994) (“policy statement that factor is ordinarily not relevant necessarily implies that the factor may be relevant in extraordinary cases” (emphasis in original)); United States v. Simpson, 7 F.3d 813, 819 (8th Cir.1993); United States v. Mondello, 927 F.2d 1463, 1470 (9th Cir.1991) (“in extraordinary circumstances, a court may rely on one of the six factors listed in section 5H1.1-.6 to depart from the guideline range.”); United States v. Pena, 930 F.2d 1486, 1494-95 (10th Cir.1991) (“there may be extraordinary circumstances where family ties and responsibilities may be relevant to the sentencing decision.”); United States v. Mogel, 956 F.2d 1555, 1562 (11th Cir.1992), cert. denied, — U.S.—, 113 S.Ct. 167, 121 L.Ed.2d 115 (1992); see also United States v. Lopez, 938 F.2d 1293, 1296 (D.C.Cir.1991) (although age not ordinarily relevant to a departure decision under U.S.S.G. § 5H1.1, age may be considered in an extraordinary case). Because our sister circuits have uniformly rejected Thomas I’s interpretation of section 5H1.6 both before and after the November 1, 1991 amendment, and because that amendment omits the language on which Thomas I specifically relied, we hold today that a district court may depart from an applicable guidelines range once it finds that a defendant’s family ties and responsibilities or community ties are so unusual that they may be characterized as extraordinary. Any other reading would be inconsistent with the plain language of section 5H1.6 in that it would render meaningless the Commission’s use of the" }, { "docid": "22964585", "title": "", "text": "district court to depart. Nevertheless, the district court expressly disavowed reliance on Wilson’s lack of guidance as a youth and disadvantaged upbringing. Instead, it attempted to ground its departure on a different factor, and therefore, we consider whether the departure may be justified on the announced basis. Recognizing that § 5H1.12, p.s. prohibited a departure based on Wilson’s disadvantaged upbringing, the district court found that the way in which Wilson rose above his upbringing to take responsibility for his own children constituted extraordinary family ties, making departure appropriate under U.S.S.G. § 5H1.6, p.s. Section 5H1.6, p.s. provides: Family ties and responsibilities and community ties are not ordinarily relevant in determining whether a sentence should be outside the applicable guideline range. Family responsibilities that are complied with may be relevant to the determination of the amount of restitution or fine. Because the Commission discouraged departure on the basis of family ties and responsibilities, departure pursuant to § 5H1.6, p.s. is permitted only upon a finding that the defendant’s family ties or responsibilities are extraordinary. See Koon, — U.S. at-, 116 S.Ct. at 2045; Brock, 108 F.3d at 34-35. The district court deemed that Wilson’s attention to his children was extraordinary. The record before the district court indicates only that at the time the presentence report was prepared, Wilson, age 21, was cohabitating with a 16-year-old woman and the couple had a three-month-old child. Wilson also had fathered three children, ages six, four, and three, who resided with their mother. Aside from the impermissible basis of Wilson’s disadvantaged upbringing, and its observation that many defendants failed to take any responsibility for their children whatsoever, the district court offered no reasons for concluding that Wilson’s situation was such that his family responsibilities could be considered extraordinary. Indeed, this court has held improper departures based on § 5H1.6, p.s. under circumstances much more compelling than Wilson’s. See United States v. Rybicki, 96 F.3d 754, 759 (4th Cir.1996) (holding that district court abused its discretion in departing under § 5H1.6, p.s. based on defendant’s responsibilities for his wife and son, both of whom had medical" }, { "docid": "23330362", "title": "", "text": "family considerations. Indeed, there is a split within several circuits on this question. The Fifth and Sixth Circuits have intimated that § 5H1.6 permits departures based on extremely unusual family circumstances. See United States v. Brewer, 899 F.2d 503, 508 (6th Cir.1990) (defendant’s family and community ties held not unusual enough to justify departure on that basis); United States v. Burch, 873 F.2d 765, 768 (5th Cir.1989) (family ties can be basis for departure in extraordinary cases). The Ninth Circuit says no. See United States v. Brady, 895 F.2d 538, 543 (9th Cir.1990). Cases in the Fourth and Eighth Circuits go both ways. Compare United States v. Shortt, 919 F.2d 1325, 1328 (8th Cir.1990) (defendant’s family circumstances not unusual enough to support departure under § 5H1.6) with United States v. Sutherland, 890 F.2d 1042, 1043 (8th Cir.1989) (§ 5H1.6 is a “clear statement” that family considerations are not a ground for departure); United States v. Deigert, 916 F.2d 916, 918-19 (4th Cir.1990) (departure on basis of extraordinary family considerations permissible) with United States v. McHan, 920 F.2d 244, 248 (4th Cir.1990) (no departure authorized on basis of family considerations when probation is not a sentencing option). We agree with the courts that read § 5H1.6 narrowly. Section 5H1.6 details the few instances when family responsibilities are relevant: Family responsibilities that are complied with are relevant in determining whether to impose restitution and fines. Where the guidelines provide probation as an option, these factors may be relevant in this determination. If a defendant is sentenced to probation or supervised release, family ties and responsibilities that are met may be relevant in the determination of the length and conditions of supervision. None of these situations apply to Thomas. The district court awarded her no fine, and as we determined above, she is not eligible for probation. These are the only cases in which family considerations are relevant; unlike the guideline policy statement on departures for substantial assistance, § 5H1.6 contains no language suggesting that this list is merely illustrative rather than exhaustive. Section 5H1.6 contains no suggestion that departures may be based" }, { "docid": "23237900", "title": "", "text": "time, and was also the legal guardian of a four-year-old grandson, imposed a sentence of probation. In reviewing that sentence, Thomas I resolved a number of issues under the Guidelines, and it is important that we distinguish between them here. The Thomas I panel first held that a sentence of probation was forbidden by section 841(b)(1)(A), the statute imposing the ten-year mandatory minimum sentence, because that statute also provides that “[njotwithstanding any other provision of law, the court shall not place on probation or suspend the sentence of any person sentenced under this subparagraph.” 930 F.2d at 528. Although the probationary sentence imposed by the district court was therefore erroneous on this ground, the court then addressed the appropriateness on remand of considering Thomas’ extraordinary family circumstances in determining the extent of any departure from the ten-year mandatory minimum sentence. On that score, Thomas I held that district courts departing from mandatory minimum sentences pursuant to section 3553(e) may only consider the quality of the assistance rendered by the defendant to the government. Id. at 529, 530; see also U.S.S.G. § 5K1.1. The district court therefore also erred in factoring Thomas’ family circumstances into its departure equation. Having reached that conclusion, the panel proceeded to consider Thomas’ argument that Guidelines section 5H1.6 authorized the district court to consider her extraordinary family circumstances. At the time of our decision in Thomas I, section 5H1.6 provided: Family ties and responsibilities and community ties are not ordinarily relevant in determining whether a sentence should be outside the guidelines. Family responsibilities that are complied with are relevant in determining whether to impose restitution and fines. Where the guidelines provide probation as an option, these factors may be relevant in this determination. If a defendant is sentenced to probation or supervised release, family ties and responsibilities that are met may be relevant in the determination of the length and conditions of supervision. Despite the Sentencing Commission’s use of the word “ordinarily” in the first sentence of section 5H1.6, the Thomas I panel concluded that even extraordinary family circumstances would not provide a basis for departure" }, { "docid": "14001625", "title": "", "text": "should be outside the guidelines.” Guidelines § 5H1.3 (noting that mental and emotional conditions, whether mitigating or aggravating, may be relevant in determining the length and condition of probation or supervised release). RACE AND FAMILY SITUATION We hold the district court abused its discretion in sentencing appellee outside the applicable guideline sentencing range because he was a bi-racial adopted child. First, in establishing the Sentencing Guidelines, Congress expressly directed the Sentencing Commission to “assure that the guidelines and policy statements are entirely neutral as to the race, sex, national origin, creed, and socioeconomic status of offenders.” 28 U.S.C. § 994(d). This Congressional directive is clearly set forth in Guidelines § 5H1.10. For this reason, ap-pellee’s race or racial background cannot be a basis for departure. See United States v. Diaz-Villafane, 874 F.2d at 49 n. 5 (guidelines bar departures based on enumerated factors such as race, sex and national origin); cf. United States v. Natal-Rivera, 879 F.2d 391, 393 (8th Cir.1989) (guidelines do not violate due process because they do not allow consideration of cultural background when imposing sentence). But see United States v. Big Crow, 898 F.2d at 1331-32 (affirming departure because of offender’s consistent employment record and efforts to make “decent life in difficult environment” on Pine Ridge Indian Reservation). Similarly, under the guidelines, “family ties ... are not ordinarily relevant in determining whether a sentence should be outside the guidelines.” Guidelines § 5H1.6. Most courts have refused to depart on the basis of family circumstances on the basis of this guideline policy statement. See United States v. Neil, 903 F.2d at 565-66 (close family ties and helping young people not sufficiently unusual); United States v. Sutherland, 890 F.2d 1042, 1043 (8th Cir.1989) (per curiam) (no departure despite “unusual family responsibilities”); United States v. Sailes, 872 F.2d 735, 739 (6th Cir.1989) (no departure despite status as custodial parent of minor children); United States v. Weidner, 703 F.Supp. 1350, 1356 (N.D.Ind.1988) (no departure despite support of spouse and stepchildren), aff'd mem., 885 F.2d 873 (7th Cir.1989); United States v. Rodriguez, 691 F.Supp. 1252, 1253 (W.D.Mo.1988) (reference in dicta to" }, { "docid": "10556493", "title": "", "text": "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.” ... An offender characteristic or other circumstance that is not ordinarily relevant in determining whether a sentence should be outside the applicable guideline range may be relevant to this determination if such characteristic or circumstance is present to an unusual degree and distinguishes the ease from the “heartland” eases covered by the guidelines in a way that is important to the statutory purposes of sentencing. U.S.S.G. § 5K2.0, p.s. The Guidelines state, in addition, that “[fjamily ties and responsibilities and community ties are not ordinarily relevant in determining whether a sentence should be outside the applicable guideline range.” U.S.S.G. § 5H1.6, p.s. We have read § 5H1.6 to mean that when a sentencing court determines the circumstances related to family ties and relationships are extraordinary, the Guidelines do not bar it from considering them as a basis for a downward departure. See United States v. Sharpsteen, 913 F.2d 59, 63 (2d Cir.1990); see also United States v. Londono, 76 F.3d 33, 36 (2d Cir.1996) (“[T]his Court and other courts of appeals have recognized that a defendant’s familial responsibilities may present such ‘extraordinary circumstances’ that a downward departure in sentencing is necessary and permissible.”); United States v. Johnson, 964 F.2d 124, 129 (2d Cir.1992) (“Section 5H1.6’s phrasing confirms the Commission’s understanding that ordinary family circumstances do not justify departure, but extraordinary family circumstances may.”). II Standard of Review for Such Departures This case illustrates the tension that exists between the Guidelines’ somewhat rigid sentencing grid and the authority of a sentencing court to move outside those strictures in order to impose an individualized sentence in a given case. A brief examination of the sentencing law helps rationalize when such a departure will be upheld on appeal. The Sentencing Reform Act of 1984, 98 Stat.1988, 18 U.S.C. §§ 3551 et seq. and 28 U.S.C. §§ 991-998, had as one of its major purposes the avoidance of unwarranted" }, { "docid": "23237902", "title": "", "text": "from an imprisonment range. 930 F.2d at 530 (“Section 5H1.6 contains no suggestion that departures may be based on family considerations whenever they strike judges as particularly compelling.”). Instead, family considerations are only relevant, Thomas I held, to the imposition of restitution or a fine, or to the length and conditions of probation and supervised release, where those sentencing options are available. Id. The court concluded that “the Commission’s affirmative statement that family responsibilities are rel evant when probation is an option suggests that the Commission did not intend them to be relevant when, as here, probation is not a sentencing option.” Id. (emphasis in original). By the time Mattie Lou Thomas was re-sentenced on remand, however, the Commission had amended section 5H1.6 in several significant respects: Family ties and responsibilities and community ties are not ordinarily relevant in determining whether a sentence should be outside the applicable guideline range. Family responsibilities that are complied with may be relevant to the determination of the amount of restitution or fine. (Eff. Nov. 1,1991). We observed in Thomas II that although this amendment had not disturbed Thomas I’s primary holding that “only factors relating to a defendant’s assistance to the government should affect the extent of a departure from a statutory minimum sentence,” it “may affect the second of Thomas I’s alternative bases of decision”— that departures accounting for extraordinary family circumstances are forbidden by section 5H1.6 even in the absence of a statutory minimum. 11 F.3d at 736. Thomas II reasoned that this alternative holding had been based “on language that has since been excised from § 5H1.6.” Id. at 736 n. 1. We had no occasion to definitively resolve this issue in Thomas II, however, because, as we have explained, that case involved a mandatory minimum sentence, and we had held in Thomas I that only substantial assistance, and not extraordinary family circumstances, may provide a basis for departure from such a statutory minimum. We reaffirmed this holding in Thomas II, and indeed, it has been embraced by a number of our sister circuits. See United States v. DeMaio, 28" }, { "docid": "23237906", "title": "", "text": "with Thomas I’s alternative holding that even extraordinary family circumstances may never provide a basis for departure from an imprisonment range. Instead, the other circuits are unanimous in finding that section 5H1.6 permits departures from an imprisonment range to account for family circumstances in an extraordinary case. See, e.g., United States v. Rivera, 994 F.2d 942, 948, 953 (1st Cir.1993) (Breyer, C.J.) (“district courts have authority to depart in ‘unusual cases’ and where family circumstances are out of the ‘ordinary.’ ”); United States v. Johnson, 964 F.2d 124, 129 (2d Cir.1992) (“Extraordinary family circumstances are widely accepted as a valid reason for departure.”); United States v. Sharpsteen, 913 F.2d 59, 63 (2d Cir.1990) (“The clear implication of section 5H1.6 is that if the court finds that the circumstances related to family ties and relationships are extraordinary, it is not precluded as a matter of law from taking them into account in making a downward departure.”); United States v. Monaco, 23 F.3d 793, 801 (3d Cir.1994) (“when a ‘not ordinarily relevant’ factor can be characterized as ‘extraordinary,’ a district court has the power to depart from the guidelines.”); United States v. Gaskill, 991 F.2d 82, 85 (3d Cir.1993) (“section 5H1.6 does not prohibit departures, but restricts them to cases where the circumstances are extraordinary.”); United States v. Bell, 974 F.2d 537, 539 (4th Cir.1992); United States v. Deigert, 916 F.2d 916, 919 (4th Cir.1990) (“the Guidelines permit departure when the circumstances are extraordinary.”); United States v. Brown, 29 F.3d 953, 961 (5th Cir.1994); United States v. Brewer, 899 F.2d 503, 508-09 (6th Cir.), cert. denied, 498 U.S. 844, 111 S.Ct. 127, 112 L.Ed.2d 95 (1990); United States v. Haversat, 22 F.3d 790, 797 (8th Cir.1994) (“policy statement that factor is ordinarily not relevant necessarily implies that the factor may be relevant in extraordinary cases” (emphasis in original)); United States v. Simpson, 7 F.3d 813, 819 (8th Cir.1993); United States v. Mondello, 927 F.2d 1463, 1470 (9th Cir.1991) (“in extraordinary circumstances, a court may rely on one of the six factors listed in section 5H1.1-.6 to depart from the guideline range.”); United" }, { "docid": "23330361", "title": "", "text": "the legal guardian of a four year-old grandson. She cares for her children alone; Thomas last saw her husband in 1984. She maintains, however, that § 1B1.4 of the guidelines authorized the court to factor her familial responsibilities into its departure calculus. Section 1B1.4 provides that “[i]n determining ... whether a departure from the guidelines is warranted, the court may consider, without limitation, any information concerning the background, character and conduct of the defendant, unless otherwise prohibited by law.” The commentary for § 1B1.4 points out, however, that “[s]ome policy statements ... express a Commission policy that certain factors should not be considered for any purpose, or should be considered only for limited purposes.” Guideline § 5H1.6 is one such policy statement. There the Commission stated that “[fjamily ties and responsibilities ... are not ordinarily relevant in determining whether a sentence should be outside the guidelines.” There is a split among the circuits that have considered whether the qualification contained in the policy statement — not “ordinarily” relevant — authorizes downward departures based on extraordinary family considerations. Indeed, there is a split within several circuits on this question. The Fifth and Sixth Circuits have intimated that § 5H1.6 permits departures based on extremely unusual family circumstances. See United States v. Brewer, 899 F.2d 503, 508 (6th Cir.1990) (defendant’s family and community ties held not unusual enough to justify departure on that basis); United States v. Burch, 873 F.2d 765, 768 (5th Cir.1989) (family ties can be basis for departure in extraordinary cases). The Ninth Circuit says no. See United States v. Brady, 895 F.2d 538, 543 (9th Cir.1990). Cases in the Fourth and Eighth Circuits go both ways. Compare United States v. Shortt, 919 F.2d 1325, 1328 (8th Cir.1990) (defendant’s family circumstances not unusual enough to support departure under § 5H1.6) with United States v. Sutherland, 890 F.2d 1042, 1043 (8th Cir.1989) (§ 5H1.6 is a “clear statement” that family considerations are not a ground for departure); United States v. Deigert, 916 F.2d 916, 918-19 (4th Cir.1990) (departure on basis of extraordinary family considerations permissible) with United States v. McHan," }, { "docid": "23330363", "title": "", "text": "920 F.2d 244, 248 (4th Cir.1990) (no departure authorized on basis of family considerations when probation is not a sentencing option). We agree with the courts that read § 5H1.6 narrowly. Section 5H1.6 details the few instances when family responsibilities are relevant: Family responsibilities that are complied with are relevant in determining whether to impose restitution and fines. Where the guidelines provide probation as an option, these factors may be relevant in this determination. If a defendant is sentenced to probation or supervised release, family ties and responsibilities that are met may be relevant in the determination of the length and conditions of supervision. None of these situations apply to Thomas. The district court awarded her no fine, and as we determined above, she is not eligible for probation. These are the only cases in which family considerations are relevant; unlike the guideline policy statement on departures for substantial assistance, § 5H1.6 contains no language suggesting that this list is merely illustrative rather than exhaustive. Section 5H1.6 contains no suggestion that departures may be based on family considerations whenever they strike judges as particularly compelling. Had the Commission wanted to do that, it knew how; in § 5H1.4, for example, the guidelines state that, although a defendant’s physical condition is not “ordinarily” relevant in determining whether to depart, sentencing courts may depart on the basis of “an extraordinary physical impairment.” Section 5H1.6 grants no similar license. Moreover, the Commission’s affirmative statement that family responsibilities are relevant when probation is an option suggests that the Commission did not intend them to be relevant when, as here, probation is not a sentencing option. See McHan, 920 F.2d at 248 (community ties not relevant to departure decision when probation is not an option); Brady, 895 F.2d at 543. Thomas essentially concedes this point, since she argues that the relevance of § 5H1.6 lies in the fact that it makes family responsibilities relevant when probation is an available option. This reading is also consistent with the general philosophy that undergirds the Sentencing Guidelines. They reflect Congress’s desire to base criminal punishment on the offense" }, { "docid": "7020341", "title": "", "text": "the guideline range.” Id. at 1470. See also United States v. Alba, 933 F.2d 1117, 1122 (2nd Cir.1991) (upholding a departure based on existence of family ties and obligations and noting that \"a sentencing court is not precluded as a matter of law from considering [family ties and obligations] in making a downward departure\"); United States v. Pena, 930 F.2d 1486, 1495 (10th Cir.1991) (holding that extraordinary circumstances may make family ties and responsibilities relevant to the sentencing decision and upholding a departure based on such ties); United States v. Big Crow, 898 F.2d 1326, 1331-32 (8th Cir.1990) (same); United States v. Brady, 895 F.2d 538, 543 (9th Cir.1990) (\"[T]he Guidelines allow the sentencing court to consider a defendant’s ... • family ties and responsibilities, and community ties.”) (dictum). Because youthful lack of guidance does not come within the purview of any of the provision of 28 U.S.C. § 994(e) or of U.S.S.G. Chapter Five, Part H, however, we need not determine whether this case presents such extraordinary circumstances. . Departure cases involving Guidelines section 5H1.6 deal with district court decisions to depart downward on the basis that defendants have exceptional ongoing family obligations that they would be unable to fulfill if sentenced to long prison sentences. See, e.g., Alba, 933 F.2d at 1122 (upholding a downward departure based on section 5H1.6 where a district court found that a defendant lived with and supported a wife, two daughters, aged four and 11, a disabled father and a paternal grandmother and reasoning that defendant’s incarceration within the Guidelines range \"might well result in the destruction of an otherwise strong family unit”); Pena, 930 F.2d at 1495 (upholding a departure where the district court found that defendant is the sole supporter of her two-month old child and provides financial support to her 16-year old daughter who is also a single-parent of a two-month old child and reasoning that \"should the defendant be incarcerated for an extended period of time, two infants would be placed at a potential risk”)." }, { "docid": "23272558", "title": "", "text": "the basis of considerations offered by appellant cannot be denied. Appellant identified at least two factors at his sentencing hearing that would warrant a downward departure: duress resulting in commission of the offense, covered by section 5K2.12 of the Guidelines, and family ties and responsibilities, covered by section 5H1.6. While appellant presented virtually no evidence to make a credible claim of duress, his appeal to extensive family ties and responsibilities was not a matter of dispute. Section 5H1.6 specifies that these considerations “are not ordinarily relevant in determining whether a sentence should be outside the guidelines” (emphasis supplied). This contrasts with section 5H1.10, which deals with race, sex, national origin, creed, religion and socio-economic status. Instead of specifying that certain factors are not “ordinarily relevant,” section 5H1.-10 excludes without qualification the aforementioned characteristics as relevant to determination of a sentence. The clear implication of section 5H1.6 is that if the court finds that the circumstances related to family ties and relationships are extraordinary, it is not precluded as a matter of law from taking them into account in making a downward departure. Cf. United States v. Lara, 905 F.2d 599, 603 (2d Cir.1990); United States v. Big Crow, 898 F.2d 1326, 1331 (8th Cir.1990); United States v. Burch, 873 F.2d 765, 768 (5th Cir.1989). It is unclear from the record of appellant’s sentencing hearing whether Judge Elfvin recognized that he had authority under the Guidelines to depart downwardly in view of defendant’s family ties and responsibilities. His comments at one point suggest that while he understood he could so depart under section 5H1.6 in considering family ties, he concluded that appellant’s circumstances in this respect were not sufficiently extraordinary to warrant such a departure. Subsequent passages in the transcript, however, are ambiguous on this issue. At a later point, for example, the judge appeared to suggest that in the absence of the Guidelines he would have given serious consideration to a sentence of probation: In the old days, prior to the change of the law relative to sentencing and the generation of these sentencing guidelines .... I would frankly have" }, { "docid": "23237901", "title": "", "text": "529, 530; see also U.S.S.G. § 5K1.1. The district court therefore also erred in factoring Thomas’ family circumstances into its departure equation. Having reached that conclusion, the panel proceeded to consider Thomas’ argument that Guidelines section 5H1.6 authorized the district court to consider her extraordinary family circumstances. At the time of our decision in Thomas I, section 5H1.6 provided: Family ties and responsibilities and community ties are not ordinarily relevant in determining whether a sentence should be outside the guidelines. Family responsibilities that are complied with are relevant in determining whether to impose restitution and fines. Where the guidelines provide probation as an option, these factors may be relevant in this determination. If a defendant is sentenced to probation or supervised release, family ties and responsibilities that are met may be relevant in the determination of the length and conditions of supervision. Despite the Sentencing Commission’s use of the word “ordinarily” in the first sentence of section 5H1.6, the Thomas I panel concluded that even extraordinary family circumstances would not provide a basis for departure from an imprisonment range. 930 F.2d at 530 (“Section 5H1.6 contains no suggestion that departures may be based on family considerations whenever they strike judges as particularly compelling.”). Instead, family considerations are only relevant, Thomas I held, to the imposition of restitution or a fine, or to the length and conditions of probation and supervised release, where those sentencing options are available. Id. The court concluded that “the Commission’s affirmative statement that family responsibilities are rel evant when probation is an option suggests that the Commission did not intend them to be relevant when, as here, probation is not a sentencing option.” Id. (emphasis in original). By the time Mattie Lou Thomas was re-sentenced on remand, however, the Commission had amended section 5H1.6 in several significant respects: Family ties and responsibilities and community ties are not ordinarily relevant in determining whether a sentence should be outside the applicable guideline range. Family responsibilities that are complied with may be relevant to the determination of the amount of restitution or fine. (Eff. Nov. 1,1991). We observed in" }, { "docid": "22151151", "title": "", "text": "They therefore may constitute proper grounds for departure. Policy statement 5H1.6 does not alter this conclusion, but simply reinforces what we would have expected in any case: that the Commission, in formulating the guidelines, was aware that incarceration may undermine family responsibilities. The Commission’s own words suggest the same. The Com mission was careful to specify that family responsibilities “are not ordinarily relevant.” U.S.S.G. § 5H1.6, p.s. (emphasis added). The Commission thus offered what we may call a “soft” policy statement, rather than one with unequivocal language. If the Commission had intended an absolute rule that family circumstances may never be taken into account in any way, it would have said so. Compare U.S.S.G. § 5H1.10, p.s. (imposing absolute ban on consideration of racial and other factors). Section 5H1.6’s phrasing confirms the Commission’s understanding that ordinary family circumstances do not justify departure, but extraordinary family circumstances may. See United States v. Peña, 930 F.2d 1486, 1495 (10th Cir.1991). As we explained in United States v. Sharpsteen, 913 F.2d 59, 63 (2d Cir.1990), “[t]he clear implication of section 5H1.6 is that if the court finds that the circumstances related to family ties and relationships are extraordinary, it is not precluded as a matter of law from taking them into account in making a downward departure.” Such extraordinary family circumstances were present in United States v. Alba, 933 F.2d 1117 (2d Cir.1991). There, the defendant and his wife cared for their four- and eleven-year-old daughters and the defendant’s disabled father and paternal grandmother. Noting the special situation of this “close-knit family whose stability depends on [the defendant’s] continued presence,” we let stand the sentencing court’s finding that “incarceration in accordance with the Guidelines might well result in the destruction of an otherwise strong family unit” and its conclusion “that these circumstances were sufficiently extraordinary in this case to support a downward departure.” Id. at 1122. Extraordinary family circumstances are widely accepted as a valid reason for departure. See, e.g., Peña, 930 F.2d at 1495; United States v. Big Crow, 898 F.2d 1326, 1331-32 (8th Cir. 1990); United States v. Jackson, 756 F.Supp." }, { "docid": "23330364", "title": "", "text": "on family considerations whenever they strike judges as particularly compelling. Had the Commission wanted to do that, it knew how; in § 5H1.4, for example, the guidelines state that, although a defendant’s physical condition is not “ordinarily” relevant in determining whether to depart, sentencing courts may depart on the basis of “an extraordinary physical impairment.” Section 5H1.6 grants no similar license. Moreover, the Commission’s affirmative statement that family responsibilities are relevant when probation is an option suggests that the Commission did not intend them to be relevant when, as here, probation is not a sentencing option. See McHan, 920 F.2d at 248 (community ties not relevant to departure decision when probation is not an option); Brady, 895 F.2d at 543. Thomas essentially concedes this point, since she argues that the relevance of § 5H1.6 lies in the fact that it makes family responsibilities relevant when probation is an available option. This reading is also consistent with the general philosophy that undergirds the Sentencing Guidelines. They reflect Congress’s desire to base criminal punishment on the offense committed rather than on the defendant’s personal characteristics. McHan, 920 F.2d at 247. “[0]f the fifteen grounds for departure listed in [Chapter 5, Part K of the guidelines] not a single one looks to characteristics of the defendant: ten factors examine the specific criminal conduct and the resulting harm, and five relate to the defendant’s mental capacity or motive at the time of the conduct.” Id. That the guidelines do not treat the personal characteristics of defendants as completely irrelevant is true. United States v. Lara, 905 F.2d 599, 604-05 (2d Cir.1990). That their relevance is limited, however, is clear. The Commission promulgated the policy statements in Part H of Chapter 5 of the guidelines in response to Congress’s directive “to consider whether certain specific offender characteristics ‘have any relevance to the nature, extent, place of service, or other incidents of an appropriate sentence’ and to take them into account only to the extent they are determined relevant by the Commission.” U.S.S.G. Ch. 5, Pt. H, intro, comment. The commentary to Part H was recently" }, { "docid": "14001626", "title": "", "text": "background when imposing sentence). But see United States v. Big Crow, 898 F.2d at 1331-32 (affirming departure because of offender’s consistent employment record and efforts to make “decent life in difficult environment” on Pine Ridge Indian Reservation). Similarly, under the guidelines, “family ties ... are not ordinarily relevant in determining whether a sentence should be outside the guidelines.” Guidelines § 5H1.6. Most courts have refused to depart on the basis of family circumstances on the basis of this guideline policy statement. See United States v. Neil, 903 F.2d at 565-66 (close family ties and helping young people not sufficiently unusual); United States v. Sutherland, 890 F.2d 1042, 1043 (8th Cir.1989) (per curiam) (no departure despite “unusual family responsibilities”); United States v. Sailes, 872 F.2d 735, 739 (6th Cir.1989) (no departure despite status as custodial parent of minor children); United States v. Weidner, 703 F.Supp. 1350, 1356 (N.D.Ind.1988) (no departure despite support of spouse and stepchildren), aff'd mem., 885 F.2d 873 (7th Cir.1989); United States v. Rodriguez, 691 F.Supp. 1252, 1253 (W.D.Mo.1988) (reference in dicta to another case in which court held it was not unreasonable to consider “special family situation” when both parents of small children faced imprisonment), aff'd mem., 881 F.2d 1080 (8th Cir.1989). But cf. United States v. Big Crow, 898 F.2d at 1331-32 (affirming departure based in part upon marriage and support of children in “difficult environment” of Indian reservation). Our initial task is to determine whether departure is justified on the basis of appellee’s family situation, that is, his status as an adopted child. The guidelines apparently do not refer to adoptive status. However, adoption, even cross-racial or cross-cultural adoption, although not common, is not rare or unusual in the United States. For this reason, we do not think an offender’s status as an adopted child is so unusual or atypical that the Sentencing Commission did not adequately take such circumstances into consideration in formulating the guidelines. SENTENCING DISPARITY We further note that the district court should not have relied upon the perceived disparity between the sentencing guideline range applicable to appellee and that applicable to" }, { "docid": "9332435", "title": "", "text": "relevant in the determination of the length and conditions of supervision. U.S.S.G. § 5H1.6. The Commission thus fully considered whether family ties and responsibilities should be considered in determining “whether a sentence should be outside the guidelines” and concluded that they are not “ordinarily relevant.” The three exceptions noted to this principle, involving restitution and fines, probation and supervised release, do not apply to this case. Although this court has not previously dealt with the issue, the Fourth, Sixth and Eighth Circuits have held that, unless there are unique or extraordinary circumstances, a downward departure from the Guidelines, based on the defendant’s parental responsibilities, is improper. United States v. Goff, 907 F.2d 1441, 1446 (4th Cir.1990) (district court’s downward departure because defendant had three children who would be left with defendant’s mother was improper because “[t]here is nothing extraordinary about Goff’s family responsibilities”); United States v. Brand, 907 F.2d 31, 33 (4th Cir.), cert. denied, — U.S. —, 111 S.Ct. 585, 112 L.Ed.2d 590 (1990) (district court’s downward departure because defendant was sole custodial parent of two children was improper); United States v. Brewer, 899 F.2d 503, 508-09 (6th Cir.), cert. denied, — U.S. —, 111 S.Ct. 127, 112 L.Ed.2d 95 (1990) (district court’s downward departure based, in part, on defendants’ status as a mother of small children was improper). United States v. Johnson, 908 F.2d 396, 398-99 (8th Cir.1990) (defendant’s status as single mother of infant did not justify downward departure). We agree with those decisions and hold that unless there are extraordinary circumstances, a district court may not depart downwardly outside the Guidelines to reflect a defendant’s parental situation. Here Cacho “has shown nothing more than that which innumerable defendants could no doubt establish: namely, that the imposition of prison sentences normally disrupts ... parental relationships.” United States v. Daly, 883 F.2d 313, 319 (4th Cir.1989), cert. denied, — U.S. —, 110 S.Ct. 2622, 110 L.Ed.2d 643 (1990). The district court properly refused a downward departure because of Cacho’s four small children. The judgment of the district court is AFFIRMED." }, { "docid": "9332434", "title": "", "text": "Supp.1989).” United States v. Gonzalez-Lopez, 911 F.2d 542, 549 (11th Cir.1990), cert. denied, — U.S. —, 111 S.Ct. 2056, 114 L.Ed.2d 461 (1991). In accordance with the directives in the statute creating the Sentencing Commission that the Guidelines should take “family ties and responsibilities” “into account only to the extent that they do have relevance” (28 U.S.C. § 994(d)(7) (1988)) and should “reflect the general inappropriateness of considering the ... family ties ... of the defendant,” (id. at § 994(e)), the Commission included in the Guidelines in force at the time of Cacho’s sentencing the following policy statement about “family ties and responsibilities”: Family ties and responsibilities and community ties are not ordinarily relevant in determining whether a sentence should be outside the guidelines. Family responsibilities that are complied with are relevant in determining whether to impose restitution and fines. Where the guidelines provide probation as an option, these factors may be relevant in this determination. If a defendant is sentenced to probation or supervised release, family ties and responsibilities that are met may be relevant in the determination of the length and conditions of supervision. U.S.S.G. § 5H1.6. The Commission thus fully considered whether family ties and responsibilities should be considered in determining “whether a sentence should be outside the guidelines” and concluded that they are not “ordinarily relevant.” The three exceptions noted to this principle, involving restitution and fines, probation and supervised release, do not apply to this case. Although this court has not previously dealt with the issue, the Fourth, Sixth and Eighth Circuits have held that, unless there are unique or extraordinary circumstances, a downward departure from the Guidelines, based on the defendant’s parental responsibilities, is improper. United States v. Goff, 907 F.2d 1441, 1446 (4th Cir.1990) (district court’s downward departure because defendant had three children who would be left with defendant’s mother was improper because “[t]here is nothing extraordinary about Goff’s family responsibilities”); United States v. Brand, 907 F.2d 31, 33 (4th Cir.), cert. denied, — U.S. —, 111 S.Ct. 585, 112 L.Ed.2d 590 (1990) (district court’s downward departure because defendant was sole custodial parent" } ]

[ { "docid": "5866733", "title": "", "text": "DECISION and ORDER CURTIN, District Judge. BACKGROUND This is one of a series of cases involving the high incidénce of bladder cancer among employees of the Goodyear Tire & Rubber Company in Niagara Falls, New York. In this action, plaintiffs Harry Gibbs, Robert Bailey, Anthony D’Orazio, and William Mooney, all former employees of Goodyear, sue defendants DuPont, Allied-Signal, First Mississippi, First Chemical, Cyanamid and USX in negligence and strict product liability. Plaintiffs claim that the defendants manufactured and sold orthotoluidine and/or anilide to Goodyear without providing adequate warning of the health hazards of these products. Plaintiffs further claim that these chemical compounds were defective and unreasonably dangerous when used in a foreseeable manner and that exposure to these substances subjected them to a significant excess risk of developing bladder cancer. Plaintiffs move to certify a class under Rule 23(b)(2) of the Federal Rules of Civil Procedure of all retired and former Goodyear employees at the Niagara Falls plant who were assigned to work in Department 245 or had job duties which exposed them to the substances orthotoluidine and aniline during the period of January 1, 1957, through June 11, 1990, and who have not been diagnosed with bladder cancer. None of the named plaintiffs claim to have any present physical injury. Rather, they rely on a study conducted by the National Institute for Occupational Safety and Heath (“NIOSH”), which found that the Goodyear workers at the Niagara Falls plant have an excess risk of developing bladder cancer ranging from 3.6 to 27.2 times the normal risk. Because of the long latency period, NIOSH recommended an ongoing medical monitoring program designed to detect bladder cancer at its earliest stage. Thus, plaintiffs seek injunc-tive relief in the form of a court-administered fund paid for by defendants which would cover the reasonably anticipated costs of a medical monitoring program for bladder cancer for the lifetime of the class members. Defendants move to dismiss the complaint on several grounds. They assert that plaintiffs’ claim is moot because Goodyear already provides a medical monitoring program and the plaintiffs’ union, the Oil, • Chemical, and Atomic" } ]

[ { "docid": "12311176", "title": "", "text": "had an increased risk of illness as a result of their use of TCE contaminated water. The plaintiffs’ did not allege actual injury or damage, however, and the court held that the complaint failed to state a claim since it is a basic tenet of tort law that a plaintiff cannot recover without proof of actual injury or damage. A claim of “increased risk” was found to be insufficient to overcome that fundamental rule. “The mere breach ... of duty ... causing nominal damages, speculative harm, or the threat of future harm not yet realized does not suffice to create a cause of action for negligence.” Id. at 107 (quoting Schenkel v. Monheit, 266 Pa.Super. 396, 399, 405 A.2d 493, 494 (1979)). Westinghouse argues that although the plaintiffs in the present case have alleged injury, only seventeen have alleged any physical symptoms, and no medical evidence has been proffered to establish a causal link between the exposure to the chemicals and the symptoms in question. The plaintiffs rely upon Habitants Against Landfill Toxicants v. City of York, No. 84-5-3820 (York Co. May 20, 1985), 15 Envtl.L.Rep. 20937, in which the court rejected an argument that acute physical injury is a predicate to the recovery of medical monitoring expenses. The court merely required proof of exposure to hazardous substances, “the potential for severe and latent injuries, and the need for early detection and treatment.” Id., slip op. at -, 15 Envtl.L.Rep. at -. Quoting from Ayers v. Jackson Township (Ayers I), 189 N.J.Super. 561, 572-73, 461 A.2d 184, 190 (1983), the court wrote: Damages may be recovered for the prospective consequences of a tortious injury (cite omitted). It is not the reasonable probability of whether plaintiffs will suffer cancer in the future that should determine whether medical surveillance is necessary. Rather, it is whether it is necessary, based on medical judgment, that a plaintiff who has been exposed to known carcinogens at various levels should undergo annual medical testing in order to properly diagnose the warning signs of the development of the disease. If it is necessary, then the probability of" }, { "docid": "5866737", "title": "", "text": "procedures which are necessary to insure early detection of bladder cancer. Plaintiffs have provided a sufficient critique of the current Goodyear program to show that a factual dispute' exists' regarding its adequacy. Therefore, summary judgment on mootness is inappropriate at this stage.' II. Medical Monitoring Defendants contend that plaintiffs’ complaint fails to state a claim because the New York Court of Appeals has not and, if presented with the issue, would not recognize a cause of action for medical monitoring. State law announced by the highest court in the forum state is controlling in federal court in a diversity case. Erie Railroad v. Tompkins, 304 U.S. 64, 68 S.Ct. 817, 82 L.Ed. 1188 (1938). Where there is no decision by the highest court, “then federal authorities must apply what they find to be the state law after giving ‘proper regard’ to relevant rulings of other courts of the state.” Commissioner v. Bosch, 387 U.S. 456, 465, 87 S.Ct. 1776, 1782, 18 L.Ed.2d 886 (1967). The New York Court of Appeals has not yet recognized a cause of action for medical monitoring. Defendants cite several examples of Court of Appeals decisions which express hesitancy at the judicial creation or expansion of tort liability in such fields as psychic injury, DES, fetal rights, and asbestos. Item 21 at 28-32. They argue that this caution by New York’s highest court would carry over to medical monitoring. Defendants urge this court not to create such an expansion in the absence of any clear direction from the state judiciary. Plaintiffs claim to the contrary that New York was one of the first states to recognize that the future expenses of medical monitoring could be a recoverable consequential damage from exposure to toxic chemicals if the plaintiffs could prove an increased risk of future harm by reason of their exposure and a reasonable anticipation that the expenditures for medical monitoring would be incurred as a result. Askey v. Occidental, 102 A.D.2d 130, 477 N.Y.S.2d 242, 247 (4th Dept. 1984). Plaintiffs cite several earlier cases to show that Askey is consistent with well-settled New York law. See" }, { "docid": "23050198", "title": "", "text": "plaintiff[ smoker]’s claim would, of course, remain subject to all available affirmative defenses, such ' as contributory negligence”); Potter, 6 Cal.4th at 974, 25 Cal. Rptr.2d 550, 863 P.2d at 801 (“when a defendant in a [toxic landfill] negligence action demonstrates that a plaintiffs smoking is negligent and that a portion of the plaintiffs fear of cancer is attributable to the smoking, comparative fault principles may be applied to reduce the amount of recovery for emotional distress damages based on such fear”). See also Dangler, 241 A.D.2d at 294, 672 N.Y.S.2d at 191 (in a cancerphobia case involving a toxic landfill, a jury may properly consider the plain tiffs’ “voluntary exposure to carcinogens, for example, by smoking”). E. Certification of Questions to the New York Court of Appeals In cases such as this one, in which state law controls and the governing principles are uncertain or ambiguous, we attempt to predict how the highest court of the state would resolve the uncertainty or ambiguity. See, e.g., Travelers Insurance Co. v. 633 Third Associates, 14 F.3d 114, 119 (2d Cir.1994). In so doing, we give full weight to the decisions of the state’s highest court, and we give due regard to the decisions of the state’s lower courts. See, e.g., Phansalkar v. Andersen Weinroth & Co., 344 F.3d 184, 199 (2d Cir.2003); Michalski v. Home Depot, Inc., 225 F.3d 113, 116 (2d Cir.2000). We also remain “free to consider all of the resources to which the highest court of the state could look, including decisions in other jurisdictions on the same or analogous issues,” Leon’s Bakery, Inc. v. Grinnell Corp., 990 F.2d 44, 48 (2d Cir.1993). As the discussion in Parts III.A., B., C., and D. above indicates, where the plaintiffs have alleged tortious exposure to toxic substances but have not alleged that they suffered physical injury, the New York intermediate appellate courts have ruled that the cost of medical monitoring may be awarded as an item of consequential damages, most of the federal district courts sitting in New York have opined that New York would recognize an independent claim for" }, { "docid": "21275944", "title": "", "text": "monitoring expenses can constitute a form of damages, even where the present injury is insignificant. In Askey v. Occidental Chem. Corp., 102 A.D.2d 130, 477 N.Y.S.2d 242 (App. Div. 4th Dep’t 1984), the Appellate Division addressed “the novel issue” of “whether those persons who have an increased risk of cancer, genetic damage and other illnesses by reason of their exposure to the toxic chemicals emanating from the landfill, but whose physical injuries are not evident, should be certified as a class for the purpose of determining their right to recover the costs of future medical monitoring services to diagnose warning signs of the development of disease.” Id. at 244. The court determined that “there is a basis in law to sustain a claim for medical monitoring as an element of consequential damages.” Id. at 256. It held that “a defendant is liable for ‘reasonably anticipated’ consequential damages which may flow later from that invasion although the invasion itself is ‘an injury too slight to be noticed at the time it is inflicted.’ ” Id. at 247 (quoting Schmidt v. Merchants Despatch Transp. Co., 270 N.Y. 287, 200 N.E. 824, 827 (1936)). Since Askey, a number of other New York state courts have recognized claims for medical monitoring. See, e.g., Allen v. Gen. Elec. Co., 32 A.D.3d 1163, 821 N.Y.S.2d 692 (App. Div. 4th Dep’t 2006); Abusio v. Consol. Edison Co. of N.Y., 238 A.D.2d 454, 656 N.Y.S.2d 371 (App. Div.2d Dep’t 1997); Gerardi v. Nuclear Util. Servs., Inc., 149 Misc.2d 657, 566 N.Y.S.2d 1002 (N.Y.Sup.Ct.1991). None of these decisions, however, explicitly recognizes medical monitoring as a separate cause of action, independent of any present physical injury. Federal courts considering the issue have reached differing conclusions. Compare In re World Trade Center Disaster Site Litig., No. 21 MC 100, 2006 WL 3627760, at *3 (S.D.N.Y. Dec.12, 2006) (Medical monitoring and fear of cancer “may perhaps be considered as equitable remedies, if causes of action are otherwise proved and if the remedies are held to be appropriate and in accordance with the law. They do not constitute independent causes of action.”), with" }, { "docid": "23050157", "title": "", "text": "medical certainty that such expenditures are “reasonably anticipated” to be incurred by reason of their exposure. There is no doubt that such a remedy would permit the early detection and treatment of maladies and that as a matter of public policy the tort-feasor should bear its cost. Id. at 137, 477 N.Y.S.2d at 247 (emphasis added). Although Askey also opined that the statute of limitations had begun to run from the date of the plaintiffs’ last exposure to the toxic substances, a view that, as discussed in Part II.A.1. above, was subsequently rejected by the New York Court of Appeals in Snyder, Snyder did not purport to deal with Askey’s views of the availability of damages or of equitable relief in the form of medical monitoring. Nor are we aware of any other New York Court of Appeals case that has addressed this issue. Following Askey, New York intermediate appellate courts and trial-level courts have continued to rule that plaintiffs who have been tortiously exposed to toxic substances and can show that they have a rational'basis for their fear of developing cancer may be allowed to recover the cost of medical monitoring as an element of reasonably anticipated consequential damages. See, e.g., Osarczuk v. Associated Universities, Inc., 36 A.D.3d 872, 877, 830 N.Y.S.2d 711, 715 (2d Dep’t 2007) (holding “medical monitoring and other injunctive relief’ available as remedies for claims of negligence and gross negligence in causing exposure to hazardous non-nuclear chemicals and substances). As indicated in Part II.A.2. above, the “ ‘rational basis’ ” element means there must be a “clinically demonstrable presence of [the toxic substance] in the plaintiffs body, or some indication of [toxin]induced disease, i.e., some physical manifestation of [toxic] contamination.” Abusio, 238 A.D.2d at 455, 656 N.Y.S.2d at 372 (upholding dismissal of claims for future cost of medical monitoring for cancer “[b]ecause the appellants failed to show a ‘rational basis’ for their fear of developing the disease”); see, e.g., Allen v. General Electric Co., 32 A.D.3d 1163, 1164-65, 821 N.Y.S.2d 692, 693-95 (4th Dep’t 2006) (“Allen”) (overturning a judgment that dismissed medical monitoring claims by" }, { "docid": "23050154", "title": "", "text": "right to recover the costs of future medical monitoring services to diagnose warning signs of the development of disease. 102 A.D.2d at 131, 477 N.Y.S.2d at 244. The court noted that one group of plaintiffs was solely concerned with injuries which have not surfaced but which may afflict them in the future. They allege that their exposure has increased their risk of developing cancer and other chemically induced diseases, and in their complaint seek as a remedy the imposition of a constructive trust upon the property owned by defendants in an amount sufficient to pay for the cost of medical detection services made necessary by the increased hazards, reserving the right to seek damages for such enhanced risks. Id. at 133, 477 N.Y.S.2d at 245. The court stated that “damages resulting from the enhanced risk of cancer and the threat of future harm not yet realized are not compensable in a tort action.” Id. at 135, 477 N.Y.S.2d at 246 (emphasis added). However, the court concluded that recovery “for medical monitoring”, was available “as an element of consequential damage.” Id. (emphasis added). [A] plaintiff has a cause 'of action immediately upon exposure to a foreign substance- and can recover all damages which he can show resulted or would result therefrom, even though at the time the action is commenced no serious damage to the plaintiff has developed. The theory of liability grows out of the invasion of the body by the foreign substance, with the assumption being-that the substance acts immediately upon the body setting in motion the forces which eventually result in disease.... The defendant is liable for “reasonably anticipated” consequential damages which may flow later from that invasion although -the invasion itself is an injury too slight to be noticed at the time it is inflicted. Id. at 136, 477 N.Y.S.2d at 247 (other internal quotation marks omitted). The court went on to note that [t]he proof problems are, of course, formidable. In order to recover-for apprehended consequences not presently manifest, there must be such a degree of .‘.probability of their occurrence as to amount to a reasonable" }, { "docid": "23050153", "title": "", "text": "by the New York Court of Appeals. And although the matter has been dealt with in New York’s intermediate appellate- courts, in the federal district courts in New York, and in the highest courts of several other states, the treatments have varied. A. Decisions of New York State Courts In 1984, the Appellate Division in Askey, dealing with claims of exposure to toxic discharges from a landfill, considered whether the plaintiffs could recover for anticipated needs for medical monitoring. The procedural question before that court was whether the plaintiffs’ motion for class action certification had been properly de nied; an underlying substantive question concerned the cognizability of claims for damages or injunctive relief by those plaintiffs who had not yet exhibited physical injury: The novel issue presented is whether those persons who have an increased risk of cancer, genetic damage and other illnesses by reason of their exposure to the toxic chemicals emanating from the landfill, but whose physical injuries are not evident, should be certified as a class for the purpose of determining their right to recover the costs of future medical monitoring services to diagnose warning signs of the development of disease. 102 A.D.2d at 131, 477 N.Y.S.2d at 244. The court noted that one group of plaintiffs was solely concerned with injuries which have not surfaced but which may afflict them in the future. They allege that their exposure has increased their risk of developing cancer and other chemically induced diseases, and in their complaint seek as a remedy the imposition of a constructive trust upon the property owned by defendants in an amount sufficient to pay for the cost of medical detection services made necessary by the increased hazards, reserving the right to seek damages for such enhanced risks. Id. at 133, 477 N.Y.S.2d at 245. The court stated that “damages resulting from the enhanced risk of cancer and the threat of future harm not yet realized are not compensable in a tort action.” Id. at 135, 477 N.Y.S.2d at 246 (emphasis added). However, the court concluded that recovery “for medical monitoring”, was available “as an" }, { "docid": "21275951", "title": "", "text": "the prescribed monitoring regime is different from that normally recommended in the absence of the exposure; and (7) the prescribed monitoring regime is reasonably necessary according to contemporary scientific principles.” Id. These elements incorporate the Appellate Division’s holding in Askey, where the court stated: The future expense of medical monitoring, could be a recoverable consequential damage provided that plaintiffs can establish with a reasonable degree of medical certainty that such expenditures are “reasonably anticipated” to be incurred by reason of their exposure. Askey 477 N.Y.S.2d at 247 (quoted in Pao-li I. 916 F.2d at 851). The third element set forth above specifically references negligence, presumably because Paoli I involved an allegation of negligent conduct. There is no reason why a cause of action for medical monitoring could not be grounded on other types of tortious conduct, such as acts that are intentional or those for which a defendant is held strictly liable. In the present case, a cause of action for medical monitoring may be based on negligence, strict liability, abnormally dangerous activities, nuisance, or trespass. Accordingly, the third element must be modified to reflect this broader scope. The Court therefore predicts that the New York Court of Appeals would recognize a cause of action for medical monitoring, established by proving: (1) exposure greater than normal background levels; (2) to a proven hazardous substance; (3) caused by the defendant’s tortious conduct; (4) as a proximate result of the exposure, plaintiff has a significantly increased risk of contracting a serious latent disease; (5) a monitoring procedure exists that makes the early detection of the disease possible; (6) the prescribed monitoring regime is different from that normally recommended in the absence of the exposure; and (7) the prescribed monitoring regime is reasonably necessary according to contemporary scientific principles. In this case, the Landowners allege that they were exposed to PCBs because of Monsanto’s and GE’s tortious conduct, resulting in elevated levels of PCBs in their blood and body organs, which puts them at an increased risk of developing PCB-related cancers and diseases and makes regular medical monitoring necessary. Drawing all reasonable inferences" }, { "docid": "22185213", "title": "", "text": "an element of consequential damage, he must establish with a degree of reasonable medical certainty through expert testimony that such expenses will be incurred. In light of the foregoing, it would appear that under the proof offered here persons exposed to toxic chemicals emanating from the landfill have an increased risk of invisible genetic damage and a present cause of action for their injury, and may recover all “reasonably anticipated” consequential damages. The future expense of medical monitoring could be a recoverable consequential damage provided that plaintiffs can establish with a reasonable degree of medical certainty that such expenditures are “reasonably anticipated” to be incurred by reason of their exposure. Id. at 136-37, 477 N.Y.S.2d at 247 (citations omitted). Thus, the appropriate inquiry is not whether it is reasonably probable that plaintiffs will suffer harm in the future, but rather whether medical monitoring is, to a reasonable degree of medical certainty, necessary in order to diagnose properly the warning signs of disease. Federal district courts, sitting in diversity, have addressed the medical monitoring issue under Pennsylvania law. In Villari v. Terminix International, Inc., 663 F.Supp. 727 (E.D.Pa.1987), the court allowed plaintiffs, who had presented sufficient medical evidence of present physical injuries resulting from exposure to an allegedly carcinogenic pesticide, to recover the costs of future medical surveillance. Id. at 735. The court required a showing of present physical injury and expressly refused to follow Ayers, which it characterized as holding that “the cost of future medical monitoring is a proper element of damages whenever medical testimony establishes the need for future monitoring.” Id. at 735 n. 5. However, because the plaintiffs in Villari had demonstrated sufficient physical injury, the question whether the cause of action could be sustained without it was not squarely raised. Villari’s putative physical injury requirement was rejected in Merry v. Westinghouse Electric Corp., 684 F.Supp. 847 (M.D.Pa.1988). In Merry, property owners whose wells had been contaminated by toxic substances sought recovery for, inter alia, the cost of medical surveillance. In denying defendant’s motion for summary judgment, the court agreed with Villari that “a plaintiff need not" }, { "docid": "23050158", "title": "", "text": "rational'basis for their fear of developing cancer may be allowed to recover the cost of medical monitoring as an element of reasonably anticipated consequential damages. See, e.g., Osarczuk v. Associated Universities, Inc., 36 A.D.3d 872, 877, 830 N.Y.S.2d 711, 715 (2d Dep’t 2007) (holding “medical monitoring and other injunctive relief’ available as remedies for claims of negligence and gross negligence in causing exposure to hazardous non-nuclear chemicals and substances). As indicated in Part II.A.2. above, the “ ‘rational basis’ ” element means there must be a “clinically demonstrable presence of [the toxic substance] in the plaintiffs body, or some indication of [toxin]induced disease, i.e., some physical manifestation of [toxic] contamination.” Abusio, 238 A.D.2d at 455, 656 N.Y.S.2d at 372 (upholding dismissal of claims for future cost of medical monitoring for cancer “[b]ecause the appellants failed to show a ‘rational basis’ for their fear of developing the disease”); see, e.g., Allen v. General Electric Co., 32 A.D.3d 1163, 1164-65, 821 N.Y.S.2d 692, 693-95 (4th Dep’t 2006) (“Allen”) (overturning a judgment that dismissed medical monitoring claims by plaintiffs who “were exposed to the toxins but exhibit no present illness or injury as a result of that exposure”); Dangler, 241 A.D.2d at 294, 672 N.Y.S.2d at 190 (finding that, as to claims of cancerphobia resulting from exposure to toxic emissions from landfill, trial court erred in excluding evidence as to plaintiffs’ need for medical monitoring and in not submitting that issue to the jury); Gerardi v. Nuclear Utility Services, Inc., 149 Misc.2d 657, 657-59, 566 N.Y.S.2d 1002, 1003-04 (Sup.Ct.West. Co.1991) (“Gerardi ”) (although stating that “damages resulting from the enhanced risk of disease and the threat of future harm not yet realized are not com-pensable in a tort action,” ruling that “plaintiffs have stated a cause of action for both reasonably anticipated consequential damages, to include future medical expenses for lifetime medical monitoring and diagnostic treatment as a result of the negligence of defendants in causing, or suffering to be caused, exposure of plaintiffs to toxic asbestos contamination and for negligent infliction of emotional distress”). B. Decisions by Federal District Courts in New" }, { "docid": "5866738", "title": "", "text": "cause of action for medical monitoring. Defendants cite several examples of Court of Appeals decisions which express hesitancy at the judicial creation or expansion of tort liability in such fields as psychic injury, DES, fetal rights, and asbestos. Item 21 at 28-32. They argue that this caution by New York’s highest court would carry over to medical monitoring. Defendants urge this court not to create such an expansion in the absence of any clear direction from the state judiciary. Plaintiffs claim to the contrary that New York was one of the first states to recognize that the future expenses of medical monitoring could be a recoverable consequential damage from exposure to toxic chemicals if the plaintiffs could prove an increased risk of future harm by reason of their exposure and a reasonable anticipation that the expenditures for medical monitoring would be incurred as a result. Askey v. Occidental, 102 A.D.2d 130, 477 N.Y.S.2d 242, 247 (4th Dept. 1984). Plaintiffs cite several earlier cases to show that Askey is consistent with well-settled New York law. See Item 31 at 29-30. Defendants counter that the discussion plaintiffs rely on in Askey was dictum and unworkable as a standard because it is unclear whether a showing of present injury or the probability of future injury is necessary for recovery. Item 21 at 33-37. No appellate court in New York State to date has held that a cause of action exists for medical monitoring. Indeed, defendants cite several recent asbestos cases in which appellate division courts affirmed summary judgment orders dismissing tort actions where there was no physical manifestation of contamination nor even allegations of “actual exposure to asbestos, at toxic levels, sufficient to state a cause of action upon which relief can be based.” Jones v. Utilities Painting Corp., 198 A.D.2d 268, 603 N.Y.S.2d 646 (2d Dept. 1993) (citing cases). Defendants argue that these eases show that New York courts follow a “proof of physical injury” standard as the predicate for liability on a medical monitoring claim. Item 21 at 38-40. In response, plaintiffs refer to a four-part test developed by the United" }, { "docid": "23050160", "title": "", "text": "York In addition, most of the federal district courts sitting in New York State have ruled that medical monitoring is available as a remedy for tortious exposure to carcinogenic substances even if the plaintiffs have not exhibited symptoms of cancer, concluding that the New York. Court of Appeals would recognize such a claim. In Gibbs v. E.I. DuPont De Nemours & Co., 876 F.Supp. 475 (W.D.N.Y.1995) (“Gibbs ”), the plaintiffs alleged that their job duties exposed them to chemical compounds that were defective and unreasonably dangerous when used in a foreseeable manner; they complained that exposure to those substances subjected them to an excessive risk of developing bladder cancer. See id. at 476. The plaintiffs had not been diagnosed .with bladder cancer and sought “in-junctive relief in the form of a court-administered fund paid for by defendants which would cover the reasonably anticipated costs of a medical monitoring program for bladder cancer for the lifetime of the class members.” Id. at 477. The defendants moved to dismiss on the ground, inter alia, that New York State does not recognize a cause of action for medical monitoring damages in the absence of present physical injury. Relying on Askey and on two decisions of the federal court of appeals for the Third Circuit in In re Paoli R.R. Yard PCB Litigation, 916 F.2d 829 (3d Cir.1990) (“Paoli I”), and 35 F.3d 717 (3d Cir.1994) (“Paoli II”), the district court rejected defendants’ argument, stating as follows: Although the New York courts have not conclusively ruled on the availability of a claim for medical monitoring in the absence of present injury, I believe that Askey accurately represents a growing national acceptance of a such a claim ... and would be embraced by the New York Court of Appeals. Thus, the medical monitoring claim shall stand. Gibbs, 876 F.Supp. at 479; see also Paoli I, 916 F.2d at 850 (“[t]he injury in a medical monitoring claim is the cost”). The Gibbs court also concluded that the request for a “court-administered fund which goes beyond payment of the costs of monitoring an individual plaintiffs health to" }, { "docid": "23050122", "title": "", "text": "approximately fifteen or sixteen (McCauley [sic ]). 112. To the extent that there is not a legal remedy available to Plaintiffs, Defendant’s egregious conduct and its dev- . astating consequences impose a duty on the Court under New York Law to fashion an appropriate equitable remedy to redress the grave effects of Philip Mor-rises] misconduct. 113. The programmatic ■ medical monitoring through LDCT sought by Plaintiffs in the instant action is a remedy appropriately tailored to both the nature of Philip Morris’ misconduct, and the injuries that it has inflicted on the class members. (4th Am. Comp. ¶¶ 111-113.) Plaintiffs also renewed their motion for class certification. . . • Philip Morris moved under Fed.R.Civ;P. 12(b)(6) to dismiss this independent cause of action for failure to state a claim, arguing that New York would not recognize such a claim. It argued that even if the State would approve. of ordering medical monitoring as a remedy, it would do so only as a remedy for an existing tort. The district court rejected these contentions. The district court explored cases decided by New York courts and other courts, see Caronia II, 2011 WL 338425, at *5-*6, and predicted that the- New York Court of Appeals would recognize an independent claim for medical monitoring, and ... further predicted] that the Court of Appeals would conclude that the statute of limitations for such a claim begins to run on the first date that some medical monitoring program is accepted within the medical community as an effective meth od of lung cancer screening or surveillance. Caronia II, 2011 WL 338425, at *3. The court also hypothesized that to establish such a claim a plaintiff would b'e required to plead the following elements: (1) exposure at greater than background levels; (2) to a proven hazardous substance; (3) caused by defendant’s tortious conduct; (4) as a proximate result of the exposure, plaintiff-faces an elevated risk of contracting a serious latent disease; (5) a monitoring procedure exists that makes early detection possible; (6) the monitoring program is different than the program normally prescribed in the absence of exposure;" }, { "docid": "18772179", "title": "", "text": "essential to a prima facie showing of negligence: (1) duty owed by defendant to plaintiff; (2) breach of that duty; (3) injury by plaintiff; and (4) cause of plaintiffs injury was the defendant’s breach of that duty). More specifically, the defendants contend that “[t]he risk or probability of sustaining damages is not sufficient to maintain a negligence cause of action in New York State.” Defendants’ Opposition Memorandum at 6. It is difficult to discern from plaintiffs’ amended reply memorandum exactly what they are arguing in this respect. They appear to be asserting, however, that the minor children should be allowed to explicitly allege negligence causes of action because although they do not manifest any physical injury at this time, due to alleged exposure to tetrachloroethylene (perchloroethylene) (“TCE”), they may in the future. Plaintiffs also seem to be asserting that the minor children should be allowed to amend their complaint as to the negligence causes of action because they have a heightened fear of developing cancer in the future. In that regard, the minor children apparently want to assert a claim to recover for future expenses for medical monitoring. Finally, plaintiffs respond that the injuries to the minor children are not “contingent, speculative or merely possible,” and thus they should be allowed to amend their complaint to specifically include negligence claims on behalf of those children. Plaintiffs Amended Reply Memorandum at 4 (citing Askey v. Occidental Chem. Corp., 102 A.D.2d 130, 136, 477 N.Y.S.2d 242, 247 (4th Dep’t 1984)). Acknowledging that “[t]he proof problems are, of course, formidable[,]” the Fourth Department in Askey permitted recovery, as consequential damages, of future expenses for medical monitoring resulting from exposure to toxic chemicals which emanated from a landfill. Id. The Askey court “held that plaintiffs who have been exposed to toxic substances had a claim for injuries not yet present, but restricted the rule to eases where the ‘probability of their occurrence [amounted to] a reasonable certainty.’ ” Penny v. United Fruit Co., 869 F.Supp. 122, 127 (E.D.N.Y.1994) (quoting Askey, 477 N.Y.S.2d at 247)). More particularly, the court explicitly stated that “[d]amages for the" }, { "docid": "21275952", "title": "", "text": "trespass. Accordingly, the third element must be modified to reflect this broader scope. The Court therefore predicts that the New York Court of Appeals would recognize a cause of action for medical monitoring, established by proving: (1) exposure greater than normal background levels; (2) to a proven hazardous substance; (3) caused by the defendant’s tortious conduct; (4) as a proximate result of the exposure, plaintiff has a significantly increased risk of contracting a serious latent disease; (5) a monitoring procedure exists that makes the early detection of the disease possible; (6) the prescribed monitoring regime is different from that normally recommended in the absence of the exposure; and (7) the prescribed monitoring regime is reasonably necessary according to contemporary scientific principles. In this case, the Landowners allege that they were exposed to PCBs because of Monsanto’s and GE’s tortious conduct, resulting in elevated levels of PCBs in their blood and body organs, which puts them at an increased risk of developing PCB-related cancers and diseases and makes regular medical monitoring necessary. Drawing all reasonable inferences in favor of the plaintiffs, the Court finds that the Landowners have adequately alleged the elements set forth above. Accordingly, Monsanto’s and GE’s motions to dismiss are denied with respect to the Landowners’ medical monitoring claim. 2. Fear of Contracting Illness The analysis above also applies to claims for fear of contracting illness following exposure to a toxic substance. Like the financial burden of medical monitoring, fear of contracting illness is a present damage. As it does not depend on whether an illness is actually contracted, it is not speculative. Rather, it compensates a victim for the presently-existing emotional distress that accompanies the knowledge of an increased risk of contracting a serious illness. The Court therefore predicts that, in cases of exposure to toxic substances, the New York Court of Appeals would recognize a separate cause of action for fear of contracting illness. In order to guarantee the trustworthiness of such a claim, a plaintiff is required to establish “both that he was in fact exposed to the disease-causing agent and that there is a" }, { "docid": "23050159", "title": "", "text": "plaintiffs who “were exposed to the toxins but exhibit no present illness or injury as a result of that exposure”); Dangler, 241 A.D.2d at 294, 672 N.Y.S.2d at 190 (finding that, as to claims of cancerphobia resulting from exposure to toxic emissions from landfill, trial court erred in excluding evidence as to plaintiffs’ need for medical monitoring and in not submitting that issue to the jury); Gerardi v. Nuclear Utility Services, Inc., 149 Misc.2d 657, 657-59, 566 N.Y.S.2d 1002, 1003-04 (Sup.Ct.West. Co.1991) (“Gerardi ”) (although stating that “damages resulting from the enhanced risk of disease and the threat of future harm not yet realized are not com-pensable in a tort action,” ruling that “plaintiffs have stated a cause of action for both reasonably anticipated consequential damages, to include future medical expenses for lifetime medical monitoring and diagnostic treatment as a result of the negligence of defendants in causing, or suffering to be caused, exposure of plaintiffs to toxic asbestos contamination and for negligent infliction of emotional distress”). B. Decisions by Federal District Courts in New York In addition, most of the federal district courts sitting in New York State have ruled that medical monitoring is available as a remedy for tortious exposure to carcinogenic substances even if the plaintiffs have not exhibited symptoms of cancer, concluding that the New York. Court of Appeals would recognize such a claim. In Gibbs v. E.I. DuPont De Nemours & Co., 876 F.Supp. 475 (W.D.N.Y.1995) (“Gibbs ”), the plaintiffs alleged that their job duties exposed them to chemical compounds that were defective and unreasonably dangerous when used in a foreseeable manner; they complained that exposure to those substances subjected them to an excessive risk of developing bladder cancer. See id. at 476. The plaintiffs had not been diagnosed .with bladder cancer and sought “in-junctive relief in the form of a court-administered fund paid for by defendants which would cover the reasonably anticipated costs of a medical monitoring program for bladder cancer for the lifetime of the class members.” Id. at 477. The defendants moved to dismiss on the ground, inter alia, that New York" }, { "docid": "23050152", "title": "", "text": "255, 662 N.E.2d 730 (internal quotation marks omitted). By contrast, “the UCC’s concept of a ‘defective’ product requires an inquiry only into whether the product in question was fit for the ordinary purposes for which such goods are used.” Id. at 258, 639 N.Y.S.2d at 256, 662 N.E.2d 730 (internal quotation marks omitted). Products liability’s “negligence-like risk/utility approach is foreign to the realm of contract law.” Id. at 262, 639 N.Y.S.2d at 258, 662 N.E.2d 730. The issue of fact raised by plaintiffs as to whether Philip Morris could have made Marlboro cigarettes safer, therefore, is not an issue that is material to the claim of breach of implied warranty of merchantability. That implied warranty is not breached if the cigarettes were minimally safe when used in the customary, usual, and reasonably foreseeable manner. We conclude that summary judgment dismissing these claims was appropriate. III. MEDICAL MONITORING AS AN INDEPENDENT CLAIM The question of whether a plaintiff may maintain an independent cause of action for medical, monitoring under New York law has not been addressed by the New York Court of Appeals. And although the matter has been dealt with in New York’s intermediate appellate- courts, in the federal district courts in New York, and in the highest courts of several other states, the treatments have varied. A. Decisions of New York State Courts In 1984, the Appellate Division in Askey, dealing with claims of exposure to toxic discharges from a landfill, considered whether the plaintiffs could recover for anticipated needs for medical monitoring. The procedural question before that court was whether the plaintiffs’ motion for class action certification had been properly de nied; an underlying substantive question concerned the cognizability of claims for damages or injunctive relief by those plaintiffs who had not yet exhibited physical injury: The novel issue presented is whether those persons who have an increased risk of cancer, genetic damage and other illnesses by reason of their exposure to the toxic chemicals emanating from the landfill, but whose physical injuries are not evident, should be certified as a class for the purpose of determining their" }, { "docid": "21275943", "title": "", "text": "plaintiffs are burdened with the expense of regular medical testing. This medical monitoring is intended to detect the onset of latent injuries or diseases and to facilitate early diagnosis and treatment. However, plaintiffs may be unable to recover under traditional tort law, which generally requires a presently existing physical injury. Recognizing this difficulty, a number of states have allowed plaintiffs to bring claims for the costs of periodic medical monitoring. Of the states that recognize a claim for medical monitoring, some consider it to be an independent cause of action that does not require a separate compen-sable injury, while others treat it as a form of remedy for an existing tort, such as negligence. Compare Bower v. Westinghouse Elec. Corp., 206 W.Va. 133, 522 S.E.2d 424, 429 (1999) (independent cause of action), with Hinton ex rel. Hinton v. Monsanto Co., 813 So.2d 827 (Ala.2001) (remedy available only with present physical injury). The New York Court of Appeals has not specifically addressed the issue of medical monitoring claims, but several lower courts have held that medical monitoring expenses can constitute a form of damages, even where the present injury is insignificant. In Askey v. Occidental Chem. Corp., 102 A.D.2d 130, 477 N.Y.S.2d 242 (App. Div. 4th Dep’t 1984), the Appellate Division addressed “the novel issue” of “whether those persons who have an increased risk of cancer, genetic damage and other illnesses by reason of their exposure to the toxic chemicals emanating from the landfill, but whose physical injuries are not evident, should be certified as a class for the purpose of determining their right to recover the costs of future medical monitoring services to diagnose warning signs of the development of disease.” Id. at 244. The court determined that “there is a basis in law to sustain a claim for medical monitoring as an element of consequential damages.” Id. at 256. It held that “a defendant is liable for ‘reasonably anticipated’ consequential damages which may flow later from that invasion although the invasion itself is ‘an injury too slight to be noticed at the time it is inflicted.’ ” Id. at" }, { "docid": "5866747", "title": "", "text": "is highly individualistic, and depends upon the characteristics of individual plaintiffs (e.g., state of health, lifestyle) and the nature of their exposure to Agent Orange. Although generic causation and individual circumstances concerning each plaintiff and his or her exposure to Agent Orange thus appear to be inextricably intertwined [at the time the class was certified by the district court], the class action would have allowed generic causation to be determined without regard to those characteristics and the individual’s exposure. 818 F.2d at 165. Defendants maintain that this caution in certifying classes protects potential members of a proposed class as well as defendants. Under Rule 23(b)(2), class members may not opt out of their class. Therefore, a verdict that exposure to the chemicals at issue does not cause bladder cancer would most likely preclude a class member who later contracted cancer from presenting proof of causality. Item 34 at 12-13. Secondly, defendants claim that certification under Rule 23(b)(2) is inappropriate because that subsection was not intended to be used when money damages is the primary relief requested. When “ ‘the realities of the litigation’ demonstrate that the suit has been brought primarily for money damages, it may not be maintained as a (b)(2) class action.” Christiana Mortg. Corp. v. Delaivare Mortg. Bankers Ass’n, 136 F.R.D. 372, 381 (D.Del.1991) quoting In re School Asbestos Litigation, 789 F.2d 996, 1008 (3d Cir.), cert. denied sub nom., Celotex Corp. v. School Dist. of Lancaster, 479 U.S. 852, 107 S.Ct. 182, 93 L.Ed.2d 117 (1986). Defendants urge the court not to view the relief sought by plaintiffs as injunctive merely because the plaintiffs wish the money damages to be put into a common, court-administered fund. See Hurt v. Philadelphia Housing Authority, 151 F.R.D. 555 (E.D.Pa.1993) (class certification denied for plaintiffs seeking monitoring expenses and an educational program for exposure to lead paint). Plaintiffs respond that where medical monitoring claimants have sought integrated relief, courts have concluded that certification under Rule 23(b)(2) is appropriate. In two recent cases, plaintiff-classes seeking medical monitoring programs for workers exposed to radioactive substances at nuclear weapons facilities were certified. Day" }, { "docid": "23050156", "title": "", "text": "certainty, that they will result.... Damages for the prospective consequences of a tortious injury are recoverable only if the prospective consequences may with reasonable probability be expected to flow from the past harm. Consequences which are contingent, speculative, or merely possible are not properly considered in ascertaining damages..... If a plaintiff seeks future medical expenses as an element of consequential damage, he must establish with a degree of reasonable medical certainty through expert testimony that such expenses will be incurred.... Id. at 136-37, 477 N.Y.S.2d at 247. While the Askey court ultimately ruled that there were a number of individualized issues that warranted upholding the denial of ¿lass certification, it concluded that the record sufficed to indicate that the persons exposed to toxic chemicals emanating from the landfill have an increased risk of invisible genetic damage and a present cause of action for their injury, and may recover all “reasonably anticipated” consequential damages. The future expense of medical monitoring could be a recoverable consequential damage provided that plaintiffs can establish with a reasonable degree of medical certainty that such expenditures are “reasonably anticipated” to be incurred by reason of their exposure. There is no doubt that such a remedy would permit the early detection and treatment of maladies and that as a matter of public policy the tort-feasor should bear its cost. Id. at 137, 477 N.Y.S.2d at 247 (emphasis added). Although Askey also opined that the statute of limitations had begun to run from the date of the plaintiffs’ last exposure to the toxic substances, a view that, as discussed in Part II.A.1. above, was subsequently rejected by the New York Court of Appeals in Snyder, Snyder did not purport to deal with Askey’s views of the availability of damages or of equitable relief in the form of medical monitoring. Nor are we aware of any other New York Court of Appeals case that has addressed this issue. Following Askey, New York intermediate appellate courts and trial-level courts have continued to rule that plaintiffs who have been tortiously exposed to toxic substances and can show that they have a" } ]

[ { "docid": "7773219", "title": "", "text": "the influence observed a driver weave within his lane (two feet in each direction) for approximately three-quarters of a mile. The court considered as a matter of first impression in California whether an officer “may lawfully detain a driver[on the basis of driving under the influence] who has been observed to be weaving within his lane.” 221 Cal.Rptr. 776, 777 (1985) (emphasis added). Adopting the reasoning of cases from other states in which courts have held that weaving within one’s lane for substantial distances creates reasonable suspicion of driving under the influence, the court held that “pronounced weaving within a lane provides an officer with reasonable cause to stop a vehicle on suspicion of driving under the influence where such weaving continues for a substantial distance.” Id. at 778 (emphasis added). Here, Estrada-Nava and Colin did not demonstrate “pronounced weaving” of up to two feet in either direction, or weave for a “substantial distance.” In fact, the only “suspicious” behavior Carmichael observed was Estrada-Nava and Colin’s car touching the right fog line and the center yellow line each for 10 seconds, after legitimate lane changes. This is hardly “pronounced weaving.” See State v. Caron, 534 A.2d 978, 979 (Me.1987) (holding that “single, brief straddling of the center line of the undivided highway, with no oncoming traffic in sight and no vehicles passing on the left ... did not give rise to an objectively reasonable suspicion” of intoxication or fatigue); State v. Bello, 871 P.2d 584, 587 (Utah Ct.App.1994) (finding a single incident of weaving in windy conditions insufficient to justify a stop based on suspicion of drunk driving). Similarly, Carmichael’s entire observation lasted only 35-45 seconds, which is not long enough to show that Estrada-Nava and Colin were weaving for a “substantial” distance. We agree with the Tenth Circuit, which has aptly observed: [I]f failure to follow a perfect vector down the highway or keeping one’s eyes on the road were sufficient reasons to suspect a person of driving while impaired, a substantial portion of the public would be subject each day to an invasion of their privacy. United States" } ]

[ { "docid": "23383724", "title": "", "text": "Smith, the law enforcement officer who made the stop (1) began pursuit before he observed any weaving, (2) made no attempt to investigate the possibility of intoxication after he stopped the car, and (3) described the car as being driven with an “abundance of caution ... indicatpng] that the stop was unrelated to any possible concern with traffic safety.” Smith, 799 F.2d at 710-11. Further, Smith only crossed into the emergency lane once. Finally, the district court expressly found that “the weaving of the car was a pretext for the stop.” Smith, 799 F.2d at 706 n. 2. No such facts are present in this case. First, Harris weaved across the emergency lane twice, once before Peavy decided to follow the car and again after Peavy began following the car. Second, when Peavy stopped Harris he investigated whether Harris was intoxicated or falling asleep. Third, Peavy testified that he routinely stops cars where the driver is weaving. Finally, the district court found that a reasonable officer would have concluded that Harris was either driving under the influence of alcohol, in violation of state law or falling asleep at the wheel. Because we find (1) that reasonable suspicion supported Peavy’s decision to stop Harris, and (2) that a reasonable officer would have stopped Harris in the absence of an invalid purpose, we hold that the district court did not err when it found the stop to be valid. III. The Detention In United States v. Sokolow, 490 U.S. 1, 109 S.Ct. 1581, 1585, 104 L.Ed.2d 1 (1989), the Supreme Court, following Terry, held that a police officer “can ... briefly detain a person for investigative purposes if the officer has a reasonable suspicion supported by articulable facts that criminal activity ‘may be afoot.’ ” “In assessing whether a detention is too long in duration to be justified as an investigative stop, we consider it appropriate to examine whether the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly, during which time it was necessary to detain the defendant.” United States v. Sharpe, 470" }, { "docid": "23094786", "title": "", "text": "from a dealership associated with drug trafficking, and driver’s residence in neighborhood under investigation for narcotics activity, did not support a finding of reasonable suspicion); see also State v. Lafferty, 291 Mont. 157, 160, 967 P.2d 363 (1998) (dispatcher’s report and officer’s observation of defendant crossing the fog line were insufficient for particularized suspicion that defendant was driving under the influence). Our previous cases recognize that even considered altogether, as the totality of circumstances test requires, certain conduct is simply not sufficient to justify a traffic stop. Sitting close to the steering wheel and swerving once within one’s lane of traffic are not actions, either together or separately, or even in conjunction with a vague and unsubstantiated tip, that give rise to reasonable suspicion. Both activities, even in conjunction, are at least as likely to be subject to innocent explanations (for example, the driver could be inexperienced, short, new to the particular road upon which she or he is traveling, or all three) as they are to indicate criminal activity. In fact, Officer Schock testified that the highway surface contained both perpendicular dips as well as ruts caused by heavy truck traffic, both of which are factors that may have caused weaving. Officer Schock also stated that it would not be unreasonable for a person to make a minor swerve within her lane upon witnessing a police car approaching her from behind at speeds well over the legal limit. While conduct that is not necessarily indicative of criminal activity may, in certain circumstances, still be a consideration in the reasonable suspicion calculus, innocuous conduct alone does not justify an investigatory stop unless the presence of additional information or circumstances tend to indicate criminal activity has occurred or is about to take place. United States v. Montero-Camargo, 208 F.3d 1122, 1130 (9th Cir.2000) (en banc). No such additional information or circumstances were present in the instant case. The majority asserts that because Officer Schock is an experienced officer, it was reasonable for him to associate sitting close to the steering wheel with intoxicated driving. Maj. Op. at 1120. Exactly this argument" }, { "docid": "23099070", "title": "", "text": "of sleep. We disagree. We do not find that an isolated incident of a vehicle crossing into the emergency lane of a roadway is a violation of Utah law. This interpretation of Utah law has been followed by the Utah courts. See e.g., State of Utah v. Bello, 871 P.2d 584, 586 (Utah App.1994) (a single instance of weaving does not constitute a violation of Utah Code Ann. § 41-6-61(1)). We agree with the Utah court which noted that the statute requires only that the vehicle remain entirely in a single lane “as nearly as practical.” Id. The road was winding, the terrain mountainous and the weather condition was windy. Under these conditions any vehicle could be subject to an isolated incident of moving into the right shoulder of the roadway, without giving rise to a suspicion of criminal activity. The driver may have decided to pull over to check his vehicle and then have a sudden change of mind and pulled back into the traffic lane. Since the movement of the vehicle occurred toward the right shoulder, other traffic was in no danger of collision. These facts lead us to conclude that the single occurrence of moving to the right shoulder of the roadway which was observed by Officer Barney could not constitute a violation of Utah law and therefore does not warrant the invasion of Fourth Amendment protection. The alternative premise relied upon by the magistrate and district court to justify the stop of defendant’s vehicle is Officer Barney’s purported reasonable suspicion that the defendant was impaired by alcohol or lack of sleep. In Botero-Ospina, we decided that straddling the center lane marker of an interstate could constitute an adequate basis to investigate for impairment of the driver due to sleepiness or intoxication. See also, United States v. Lee, 73 F.3d 1034 (10th Cir.1996). Driving under the influence of alcohol is a violation of Utah law. Utah Code Ann. § 41-6-44. However, Officer Barney testified that he did not intend to stop the defendant to conduct a DUI investigation and in fact, he did not administer a road" }, { "docid": "14811025", "title": "", "text": "MEMORANDUM OPINION AND ORDER RULING ON MOTION TO SUPPRESS EVIDENCE ALAN B. JOHNSON, District Judge. On March 24, 1989, Alejandro Garcia Ibarra and his friend, Maria Linares, were traveling at a lawful rate of speed in a white 1981 Oldsmobile Cutlass with California tags east through Wyoming on Interstate 80. At that time, Wyoming Highway Patrolman Scott Mahaffey noticed the car because its driver, Ibarra, appeared to be driving at a rate of speed slightly slower than other traffic. He also observed that the car appeared to “weave” within its marked lane of traffic. Thinking that the driver of the car was intoxicated, Mahaffey followed the vehicle for approximately five miles during which he saw the vehicle pass two other vehicles by making what he characterized as “abrupt lane changes without the use of turn signals.” At the time that the vehicle made one of the passes, Mahaf-fey noticed that the vehicle almost cut off a pickup truck. After observing intermittent weaving, Mahaffey stopped the vehicle to determine whether the driver was intoxicated. Before getting out of his patrol car, Ma-haffey noticed there were two persons in the Oldsmobile. He stepped out of his patrol car and approached the driver’s side of Ibarra’s vehicle and asked him for his driver’s license, which Ibarra promptly produced. When Mahaffey informed Ibarra that he stopped him for failing to signal before passing and for weaving, Ibarra responded that he thought he had signaled, but perhaps he had not. Mahaffey returned to his patrol car where he issued a warning ticket to Ibarra for failing to signal when passing. Although Mahaffey stopped Ibarra on suspicion of drunk driving, he failed to pursue an investigation of this possible offense other than by conducting a cursory observation of Ibarra’s appearance and behavior. While in his patrol car, Mahaffey requested that his dispatcher check Ibarra’s driver’s license. The dispatcher indicated that Ibarra’s license had been suspended for failure to pay reissue fees. Using his loud speaker, Mahaffey requested that Ibarra bring the vehicle registration to him. He told Ibarra about his suspended driver’s license and that he" }, { "docid": "22919761", "title": "", "text": "serious criminal activity.” Cannon, 29 F.3d at 476; United States v. Bowhay, 992 F.2d 229, 231 (9th Cir.1993). The stop here was not pre-textual under either inquiry. Troopers Owens and Roll observed Perez’s van pass them and weave back and forth across the fog line. The officers testified that they thought the van’s driver was possibly either intoxicated or falling asleep at the wheel. As it turned out, the van’s steering was malfunctioning. Whatever the cause, the officers’ decision to stop the van was one any reasonable highway patrol officer would make. We agree with the magistrate judge: in order to find the stop pretextual, this Court would have to find that but for their interdiction duties Troopers Owens and Roll would have irresponsibly’ allowed an apparently impaired driver to continue unimpeded down the highway. The Court rejects such a finding as incogitable. ER at 9. See United States v. Lillard, 929 F.2d 500, 502 (9th Cir.1991) (stop was not pretextual where officer observed car driving erratically); United States v. Smith, 799 F.2d 704, 709 (11th Cir.1986) (stop was not pretextual where officer observed car weaving in and out of its lane). Perez argues that the facts that Owens and Roll (1) had been trained as interdiction officers, and (2) had officer Carlson and his dog on standby, prove they were concerned only with catching drug runners. These facts, however, prove only that the officers were prepared for the possibility that they might develop probable cause to search after making a valid traffic stop. Moreover, Perez’s contention that they pulled him over because they suspected him of drug activity is not supported by the record. No evidence suggests that the officers had reason to be suspicious of Perez’s van before they stopped it. See United States v. Gutierrez-Mederos, 965 F.2d 800, 803 (9th Cir.1992) (rejecting appellant’s contention that primary reason for stop was because his car fit “Narcotics Trafficking Characteristics” profile)* cert. denied, — U.S. —, 113 S.Ct. 1315, 122 L.Ed.2d 702 (1993). In sum, there is no support for Perez’s contention that troopers Roll and Owens stopped him because" }, { "docid": "23094787", "title": "", "text": "that the highway surface contained both perpendicular dips as well as ruts caused by heavy truck traffic, both of which are factors that may have caused weaving. Officer Schock also stated that it would not be unreasonable for a person to make a minor swerve within her lane upon witnessing a police car approaching her from behind at speeds well over the legal limit. While conduct that is not necessarily indicative of criminal activity may, in certain circumstances, still be a consideration in the reasonable suspicion calculus, innocuous conduct alone does not justify an investigatory stop unless the presence of additional information or circumstances tend to indicate criminal activity has occurred or is about to take place. United States v. Montero-Camargo, 208 F.3d 1122, 1130 (9th Cir.2000) (en banc). No such additional information or circumstances were present in the instant case. The majority asserts that because Officer Schock is an experienced officer, it was reasonable for him to associate sitting close to the steering wheel with intoxicated driving. Maj. Op. at 1120. Exactly this argument was rejected in Colin however. Colin, 314 F.3d at 445 n. 4. While “officers are encouraged to draw upon their ... experience in assessing the ‘totality of the circumstances,’ ” Colin, 314 F.3d at 442, the deference we accord to officer experience is not “unbridled.” Hernandez-Alvarado, 891 F.2d at 1416. “[The facts supporting reasonable suspicion] must ... be more than the mere subjective impressions of a particular officer. Permissible deductions or rational inferences must be grounded in objective facts and be capable of rational explanation.” Id. In the instant case, Officer Schock’s opinion that sitting near to the steering wheel is a sign of intoxication was entirely unsupported by objective fact. Moreover, the fact that Officer Schock did not conduct a sobriety field test or ask Fernandez-Castillo if he had been drinking or using drugs is indicative that Schock did not actually harbor reasonable suspicion that Fernandez-Castillo was impaired. Colin, 314 F.3d at 446. In short, both the tip and the officer’s observations, viewing them from Officer Schock’s perspective at the time he made the" }, { "docid": "15384545", "title": "", "text": "the emergency lane at all times. See Gregory, 79 F.3d at 978; State v. Bello, 871 P.2d 584, 587 (Utah Ct.App.1994) (holding that one in stance of weaving does not constitute a violation of Utah Code Ann. § 41-6-61(1)). Thus, in Gregory, we recognized nothing more than the fact that because the driver did not violate the Utah statute, no basis existed for the officer to form the reasonable suspicion necessary for the traffic stop in question. In contrast to the Utah statute, Mo.Rev. Stat. § 304.015.6 does not allow drivers to comply with the right-lane requirement “as nearly as practicable.” Instead, the Missouri statute sets forth only three conditions under which vehicles may enter the left-hand lane: (1) “when overtaking and passing another vehicle”; (2) “when preparing to make a proper left turn”; and (3) “when otherwise directed by traffic markings, signs, or signals.” Id. Unlike Utah Code Ann. § 41-6-61(1), a driver violates Mo.Rev.Stat. § 304.015.6 if his vehicle enters the left-hand lane for any reason other than the three justifications enumerated in the statute. The Missouri statute does not include an exception for improper vehicle weight, driver visibility, or wind. Thus, regardless of the wind, the darkness, or the weight of his trailer, when Mr. Cervine’s truck entered the left lane, he violated Mo.Rev.Stat. § 304.015.6. This violation provided the troopers with reasonable suspicion to stop Mr. Cervine’s car. The fact that the troopers had other motivations for stopping Mr. Cervine has no bearing upon this review. “Subjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis.” Whren v. United States, 517 U.S. 806, 813, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996). “[A] traffic stop is valid under the Fourth Amendment if the stop is based on an observed traffic violation or if the police officer has reasonable articulable suspicion that a traffic or equipment violation has occurred or is occurring.” United States v. Botero-Ospina, 71 F.3d 783, 787 (10th Cir.1995) (en banc). Thus, once the Trooper observed a traffic violation, such as swerving across the lane dividing line in violation of Mo.Rev.Stat. § 304.015, the" }, { "docid": "15384544", "title": "", "text": "to our holding in United States v. Gregory, 79 F.3d 973 (10th Cir.1996). In Gregory, the defendant, while driving a U-Haul truck through a windstorm, swerved one time into an emergency lane on a windy, mountain road. We held that the officer did not have reasonable suspicion to support a traffic stop because this action did not violate Utah law. Id. at 978. Mr. Cervine contends that the similarity of vehicles and driving conditions here and in Gregory requires a comparable holding in this case. Mr. Cervine misreads our decision in Gregory. For purposes of establishing reasonable suspicion, we only consider vehicle and weather conditions when the underlying state statute so directs. We considered these conditions in Gregory because the underlying Utah statute contained an-as-nearly-as-practical requirement. The relevant statute in Gregory, Utah Code Ann. § 41-6-61(1), requires that “[a] vehicle shall be operated as nearly as practical entirely within a single lane.... ” Id. (emphasis added). Given the difficult weather, vehicle, and road conditions, it was not “practical” for the driver in Gregory to avoid the emergency lane at all times. See Gregory, 79 F.3d at 978; State v. Bello, 871 P.2d 584, 587 (Utah Ct.App.1994) (holding that one in stance of weaving does not constitute a violation of Utah Code Ann. § 41-6-61(1)). Thus, in Gregory, we recognized nothing more than the fact that because the driver did not violate the Utah statute, no basis existed for the officer to form the reasonable suspicion necessary for the traffic stop in question. In contrast to the Utah statute, Mo.Rev. Stat. § 304.015.6 does not allow drivers to comply with the right-lane requirement “as nearly as practicable.” Instead, the Missouri statute sets forth only three conditions under which vehicles may enter the left-hand lane: (1) “when overtaking and passing another vehicle”; (2) “when preparing to make a proper left turn”; and (3) “when otherwise directed by traffic markings, signs, or signals.” Id. Unlike Utah Code Ann. § 41-6-61(1), a driver violates Mo.Rev.Stat. § 304.015.6 if his vehicle enters the left-hand lane for any reason other than the three justifications enumerated in" }, { "docid": "23094767", "title": "", "text": "coupled with an officer's observation of the defendant's crossing the fog line were insufficient to create particularized suspicion that the driver was impaired. Id. at 366. But significant to the court's analysis was the fact that the officer did not testify that his training or experience led him to infer that the behavior he observed was characteristic of an impaired driver. Id. Here, Schock not only testified to that effect but also provided reasons why sitting very close to the steering wheel and swerving in one’s lane may indicate impairment. . According to the dissent, Officer Schock's observations must be disregarded because sitting close to the steering wheel and swerving once within a lane do not “constitute conduct that supports a finding of reasonable suspicion.” We respectfully disagree on this record. The Supreme Court expressly rejected the dissent’s \"divide-and-conquer analysis” in United States v. Arvizu, 534 U.S. at 274, 122 S.Ct. 744. In Arvizu, the Court upheld an investigatory stop near the border where the officer who effectuated the stop observed, among other things, that: the driver appeared rigid and stiff in his posture; the children in the car artificially waved to the officer as if they were instructed; and the vehicle turned at an intersection to avoid a border checkpoint. Id. at 270-71, 122 S.Ct. 744. The Court conceded that these factors, taken alone, were \"susceptible of innocent explanation.” Id. at 277, 122 S.Ct. 744. But taken together, the Court held that these factors formed \"a particularized and objective basis for[the officer’s] stopping the vehicle, making the stop reasonable within the meaning of the Fourth Amendment.” Id. at 277-78, 122 S.Ct. 744. Watching a driver sit very close to his steering wheel and weave within his lane might not, standing alone, give rise to reasonable suspicion that the driver was impaired. See supra, note 6 (discussing our decision in United States v. Colin). But this type of behavior is highly relevant when, as in this case, there is also a reliable report of erratic driving. . Ultimately, the officers decided to stop the car because it had tinted windows." }, { "docid": "7283986", "title": "", "text": "Cir.1996), requires a different result. We do not agree. In that case, on a clear and windy day at 6:00 p.m., a police officer noticed the defendant driving a U-haul truck along a winding roadway in the mountainous high desert. Id. at 975. The officer testified that he saw the defendant’s truck cross two feet into the right shoulder of the emergency lane of the highway, and that crossing into the emer gency lane is a violation of Utah law and could be a sign that the driver was sleepy or was intoxicated. Id. at 975-76. The officer further testified that he stopped the truck because of this alleged traffic violation and to see if the driver was awake, but that he did not intend to conduct a DUI investigation. Id. at 976. After obtaining the driver’s license, the officer did nothing to determine whether the driver was impaired, other than asking whether he was “awake.” Id. The magistrate made a finding, which was adopted by the district court, that the driver’s brief entrance into the emergency lane violated a Utah statute that a vehicle be operated “as nearly as practical entirely within a single lane ...” Id. at 978 (quoting Utah Code Ann. § 41-6-61(1)). Moreover, the magistrate found that the act of crossing into the emergency lane gave rise to a reasonable suspicion that the driver was impaired by alcohol or lack of sleep. Id. We disagreed, and ruled that we “do not find that an isolated incident of a vehicle crossing into the emergency lane of a roadway is a violation of Utah law.” Id. Bustillos-Munoz’s assertion notwithstanding, we do not believe that Gregory controls our decision here. Gregory was premised on the fact that in the Utah Court’s interpretation of the relevant statute, an isolated incident of a vehicle crossing into the emergency lane of a roadway is not a violation of the law. We noted that in State of Utah v. Bello, 871 P.2d 584, 586 (Utah App.1994), the state court had held that a single instance of weaving does not constitute a violation of" }, { "docid": "23094766", "title": "", "text": "was, in fact, the car described in the dispatch. . Standing alone, Officer Schock's observations of the Monte Carlo weaving within its lane might not have supported the investigatory stop of Fernandez’s car. We recently declared an investigatory stop unconstitutional where the officer only observed the car for 35-45 seconds before stopping the driver, and the \"weave” observed by the officer was not pronounced. United States v. Colin, 314 F.3d 439, 445-46 (9th Cir.2002). Our decision in Colin expressly left open the possibility that \"pronounced weaving” or weaving for a “substantial distance” might give rise to a reasonable suspicion that the driver of the weaving car is intoxicated, thereby justifying an investigatory stop — even though the officer does not observe the driver commit a traffic infraction. Id. Regardless, the MDOT report and Fernandez's sitting close to the steering wheel make this case distinguishable from Colin. . This case is also distinguishable from State v. Lafferty, 291 Mont. 157, 967 P.2d 363 (1998). In that case, the Montana Supreme Court concluded that a dispatcher's report coupled with an officer's observation of the defendant's crossing the fog line were insufficient to create particularized suspicion that the driver was impaired. Id. at 366. But significant to the court's analysis was the fact that the officer did not testify that his training or experience led him to infer that the behavior he observed was characteristic of an impaired driver. Id. Here, Schock not only testified to that effect but also provided reasons why sitting very close to the steering wheel and swerving in one’s lane may indicate impairment. . According to the dissent, Officer Schock's observations must be disregarded because sitting close to the steering wheel and swerving once within a lane do not “constitute conduct that supports a finding of reasonable suspicion.” We respectfully disagree on this record. The Supreme Court expressly rejected the dissent’s \"divide-and-conquer analysis” in United States v. Arvizu, 534 U.S. at 274, 122 S.Ct. 744. In Arvizu, the Court upheld an investigatory stop near the border where the officer who effectuated the stop observed, among other things, that:" }, { "docid": "4223058", "title": "", "text": "equipment regulations’ of the jurisdiction.” United States v. Hunnicutt, 135 F.3d at 1348 (quoting Delaware v. Prouse, 440 U.S. 648, 653, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979)). For there to be reasonable suspicion of wrongdoing, the facts known to the officer must have provided him with “a particularized and objective basis for suspecting legal wrongdoing.” United States v. Quintana-Garcia, 343 F.3d 1266, 1270 (10th Cir.2003) (quotations and citations omitted); see United States v. Edgerton, 438 F.3d 1043, 1047 (10th Cir.2006). “The evaluation is made from the perspective of the reasonable officer, not the reasonable person.” Quintana-Garcia, 343 F.3d at 1270 (italics omitted). A reasonable suspicion is “more than an inchoate and unparticularized suspicion or hunch,” is “considerably less than ... a preponderance of evidence,” and is “only a minimal level of objective justification.” Edgerton, 438 F.3d at 1047 (quotation and citation omitted). Trooper Nicholas conducted the traffic stop after observing the Impala weave out of its lane of traffic and cross over the fog line by at least the width of a tire. Besides believing this was a lane violation of K.S.A. § 8-1522(a), Trooper Nicholas was concerned that the driver could be sleepy or drowsy as evidenced by the swerve onto the shoulder and other circumstances. The court will consider both grounds in deciding whether Trooper Nicholas has reasonable suspicion to stop the defendants’ car. The defendants maintain the single swerve onto the shoulder does not violate K.S.A. § 8-1522(a), which states: “A vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety.” The defendants argue that the Kansas Court of Appeals in State v. Ross, 37 Kan.App.2d 126, 149 P.3d 876 (2007), “changed the legal landscape for analysis of K.S.A. 8-1522 violations.” (Dk.27, p. 6). Disagreeing with the defendant’s reading of Ross, the government offers that the reasonable suspicion inquiry on a § 8-1522 violation has always been fact-driven and that unlike the situation in Ross Trooper Nicholas here was concerned the" }, { "docid": "23094783", "title": "", "text": "seconds, during which time the vehicle: drove within the speed limit and properly activated his turn signals before making lane changes. [The officer] thought [the driver] was ‘possibly” driving under the influence because the car’s wheels touched the fog line on the right side of the right lane for 10 seconds and then, about 5-10 second later, touched the yellow line of the far left of the left lane for another 10 seconds. 314 F.3d at 445. In coming to the conclusion that such conduct was not sufficient to constitute “pronounced weaving” or to justify a stop, the Colin court approvingly quoted the 10th Circuit, which noted that “if the failure to follow a perfect vector down the highway or keep one’s eyes on the road were sufficient reasons to suspect a person of driving while impaired, a substantial portion of the public would be subject each day to an invasion of their privacy.” United States v. Lyons, 7 F.3d 973, 976 (10th Cir.1993), as quoted in 314 F.3d at 446. In the instant case, Officer Schock followed the car for less than three minutes, during which time he observed the vehicle “drifting within the lane, whereas it goes from the fog line to the center line and back.” He did not witness the vehicle violate any traffic laws and, contrary to the officers in Colin, specifically testified at trial that he believed the behavior he personally observed did not warrant issuing a citation. Under Colin, these observations do not provide a basis for reasonable suspicion. Our precedent prior to Colin is clear that common, non-illegal motorist behavior does not give rise to reasonable suspicion. [BJecause most people are not such paragons of driving skill and virtue that they consistently adhere to each one of the complex laws relating to the operation of motor vehicles, there are many opportunities to stop targeted vehicles ... But those opportunities are not limitless. Suspicions must be reasonable, and they cannot be if they are not sufficient to cause an officer to believe that the driver has done something illegal. United States v. Mariscal," }, { "docid": "7773220", "title": "", "text": "yellow line each for 10 seconds, after legitimate lane changes. This is hardly “pronounced weaving.” See State v. Caron, 534 A.2d 978, 979 (Me.1987) (holding that “single, brief straddling of the center line of the undivided highway, with no oncoming traffic in sight and no vehicles passing on the left ... did not give rise to an objectively reasonable suspicion” of intoxication or fatigue); State v. Bello, 871 P.2d 584, 587 (Utah Ct.App.1994) (finding a single incident of weaving in windy conditions insufficient to justify a stop based on suspicion of drunk driving). Similarly, Carmichael’s entire observation lasted only 35-45 seconds, which is not long enough to show that Estrada-Nava and Colin were weaving for a “substantial” distance. We agree with the Tenth Circuit, which has aptly observed: [I]f failure to follow a perfect vector down the highway or keeping one’s eyes on the road were sufficient reasons to suspect a person of driving while impaired, a substantial portion of the public would be subject each day to an invasion of their privacy. United States v. Lyons, 7 F.3d 973, 976 (10th Cir.1993), overruled on other grounds by United States v. Botero-Ospina, 71 F.3d 783, 786-87 (10th Cir.1995). As a final note, we find it curious that Carmichael did not conduct a sobriety field test or ask Estrada-Nava if he had been drinking when he stopped the car. This further convinces us that Carmichael did not harbor reasonable suspicion that Estrada-Nava was driving under the influence. See United States v. Gregory, 79 F.3d 973, 978 (10th Cir.1996) (concluding that where officer did not conduct a road sobriety test after stopping the defendant for briefly crossing into the right emergency shoulder lane, he did not have reasonable suspicion that the defendant was intoxicated); United States v. Ochoa, 4 F.Supp.2d 1007, 1012 (D.Kan.1998) (finding that a single drifting onto the shoulder did not justify stopping defendant on the basis of fatigue and that officer’s failure to conduct a sobriety test suggests he did not have reasonable suspicion defendant was intoxicated). In sum, we conclude Carmichael did not have reasonable suspicion to stop" }, { "docid": "23094765", "title": "", "text": "corroborated the report of erratic driving through his own independent observations. There was no corroboration of the alleged illegal activity in J.L. Id. . And, of course, Harvey’s identity was ascertained since he testified at the suppression hearing. . Harvey and Omland gave a more detailed description of the car to their MDOT dispatcher. The MDOT log introduced into evidence at the suppression hearing specifically noted that the Monte Carlo observed driving erratically was an older model and had the North Dakota license plate number \"ND 7575.” But Officer Schock was only informed by his Highway Patrol dispatcher that MDOT observed a black Monte Carlo with North Dakota plates. We think the report actually relayed to Officer Schock by the Highway Patrol dispatcher, while it omitted the license plate number of the Monte Carlo and that the Monte Carlo was an “older model,” was sufficiently detailed. After locating a black Monte Carlo near milepost 135, which is where the car should have been found, Officer Schock could be reasonably certain that the car he followed was, in fact, the car described in the dispatch. . Standing alone, Officer Schock's observations of the Monte Carlo weaving within its lane might not have supported the investigatory stop of Fernandez’s car. We recently declared an investigatory stop unconstitutional where the officer only observed the car for 35-45 seconds before stopping the driver, and the \"weave” observed by the officer was not pronounced. United States v. Colin, 314 F.3d 439, 445-46 (9th Cir.2002). Our decision in Colin expressly left open the possibility that \"pronounced weaving” or weaving for a “substantial distance” might give rise to a reasonable suspicion that the driver of the weaving car is intoxicated, thereby justifying an investigatory stop — even though the officer does not observe the driver commit a traffic infraction. Id. Regardless, the MDOT report and Fernandez's sitting close to the steering wheel make this case distinguishable from Colin. . This case is also distinguishable from State v. Lafferty, 291 Mont. 157, 967 P.2d 363 (1998). In that case, the Montana Supreme Court concluded that a dispatcher's report" }, { "docid": "23094753", "title": "", "text": "We do not hold that the MDOT report, standing alone, provided Officer Schock with reasonable suspicion to stop the car absent Officer Schock’s own corroborating observations. That question is not before us. When determining reasonable suspicion, courts must examine the totality of the circumstances. See, e.g., Arvizu, 534 U.S. at 273, 122 S.Ct. 744. Here, other factors in addition to the MDOT report must be considered in the reasonable suspicion calculus. After locating the black Monte Carlo described in the MDOT report, Officer Schock noticed that the driver was sitting very close to the steering wheel, a behavior that Schock knew was typical of impaired drivers. See id. at 277, 122 S.Ct. 744(explaining that due weight must be given “to the factual inferences drawn by the law enforcement officer”); Illinois v. Gates, 462 U.S. 213, 232,103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) (explaining that a court’s review of evidence “must be seen and weighed not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement”). Schock testified that a driver sitting very close to the steering wheel could indicate that the driver was impaired and trying to concentrate on the road or compensate for a loss of peripheral vision due to drugs or alcohol. Schock also observed Fernandez drift— rather appreciably as we can see on the videotape — to one side of his lane and then back to the other side. When following Fernandez, Schock drove over the same patch of road, which did have some ruts, but he did not perceive any ruts or wind that may have accounted for the Monte Carlo’s weaving since neither had any effect on Schock’s car. While weaving within one’s lane of travel is not against the law in Montana, Schock reasonably associated this type of driving as consistent with the behavior of an impaired driver. We are mindful of our circuit’s pre-Arvi-zu precedent that the dissent cites for the proposition that “movement within one’s own lane ... is not a sufficient ground on which to base reasonable suspicion.” But these cases are" }, { "docid": "23094768", "title": "", "text": "the driver appeared rigid and stiff in his posture; the children in the car artificially waved to the officer as if they were instructed; and the vehicle turned at an intersection to avoid a border checkpoint. Id. at 270-71, 122 S.Ct. 744. The Court conceded that these factors, taken alone, were \"susceptible of innocent explanation.” Id. at 277, 122 S.Ct. 744. But taken together, the Court held that these factors formed \"a particularized and objective basis for[the officer’s] stopping the vehicle, making the stop reasonable within the meaning of the Fourth Amendment.” Id. at 277-78, 122 S.Ct. 744. Watching a driver sit very close to his steering wheel and weave within his lane might not, standing alone, give rise to reasonable suspicion that the driver was impaired. See supra, note 6 (discussing our decision in United States v. Colin). But this type of behavior is highly relevant when, as in this case, there is also a reliable report of erratic driving. . Ultimately, the officers decided to stop the car because it had tinted windows. Id. at 1072. But tinted windows are only illegal in Montana for -those cars registered in Montana. Id. On appeal, the government did not argue that the officers were in any way justified in stopping the vehicle because of the tinted windows. Id. at 1073. . The MDOT dispatcher informed the Montana Highway Patrol dispatcher that \"one of our guys” observed the erratic driving. FERGUSON, Circuit Judge, dissenting. I respectfully dissent. Without ever announcing that it is doing so, the majority’s opinion effectively overrules a significant portion of our prior Fourth Amendment jurisprudence. The majority finds that an essentially anonymous tip of allegedly “erratic driving,” “corroborated” only by an officer’s observation of arguably innocent and certainly non-criminal behavior, is suf ficient to support a finding of reasonable suspicion. In coming to this conclusion, the majority systematically brushes aside our precedent and misstates the facts of this case. In particular, the majority (1) misconstrues our prior case law which requires that when a dispatch does not provide information about the factual underpinnings of a tip, the" }, { "docid": "23094740", "title": "", "text": "TALLMAN, Circuit Judge. We are asked to decide whether an officer had a reasonable suspicion that the driver of a car was impaired, justifying an investigatory traffic stop of that car, where: (1) the vehicle had been reported as driving erratically; (2) the officer who stopped the vehicle knew the source of the report; (3) the report described the vehicle in detail, noting the car’s color, make and model, and state license plate; (4) the report was made contemporaneously with the source’s observations of the erratic driving; (5) the officer discovered the car in the area where the report indicated that the car would likely be found; (6) the officer noticed that the driver was sitting very close to the steering wheel, a behavior the officer knew was typical of impaired drivers; and (7) the officer corroborated the report of erratic driving by observing the car weave within its lane. Given the totality of these circumstances, we hold that the district court correctly found, after an evidentiary hearing, the existence of a reasonable suspicion that the operator of the car was impaired and properly held that the investigatory stop of the vehicle was constitutional. I On the afternoon of September 18, 2000, Montana Department of Transportation (MDOT) employees Jay Harvey and Terry Omland were traveling eastbound on Interstate 94 outside Miles City, Montana. They stopped on the median strip of the divided freeway to pick up debris and then re-entered traffic. Harvey was accelerating their state maintenance truck to highway speed when he noticed a car approach in his rear-view mirror. The car caught Harvey’s attention because its left-turn signal light was blinking, but the car did not move to the left lane. Instead, the car straddled the center line of the two eastbound lanes. The car eventually passed Harvey and Omland’s truck while traveling in the right lane. After it passed, the driver signaled and moved over into the left lane. After it did so, Harvey and Omland noticed the car cross the yellow line that ran along the median. The car passed two other vehicles and then slowly-drifted" }, { "docid": "23094782", "title": "", "text": "driving.” Maj. Op. at 1120. Even if Officer Schock correctly confirmed the presence of a particular black Monte Carlo on a highway in Montana, however, this does not give rise to reasonable suspicion. At the risk of being repetitive, reasonable suspicion requires that a tip be “reliable in its assertion of illegality, not just in its tendency to identify a determinate person.” J.L., 529 U.S. at 271, 120 S.Ct. 1375. Officer Schock was required to corroborate the allegation of “erratic driving,” the only information that potentially indicated the possibility of illegal activity. However, because minor movement within one’s own lane of traffic and sitting close to the steering wheel are simply not activities that, on their own, indicate criminal activity, it is simply untenable to suggest that they “corroborated” the erratic driving allegation. Almost precisely this issue was addressed in our recent opinion in United States v. Colin, in which we held unconstitutional a stop performed under almost identical circumstances. 314 F.3d 439, 446 (9th Cir.2002). In Colin, the officer observed the vehicle for 35-45 seconds, during which time the vehicle: drove within the speed limit and properly activated his turn signals before making lane changes. [The officer] thought [the driver] was ‘possibly” driving under the influence because the car’s wheels touched the fog line on the right side of the right lane for 10 seconds and then, about 5-10 second later, touched the yellow line of the far left of the left lane for another 10 seconds. 314 F.3d at 445. In coming to the conclusion that such conduct was not sufficient to constitute “pronounced weaving” or to justify a stop, the Colin court approvingly quoted the 10th Circuit, which noted that “if the failure to follow a perfect vector down the highway or keep one’s eyes on the road were sufficient reasons to suspect a person of driving while impaired, a substantial portion of the public would be subject each day to an invasion of their privacy.” United States v. Lyons, 7 F.3d 973, 976 (10th Cir.1993), as quoted in 314 F.3d at 446. In the instant case," }, { "docid": "23094754", "title": "", "text": "testified that a driver sitting very close to the steering wheel could indicate that the driver was impaired and trying to concentrate on the road or compensate for a loss of peripheral vision due to drugs or alcohol. Schock also observed Fernandez drift— rather appreciably as we can see on the videotape — to one side of his lane and then back to the other side. When following Fernandez, Schock drove over the same patch of road, which did have some ruts, but he did not perceive any ruts or wind that may have accounted for the Monte Carlo’s weaving since neither had any effect on Schock’s car. While weaving within one’s lane of travel is not against the law in Montana, Schock reasonably associated this type of driving as consistent with the behavior of an impaired driver. We are mindful of our circuit’s pre-Arvi-zu precedent that the dissent cites for the proposition that “movement within one’s own lane ... is not a sufficient ground on which to base reasonable suspicion.” But these cases are distinguishable from the case before us. Each of these cases dealt with border patrol agents who suspected that a vehicle was transporting illegal immigrants or drugs. See United States v. Jimenez-Medina, 173 F.3d 752 (9th Cir. 1999) (suspected illegal immigrant smuggling); United States v. Rodriguez, 976 F.2d 592 (9th Cir.1992) (same); United States v. Hernandez-Alvarado, 891 F.2d 1414 (9th Cir.1989) (suspected drug smuggling). It is perfectly understandable that swerving within one’s own lane of traffic would not support reasonable suspicion of smuggling, which has nothing to do with impairment, but that it would support Officer Schock’s reasonable suspicion that Fernandez was operating a vehicle under the influence of drugs or alcohol. As a result of the MDOT report of erratic driving coupled with his own independent observations, Officer Schock had a “particularized and objective basis” to suspect that the driver of the Monte Carlo was impaired. The investigatory stop of Fernandez’s vehicle was therefore constitutional. C Contrary to the dissent’s suggestion, our pre-Arvizu decisions in United States v. Morales and United States v. Thomas do" } ]

[ { "docid": "17848411", "title": "", "text": "of this chapter shall not be subject to judicial review. When an action for judicial review of a rule is instituted, any regulatory flexibility analysis for such rule shall constitute part of the whole record of agency action in connection with the review. 5 U.S.C. § 611(a), (b). The question of judicial review under the Regulatory Flexibility Act has not been considered in this Circuit. The District of Columbia Circuit, however, has analyzed the Act’s clear wording and its legislative history and concluded that although an agency’s compliance with the Act itself is not subject to judicial review, the contents of the analysis should be considered in determining whether a rule is reasonable. See Thompson v. Clark, 741 F.2d 401, 405 (D.C.Cir.1984); Small Refiner Lead Phase-Down Task Force v. EPA, 705 F.2d 506, 539 (D.C.Cir.1983). We adopt this conclusion. As pointed out in Thompson v. Clark, such judicial review does not mean that an agency may “ignore with impunity the effect of its rules upon small entities;” the agency’s decision may still be overturned because of an analysis so defective as to render its final decision unreasonable, or, in the absence of any analysis, because of a failure to respond to public comment concerning the rule’s impact on small entities. 741 F.2d at 408. In this case, the EPA performed its regulatory flexibility analysis in the context of its overall rulemaking analysis. As we have noted earlier in this opinion, the Agency’s disapproval of the Michigan plan for Part D purposes was reasonable and the imposition of the construction moratorium was then required by law. The fact that the EPA did not consider any significant alternatives to the construction ban is certainly not unreasonable under these circumstances. The EPA’s failure to certify the proposed rule under section 605(b) as having no significant impact on small entities or, in the alternative, to prepare a complete initial regulatory flexibility analysis under section 603 does not affect the reasonableness of the final action. We have carefully considered all of Michigan’s arguments not specifically addressed in this opinion. We have found that these arguments" } ]

[ { "docid": "14202919", "title": "", "text": "from inactive mines because abandoned mines are covered under the Abandoned Mine Lands program of SMCRA. The comment at issue did not in fact squarely raise this point. Moreover, as explained above, the AML program clearly is not an exhaustive mechanism for addressing the problems of polluted runoff from abandoned mines. Thus, EPA’s failure to address this issue directly in its final rule did not violate the EPA. H. Regulatory Flexibility Analysis In the proposed and final storm water rules, EPA certified, pursuant to the Regulatory Flexibility Act (“RFA”), 5 U.S.C. § 601-612 (1988), that the rule would not have “a significant economic impact on a substantial number of small entities.” Id. § 605; 55 Fed.Reg. at 48,061; 53 Fed.Reg. at 49,464. Certification releases the agency from its obligation to conduct a “regulatory flexibility analysis” in conjunction with its rulemaking. 5 U.S.C.A. § 605(b). AMC contends that EPA’s certification was mistaken with respect to the regulation of inactive mines, and urges us to invalidate the regulation as arbitrary and capricious. We cannot do so. We lack the authority to strike down the storm water rule on the basis of a flawed certification. The RFA expressly prohibits judicial review of EPA’s certification: (a) Except as otherwise provided in subsection (b), any determination by an agency concerning the applicability of any of the provisions of this chapter to any action of the agency shall not be subject to judicial review. (b) Any regulatory flexibility analysis prepared under sections 603 and 604 of this title and the compliance or non-compliance of the agency with the provisions of this chapter shall not be subject to judicial review. When an action for judicial review of a rule is instituted, any regulatory flexibility analysis for such rule shall constitute part of the whole record of agency action in connection with the review. 5 U.S.C. § 611. EPA’s certification pursuant to 5 U.S.C. § 605(b) that no regulatory flexibility analysis was necessary constitutes a “determination by an agency concerning the applicability of any of the provisions of” the RFA, and is therefore unreviewable. 5 U.S.C. § 611(a);" }, { "docid": "16886562", "title": "", "text": "proceed without prior notice and public comment of the interim rule. VI. REGULATORY FLEXIBILITY ACT ANALYSIS Plaintiffs next argue that the FNS failed to conduct an adequate analysis under the Regulatory Flexibility Act (“RFA”) in promulgating the interim rule. The RFA requires agencies to consider the effect that their regulation will have on small entities, analyze effective alternatives that may minimize a regulation’s impact on such entities, and make their analyses available for public comment. 5 U.S.C. §§ 601-604. Defendant argues that because the RFA requires an analysis of the impact on directly regulated businesses, it is not applicable here. The RFA does not require that an agency assess the impact of a rule on all small entities that may be affected by the rule, but only those directly regulated. The RFA was enacted by Congress “to encourage administrative agencies to consider the potential impact of nascent federal regulations on small businesses.” Associated Fisheries of Maine, Inc. v. Daley, 127 F.3d 104, 111 (1st Cir.1997). Under the RFA, an agency describes the effect of the proposed rule on small businesses and discusses alternatives that might minimize adverse economic consequences. Id. Judicial review of agency compliance with the RFA is available. Alenco Communications Inc., v. Fed. Communications Comm’n, 201 F.3d 608, 625 (5th Cir.2000). Agencies need only engage in a “reasonable” and “good faith effort” to carry out the mandate of the RFA. Id. Further, the RFA is a purely procedural, as opposed to a substantive, mandate; RFA “requires nothing more than that the agency file a final regulatory flexibility analysis demonstrating a reasonable, good-faith effort to carry out the RFA’s mandate.” United States Cellular Corp. v. Fed. Communications Comm’n, 254 F.3d 78, 88 (D.C.Cir.2001). Moreover, “failure to comply with the RFA may be, but does not have to be, grounds for overturning a rule.” Cement Kiln Recycling Coalition v. EPA, 255 F.3d 855, 868 (D.C.Cir.2001). A regulatory flexibility analysis, however, is not required if the agency “certifies that the rule will not, if promulgated, have a significant economic impact on a substantial number of small entities.” 5 U.S.C. § 605(b)." }, { "docid": "12957574", "title": "", "text": "certify is not subject to judicial review. 5 U.S.C. § 611; see also Thompson v. Clark, 741 F.2d 401, 404-08 (D.C.Cir.1984); Michigan v. Thomas, 805 F.2d 176, 188 (6th Cir.1986). This does not mean that an agency may disregard completely the RFA’s requirements, or “ignore with impunity the effect of its rules upon small entities.” Thompson v. Clark, 741 F.2d at 408. “[T]he agency’s decision may still be overturned because of an analysis so defective as to render its final decision unreasonable, or, in the absence of any analysis, because of a failure to respond to public comment concerning the rule’s impact on small entities.” Michigan v. Thomas, 805 F.2d at 188 (citing Thompson v. Clark, 741 F.2d at 408). Such is not the case here. The RTC’s certification was proper. Moreover, the RTC carefully addressed the sole public comment that challenged its certification. 55 Fed.Reg. 22,323, 22,327 (1990). Therefore, we cannot say that certification under the RFA rendered the Override Regulation unreasonable. For the foregoing reasons, we hold that FIRREA authorizes the RTC to override state branch banking laws that would preclude banks that obtain failed or failing thrifts through emergency acquisitions to retain and operate the thrifts’ offices as bank branches. To the extent that FIR-REA is either ambiguous or silent on this question, we uphold the RTC’s interpretation, formalized in the Override Regulation, as a reasonable construction of the statute. Furthermore, the Override Regulation violates neither the McFadden Act, nor the Regulatory Flexibility Act. Accordingly, we REVERSE the judgment of the Colorado district court, and AFFIRM the judgment of the New Mexico district court. . Designating the thrifts' offices as \"branches\" fails to account for the thrifts' main offices. We uniformly refer to a thrift's main and branch offices as its \"offices.\" . Where applicable, we uniformly cite to the U.S.C. sections codifying FIRREA, rather than to the Act itself. . New Mexico essentially limits bank branching to within the same county. N.M.Stat-Ann. § 58-5-3 (1986 Repl.). Branching into an adjoining county or within 100 miles is permissible only if no competing banks are located in the" }, { "docid": "603781", "title": "", "text": "handlers — not producers. They argue that, because White Eagle is an association of producers, not handlers, White Eagle lacks standing to challenge the agency’s compliance with the RFA. We have not had occasion to consider who may bring a challenge to a regulatory flexibility analysis or certification under the RFA. The Court of Appeals for the District of Columbia, however, has developed a body of case law in this area. Our colleagues in that circuit first considered the issue in Mid-Tex Electric Co-op., Inc. v. Federal Energy Regulatory Commission, 773 F.2d 327 (D.C.Cir.1985). At issue in Mid-Tex Electric was a proposed rule that would have allowed electric utilities to include in their rate bases certain capital-improvement costs for projects currently under construction. With respect to the proposed rule, the Commission certified that its proposed rule would not have a significant impact on a substantial number of small entities because “virtually all of the utilities it regulate[d] d[id] not fall within the meaning of the term ‘small entities’ as defined in the RFA.” Id. at 341. Wholesale customers of the utilities challenged this certification; they claimed that the Commission, in promulgating the rule, was required “to consider[ ] the impact of the proposed rule on wholesale and retail customers of the jurisdictional entities subject to rate regulation by the Commission.” Id. (internal quotation marks and citations omitted). The Commission, however, maintained that it was not required to consider the effect of the rule on “non-jurisdictional entities whose rates are not subject to the rule.” Id. The court of appeals agreed with the Commission. It observed that Congress was prompted to pass the RFA by the “high cost to small entities of compliance with uniform regulations.” Id. at 342. The remedy Congress fashioned in response was “careful consideration of those costs in [a] regulatory flexibility analyses],” an analysis, the court observed, which was “limited to small entities subject to the proposed regulation.” Id. The court further explained: We find a clear indication of this limitation in section 603 of the statute, which specifies the contents of initial regulatory flexibility analysis. These" }, { "docid": "12957572", "title": "", "text": "the proposed rule will affect small entities, consider alternatives that would “minimize any significant economic impact of the rule on [such] entities,” and explain “why each one of such alternatives was rejected.” 5 U.S.C. § 604(a)(3). See also 5 U.S.C. § 603(a), (c). The agency does not, however, have to prepare a flexibility analysis “if the head of the agency certifies that the rule will not, if promulgated, have a significant economic impact on a substantial number of small entities.” 5 U.S.C. § 605(b). If the agency certifies, the RFA directs the agency to publish the certification in the Federal Register with the general notice of proposed rulemaking or at the time the final rule is published. The agency must also publish a succinct statement explaining the reasons for the certification. Id. The States argue that the RTC violated the RFA in certifying that the Override Regulation would not significantly affect a substantial number of small entities. They assert that the RTC had no basis for certification, and failed to publish a succinct statement explaining its rationale. We disagree. First, the RTC did publish a statement explaining its certification. In its notice of a final rule, the RTC explained: The basis for the RTC’s certification is its determination that the rule will not impose compliance requirements on depository institutions of any size. It imposes no performance standards, no fees, no reporting or recordkeeping criteria, nor any other type of restriction or requirement with which depository institutions must comply. Thus, it does not have the type of economic impact addressed by the RFA. 55 Fed.Reg. 22,323, 22,327 (1990) (to be codified in 12 C.F.R. § 1611.1). The statement presents a valid basis for certification. The RFA is meant to address “the high cost to small entities of compliance with uniform regulations.\" Mid-Tex Elec. Co-op., Inc. v. F.E.R.C, 773 F.2d 327, 342 (D.C.Cir.1985) (analyzing 5 U.S.C. § 605). For purposes of flexibility analysis, “the relevant ‘economic impact’ [i]s the impact of compliance.\" Id. The Override Regulation imposes no regulatory compliance requirements. Second, by the terms of the RFA, an agency’s decision to" }, { "docid": "603779", "title": "", "text": "adopting the amendments to the Mideast Milk Marketing Order, violated the RFA. The RFA was adopted to “encourage administrative agencies to consider the potential impact of nascent federal regulations on small business.” Associated Fisheries of Maine, Inc. v. Daley, 127 F.3d 104, 111 (1st Cir.1997). Under the RFA, an agency that publishes a notice of proposed rulemaking must prepare an initial regulatory flexibility analysis describing the effect of the proposed rule on small businesses and discussing alternatives that might minimize adverse economic consequences. See 5 U.S.C. § 603. The initial analysis must include: (1) a description of the reasons for the proposed action; (2) a succinct statement of the proposed rule’s objectives and legal basis; (3) a description of, and the number of, small entities “to which the proposed rule will apply”; and (4) a description of the “compliance requirements” of the proposed rule, “including an estimate of the classes of small entities which will be subject to the requirement.” Id. § 603(b)(1)-(4). When promulgating a final rule, the agency not only must address the regulatory flexibility comments submitted by the public, it also must include “a description for the steps the agency has taken to minimize the significant economic impact on small entities consistent with the state objectives of applicable statutes.” Id. § 604(a). However, Section 605 provides that this analysis need not be performed “if the head of the agency certifies that the rule will not, if promulgated, have a significant economic impact on a substantial number of small entities”; if an agency head makes this certification, however, he also must “provid[e] the factual basis for such certification.” 5 U.S.C. § 605. White Eagle contends that the Government violated the RFA by failing to undertake a regulatory flexibility analysis and by employing the certification option without sufficient factual support. In response, the Government and intervenors claim that White Eagle cannot challenge the agency’s compliance with the RFA because White Eagle’s conduct is not the subject of the Mideast Marketing Order. They submit that the Order, including the modified diversion limit at issue here, regulates the conduct only of" }, { "docid": "9898939", "title": "", "text": "for any final rule. The Act exempts agencies from this requirement if they certify that “the rule will not, if promulgated, have a significant economic impact on a substantial number of small entities.” 5 U.S.C. § 605(a)-(b). Invoking this exemption, FERC certified that both Order 888 (open access) and Order 889 (OASIS and standard of conduct rules) would have no such impact. Order 888, ¶ 31,036 at 31,896; Order 889, ¶ 31,035 at 31,628. The TDU petitioners claim that FERC failed adequately to consider the impact of Orders 888 and 889 on nonjurisdictional entities that may have to provide open access transmission and file open access tariffs under the orders’ reciprocity provisions. In contrast to jurisdictional utilities, several nonjurisdictional utilities are classified as small entities. According to TDU petitioners, the orders impose a significant economic burden on them, requiring compliance activities as well as alterations to their operations. Although the RFA’s judicial review provision was amended in 1996, see Small Business Regulatory Enforcement Fairness Act, Pub.L. No. 104-121, tit. II, 110 Stat. 857 (1996), the TDU petitioners and FERC agree that the pre-amendment version of the RFA applies in this case. Under that version, our review is quite narrow. Section 611(b) provided that “[a]ny regulatory flexibility analysis ... and the .compliance or noncompliance of the agency with the provisions of this chapter shall not be subject to judicial review. When an action for judicial review of a rule is instituted, any regulatory flexibility analysis for such rule shall constitute part of the whole record of agency action in connection with the review.” 5 U.S.C. § 611(b) (1994). We have interpreted this language to mean that “ ‘a reviewing court should consider the regulatory flexibility analysis as part of its overall judgment whether a rule is reasonable and may, in an appropriate case, strike down a rule because of a defect in the flexibility analysis.’ We emphasize[ ], however, that ‘a major error in the regulatory flexibility analysis may be, but does not have to be, grounds for overturning a rule.’” Mid-Tex Elec. Co-op., Inc. v. FERC, 773 F.2d 327, 340-41" }, { "docid": "22447696", "title": "", "text": "(or a plan amendment) promulgated pursuant to the Magnuson Act must be consistent with the RFA. See 16 U.S.C. §§ 1854(a)(1)(B), 1855(e). AFM next charges that the Secretary failed to meet this obligation when promulgating Amendment 7. Some background may prove helpful. Congress enacted the RFA to encourage administrative agencies to consider the potential impact of nascent federal regulations on small businesses. See Pub.L. No. 96-354, § 2(b), 94 Stat. 1164, 1165 (1980) (statement of purpose); see generally Paul R. Verkuil, A Critical Guide to the Regulatory Flexibility Act, 1982 Duke L.J. 213, 215-26 (1982). Under the RFA, an agency that publishes a notice of proposed rulemaking must prepare an initial regulatory flexibility analysis (IRFA) describing the effect of the proposed rule on small businesses and discussing alternatives that might minimize adverse economic consequences. See 5 U.S.C. § 603. When promulgating a final rule,' the agency not only must prepare a final regulatory flexibility analysis (FRFA) but also must make copies available to members of the public and publish directions for obtaining such copies. See id. § 604. The Secretary promulgated Amendment 7 on May 31, 1996. At that time, the law expressly prohibited judicial review of agency compliance with sections 603 and 604. See id. § 611; see also Thompson v. Clark, 741 F.2d 401, 404-05 (D.C.Cir.1984). Approximately two months earlier, however, Congress had amended the RFA by enacting the Small Business Regulatory Enforcement Fairness Act (SBREFA), Pub.L. No. 104-121, tit. II, 110 Stat. 857, 864-68 (1996). The 1996 Amendments reshaped the contours of the mandated flexibility analysis and provided for judicial review of the agency’s product. See id. §§ 241, 242, 110 Stat. at 864-66 (codified as amended at 5 U.S.C. §§ 604(a), 611(a)(1) (Supp.1997)). Because Congress delayed the effective date of these amendments until ninety days after passage, see id. § 245, 110 Stat. at 868, they were not in effect when the Secretary promulgated Amendment 7. A. Judicial Review. The threshold question is whether we have jurisdiction to review AFM’s claim under the RFA. This question depends on whether the judicial review provision contained in the" }, { "docid": "21137145", "title": "", "text": "RFA required the FERC to consider economic effects not only upon regulated industries but also upon the small entities that are their wholesale customers, even though the customers were not directly regulated by the FERC. We rejected that argument, finding a “clear indication” in the language of § 603 that the RFA is “limited to small entities subject to the proposed regulation.” Mid-Tex, 773 F.2d at 342; see also Motor & Equip. Mfrs. Ass’n, 142 F.3d at 467 n. 18 (“The RFA itself distinguishes between small entities subject to an agency rule, to which its requirements apply, and those not subject to the rule, to which the requirements do not apply.”); United Distribution Cos. v. FERC, 88 F.3d 1105, 1170 (1996) (regulatory flexibility analysis provision applies only to “small entities that are subject to the requirements of the rule”) (emphasis in original). That the Clean Air Act requires the States to submit SIPs that will achieve compliance with the NAAQS does not, in view of the States’ nearly complete discretion to determine which entities will bear the burdens of a revised NAAQS, make such small entities as the SIPs may regulate any more subject to the EPA’s regulation than were the wholesalers in Mid-Tex subject to regulation by the FERC. Finally, the Small Business Petitioners suggest that the Congress in enacting the SBREFA overruled our prior interpretation of the RFA in Mid-Tex and its progeny. The SBREFA made a number of changes in the RFA, but it did not change anything in § 603 upon which we relied in Mid-Tex. And although the Congress made a slight modification in § 605(b), we do not understand it to alter our analysis in Mid-Tex. Prior to 1996, § 605(b) required an agency to provide “a succinct statement explaining the reasons” for its certification that the promulgated rule would not have a significant economic impact upon small entities. That section now requires “a statement providing the factual basis for such certification.” Our decision in Mid-Tex contemplates that an agency may justify its certification under the RFA upon the “factual basis” that the rule" }, { "docid": "9360730", "title": "", "text": "public comments in response to the initial regulatory flexibility analysis, a summary of the assessment of the agency of such issues,” and “the steps the agency has taken to minimize the significant economic impact on small entities.” Id. § 604(a). However, these analyses are not required if the agency “certifies that the rule will not, if promulgated, have a significant economic impact on a substantial number of small entities.” Id. § 605(b). In the instant case, EPA certified that the pro posed and final rule will not have a significant economic impact on a substantial number of small entities and, accordingly, did not perform any regulatory flexibility analysis. See Final Rule, 63 Fed.Reg. at 57,478; Proposed Rule, 62 Fed.Reg. at 60,375. RFA petitioners contend that EPA’s certification was improper and in violation of the RFA. We disagree. The court has consistently held that the RFA imposes “no obligation to conduct a small entity impact analysis of effects on entities which it does not regulate.” Motor & Equip. Mfrs. Ass’n. v. Nichols, 142 F.3d 449, 467 (D.C.Cir.1998) (quoting United Distribution Cos. v. FERC, 88 F.3d 1105, 1170 (D.C.Cir.1996)); see also American Trucking, 175 F.3d at 1044. Therefore, the key issue in evaluating EPA’s § 605(b) certification is whether the NOx SIP call “regulates” small entities. EPA based its certification on its view that the NOx SIP call “would not establish requirements applicable to small entities” because “it would require States to develop, adopt, and submit SIP revisions that would achieve the necessary NOx reductions and would leave to the States the task of determining how to obtain those reductions, including which entities to regulate.” Final Rule, 63 Fed.Reg. at 57,478. We agree with EPA’s statement that the SIP call does not directly regulate individual sources of emissions. The instant case is thus analogous to American Trucking, which upheld EPA’s certification under § 605(b) because the revised NAAQS at issue “regulate small entities only indirectly — that is, insofar as they affect the planning decision of the States.” American Trucking, 175 F.3d at 1044. Therefore, we conclude that EPA’s certification under §" }, { "docid": "12957573", "title": "", "text": "its rationale. We disagree. First, the RTC did publish a statement explaining its certification. In its notice of a final rule, the RTC explained: The basis for the RTC’s certification is its determination that the rule will not impose compliance requirements on depository institutions of any size. It imposes no performance standards, no fees, no reporting or recordkeeping criteria, nor any other type of restriction or requirement with which depository institutions must comply. Thus, it does not have the type of economic impact addressed by the RFA. 55 Fed.Reg. 22,323, 22,327 (1990) (to be codified in 12 C.F.R. § 1611.1). The statement presents a valid basis for certification. The RFA is meant to address “the high cost to small entities of compliance with uniform regulations.\" Mid-Tex Elec. Co-op., Inc. v. F.E.R.C, 773 F.2d 327, 342 (D.C.Cir.1985) (analyzing 5 U.S.C. § 605). For purposes of flexibility analysis, “the relevant ‘economic impact’ [i]s the impact of compliance.\" Id. The Override Regulation imposes no regulatory compliance requirements. Second, by the terms of the RFA, an agency’s decision to certify is not subject to judicial review. 5 U.S.C. § 611; see also Thompson v. Clark, 741 F.2d 401, 404-08 (D.C.Cir.1984); Michigan v. Thomas, 805 F.2d 176, 188 (6th Cir.1986). This does not mean that an agency may disregard completely the RFA’s requirements, or “ignore with impunity the effect of its rules upon small entities.” Thompson v. Clark, 741 F.2d at 408. “[T]he agency’s decision may still be overturned because of an analysis so defective as to render its final decision unreasonable, or, in the absence of any analysis, because of a failure to respond to public comment concerning the rule’s impact on small entities.” Michigan v. Thomas, 805 F.2d at 188 (citing Thompson v. Clark, 741 F.2d at 408). Such is not the case here. The RTC’s certification was proper. Moreover, the RTC carefully addressed the sole public comment that challenged its certification. 55 Fed.Reg. 22,323, 22,327 (1990). Therefore, we cannot say that certification under the RFA rendered the Override Regulation unreasonable. For the foregoing reasons, we hold that FIRREA authorizes the RTC to" }, { "docid": "16886563", "title": "", "text": "proposed rule on small businesses and discusses alternatives that might minimize adverse economic consequences. Id. Judicial review of agency compliance with the RFA is available. Alenco Communications Inc., v. Fed. Communications Comm’n, 201 F.3d 608, 625 (5th Cir.2000). Agencies need only engage in a “reasonable” and “good faith effort” to carry out the mandate of the RFA. Id. Further, the RFA is a purely procedural, as opposed to a substantive, mandate; RFA “requires nothing more than that the agency file a final regulatory flexibility analysis demonstrating a reasonable, good-faith effort to carry out the RFA’s mandate.” United States Cellular Corp. v. Fed. Communications Comm’n, 254 F.3d 78, 88 (D.C.Cir.2001). Moreover, “failure to comply with the RFA may be, but does not have to be, grounds for overturning a rule.” Cement Kiln Recycling Coalition v. EPA, 255 F.3d 855, 868 (D.C.Cir.2001). A regulatory flexibility analysis, however, is not required if the agency “certifies that the rule will not, if promulgated, have a significant economic impact on a substantial number of small entities.” 5 U.S.C. § 605(b). The RFA “impose[es] no obligation upon an agency to conduct a small entity impact analysis of effects on entities which it does not regulate.” American Trucking Ass’n, Inc. v. U.S. EPA, 175 F.3d 1027, 1044 (D.C.Cir.1999). See also Cement Kiln, 255 F.3d at 869 (“this court has consistently rejected the contention that the RFA applies to small businesses indirectly affected by the regulation of other entities.... Congress did not intend to require that every agency consider every indirect effect that any regulation might have on small businesses in any stratum of the national economy.”). The FNS certified that an RFA analysis was unnecessary because the interim rule would “not have a significant economic impact on a substantial number of small entities.” 70 Fed.Reg. at 71709. The FNS certification satisfies the standards set out in § 605(b) of the RFA. The FNS published its certification in the Federal Register and provided a factual basis for its certification. Id. Further, as in American Trucking, the entities directly regulated by the interim rule are state agencies. The state" }, { "docid": "21137140", "title": "", "text": "entities.” Id. § 604(a)(5). According to the petitioners, if the EPA had complied with the RFA, it would likely have promulgated less stringent PM and ozone NAAQS than those actually chosen, which would have reduced the burden upon small entities. A regulatory flexibility analysis is not required, however, if the agency “certifies that the rule will not, if promulgated, have a significant economic impact on a substantial number of small entities.” Id. § 605(b). Further, the SBREFA made no change in the requirement that a regulatory flexibility analysis conducted pursuant to the RFA include estimates of “the number of small entities to which the proposed rule will apply” and of “the classes of small entities which will be subject to the requirement.” 5 U.S.C. § 603(b)(3)-(4). We have consistently interpreted the RFA, based upon these sections, to impose no obligation upon an agency “to conduct a small entity impact analysis of effects on entities which it does not regulate.” Motor & Equip. Mfrs. Ass’n v. Nichols, 142 F.3d 449, 467 & n. 18 (1998). The EPA certified that its revised NAAQS will “not have a significant economic impact on small entities within the meaning of the RFA.” PM Final Rule, 62 Fed.Reg. at 38,702/2; Ozone Final Rule, 62 Fed.Reg. at 38,887/2-3. According to the EPA, the NAAQS themselves impose no regulations upon small entities. Instead, the several States regulate small entities through the state implementation plans (SIPs) that they are required by the Clean Air Act to develop. See 42 U.S.C. § 7410. Because the NAAQS therefore regulate small entities only indirectly — that is, insofar as they affect the planning decisions of the States — the EPA concluded that small entities are not “subject to the proposed regulation.” See Mid-Tex Elec. Coop., Inc. v. FERC, 773 F.2d 327, 342 (D.C.Cir.1985); see also id. at 343 (“Congress did not intend to require that every agency consider every indirect effect that any regulation might have on small businesses in any stratum of the national economy.”). The EPA’s description of the relationship between NAAQS, SIPs, and small entities strikes us as incontestable." }, { "docid": "603780", "title": "", "text": "regulatory flexibility comments submitted by the public, it also must include “a description for the steps the agency has taken to minimize the significant economic impact on small entities consistent with the state objectives of applicable statutes.” Id. § 604(a). However, Section 605 provides that this analysis need not be performed “if the head of the agency certifies that the rule will not, if promulgated, have a significant economic impact on a substantial number of small entities”; if an agency head makes this certification, however, he also must “provid[e] the factual basis for such certification.” 5 U.S.C. § 605. White Eagle contends that the Government violated the RFA by failing to undertake a regulatory flexibility analysis and by employing the certification option without sufficient factual support. In response, the Government and intervenors claim that White Eagle cannot challenge the agency’s compliance with the RFA because White Eagle’s conduct is not the subject of the Mideast Marketing Order. They submit that the Order, including the modified diversion limit at issue here, regulates the conduct only of handlers — not producers. They argue that, because White Eagle is an association of producers, not handlers, White Eagle lacks standing to challenge the agency’s compliance with the RFA. We have not had occasion to consider who may bring a challenge to a regulatory flexibility analysis or certification under the RFA. The Court of Appeals for the District of Columbia, however, has developed a body of case law in this area. Our colleagues in that circuit first considered the issue in Mid-Tex Electric Co-op., Inc. v. Federal Energy Regulatory Commission, 773 F.2d 327 (D.C.Cir.1985). At issue in Mid-Tex Electric was a proposed rule that would have allowed electric utilities to include in their rate bases certain capital-improvement costs for projects currently under construction. With respect to the proposed rule, the Commission certified that its proposed rule would not have a significant impact on a substantial number of small entities because “virtually all of the utilities it regulate[d] d[id] not fall within the meaning of the term ‘small entities’ as defined in the RFA.” Id. at" }, { "docid": "14202926", "title": "", "text": "an NPDES storm water permit by September 30, 1991 for group applicants, and by November 18, 1991 for individual applicants. 55 Fed.Reg. at 48,071-72; 56 Fed. Reg. at 12,098. Compliance with the terms of any permit issued pursuant to the application will be required no later than three years after the date of issuance. CWA § 402(p)(4)(A), 33 U.S.C. § 1342(p)(4)(A). Thus, only future discharges will be subject to NPDES requirements as a result of EPA’s rule. . A final regulatory flexibility analysis must contain a statement of the need for and objectives of the rule, a discussion of the issues raised by public comments on the initial regulatory flexibility analysis, and an analysis of significant alternatives that would minimize any significant economic impact of the rule on small entities. 5 U.S.C. § 604(a). . In arguing that we have the authority to review EPA’s certification, AMC misreads the RFA. The RFA provides that if an agency prepares a regulatory flexibility analysis, the analysis becomes part of the record of agency action and should be considered in assessing the validity of the underlying rule. 5 U.S.C. § 611(b); Thompson, 741 F.2d at 405; Small Refiner, 705 F.2d at 537. In the present case, since EPA certified that it need not conduct a regulatory flexibility analysis, this provision does not apply-" }, { "docid": "6483875", "title": "", "text": "§ 605(b). “[I]n an appropriate case, [a court may] strike down a rule because of a defect in the flexibility analysis.” Small Refiner Lead Phase-Down Task Force v. EPA, 705 F.2d 506, 538 (D.C.Cir.1983). This is not an appropriate case. There is nothing to indicate any defect in EPA’s compliance with the statute. EPA concluded when it promulgated its final rule that, “[t]his rule will not have a significant adverse economic impact on a substantial number of small businesses” and, therefore, did not conduct a regulatory flexibility analysis on those entities. 61 Fed.Reg. at 45,902. The RFA does not contemplate an analysis in such situations. See 5 U.S.C. § 605(b). While EPA only considered whether its deemed-to-comply rule would have “a substantial impact” on “large and small volume automobile manufacturers,” id., it was not obliged to conduct a regulatory flexibility analysis for any other business, including the businesses represented by petitioners. An agency is under “no obligation to conduct a small entity impact analysis of effects on entities which it does not regulate.” United Distribution Cos. v. FERC, 88 F.3d 1105, 1170 (D.C.Cir.1996); see also Mid-Tex Elec. Co-op, Inc. v. FERC, 773 F.2d 327, 342 (D.C.Cir.1985). Because the deemed-to-comply rule did not subject any aftermarket businesses to regulation, EPA was not required to conduct a flexibility analysis as to small aftermarket businesses. It was only obliged to consider the impact of the rule on small automobile manufacturers subject to the rule, and it met that obligation. Second, petitioners contend that EPA failed to comply with section 317(c)(3) of the Clean Air Act, which requires the agency to conduct an analysis of “the effects on competition of the standard or regulation with respect to small business.” CAA § 317(c)(3), 42 U.S.C. § 7617(c)(3) (1988). Section 317 also provides, however, that “[n]othing in this section shall be construed ... to authorize or require any judicial review of any such standard or regulation, or any stay or injunction of the proposal, promulgation, or effectiveness of such standard or regulation on the basis of failure to comply with this section.” CAA § 317(e)(3), 42" }, { "docid": "8649743", "title": "", "text": "deficient because it mentions neither the number of small entities that the EPA believes the rule will affect, nor the number of small entities that the EPA believes to be “substantial.” We hold that the EPA’s statement is sufficient to satisfy the requirements of § 605(b). Directly applicable to this inquiry is Colorado State Banking Bd. v. Resolution Trust Corp., 926 F.2d 931 (10th Cir.1991). In that case, the Resolution Trust Corporation (“RTC”) adopted a rule that would allow banks to operate acquired insolvent thrifts as bank branches, notwithstanding Colorado and New Mexico laws that prohibited such operation. These two states contended that the RTC’s adoption of the rule did not satisfy the § 605(b) criteria for exemption from the obligation to undertake a regulatory flexibility analysis. In promulgating the rule, the RTC published the following certification statement: The basis for the RTC’s certification is its determination that the rule will not impose compliance requirements on depository institutions of any size. It imposed no performance standards, no fees, no reporting or recordkeeping criteria, nor any other type of restriction or requirement with which depository institutions must comply. Thus, it does not have the type of economic impact addressed by the EPA. Id. at 948. The Tenth Circuit held that the RTC’s brief statement “presented] a valid basis for certification” because it addressed the RFA’s concern for “the high cost to small entities of compliance with uniform regulations.” Id., quoting Mid-Tex Elec. Coop., Inc. v. FERC, 773 F.2d 327, 342 (D.C.Cir.1985). Similarly, the EPA’s statement in the instant case, which closely resembles the RTC’s statement in Colorado State Banking Board, adequately addressed this concern by noting that the denial of redesignation“does not affect any existing requirements applicable to small entities nor does it impose new requirements.” 61 Fed.Reg. 19,193,19,197. We also find no merit in the intervenor’s contention that the EPA erred when it concluded that the final rule would not affect the requirements applicable to small entities. The intervenor argues that the EPA’s disapproval of Pennsylvania’s redesignation request will soon result in a “bump up” of the Area’s nonattainment classification" }, { "docid": "8649744", "title": "", "text": "other type of restriction or requirement with which depository institutions must comply. Thus, it does not have the type of economic impact addressed by the EPA. Id. at 948. The Tenth Circuit held that the RTC’s brief statement “presented] a valid basis for certification” because it addressed the RFA’s concern for “the high cost to small entities of compliance with uniform regulations.” Id., quoting Mid-Tex Elec. Coop., Inc. v. FERC, 773 F.2d 327, 342 (D.C.Cir.1985). Similarly, the EPA’s statement in the instant case, which closely resembles the RTC’s statement in Colorado State Banking Board, adequately addressed this concern by noting that the denial of redesignation“does not affect any existing requirements applicable to small entities nor does it impose new requirements.” 61 Fed.Reg. 19,193,19,197. We also find no merit in the intervenor’s contention that the EPA erred when it concluded that the final rule would not affect the requirements applicable to small entities. The intervenor argues that the EPA’s disapproval of Pennsylvania’s redesignation request will soon result in a “bump up” of the Area’s nonattainment classification from “moderate” to “severe.” This will happen, the intervenor posits, because 42 U.S.C. § 7511(b)(2)(A) provides that an area that fails to attain the NAAQS by the applicable attainment date “shall be reclassified by operation of law” to the next higher classification. Since reclassification to “severe” status will impose stricter pollution control requirements upon small entities in the Area, the intervenor contends that the EPA erred when it certified that the denial of redesig nation would not alter the requirements applicable to small entities in the Area. Although the intervenor accurately describes the operation of § 7511(b)(2)(A), its argument is flawed because the more stringent pollution controls will result from the rulemaking process that will accompany the reclassification under § 7511(b)(2)(A), not the rulemaking process through which the EPA denied the redesignation request. When the time comes for § 7511(b)(2)(A) to reclassify the Area by operation of law, the EPA will provide notice and an opportunity for the public to comment, which will include the opportunity to comment on the requirements of the RFA. The" }, { "docid": "14202920", "title": "", "text": "lack the authority to strike down the storm water rule on the basis of a flawed certification. The RFA expressly prohibits judicial review of EPA’s certification: (a) Except as otherwise provided in subsection (b), any determination by an agency concerning the applicability of any of the provisions of this chapter to any action of the agency shall not be subject to judicial review. (b) Any regulatory flexibility analysis prepared under sections 603 and 604 of this title and the compliance or non-compliance of the agency with the provisions of this chapter shall not be subject to judicial review. When an action for judicial review of a rule is instituted, any regulatory flexibility analysis for such rule shall constitute part of the whole record of agency action in connection with the review. 5 U.S.C. § 611. EPA’s certification pursuant to 5 U.S.C. § 605(b) that no regulatory flexibility analysis was necessary constitutes a “determination by an agency concerning the applicability of any of the provisions of” the RFA, and is therefore unreviewable. 5 U.S.C. § 611(a); see Thompson v. Clark, 741 F.2d 401, 404-05 (D.C.Cir.1984); Small Refiner Lead Phase-Down Task Force v. U.S. E.P.A., 705 F.2d 506, 537 (D.C.Cir.1983). AMC also contends that, even if actual compliance with the RFA is not reviewable, EPA’s failure to understand the administrative and economic burdens created by its rule makes the rule arbitrary and capricious. AMC correctly points out that an administrative action is arbitrary and capricious if the agency has failed to consider relevant factors. See Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Ins., 463 U.S. 29, 43, 103 S.Ct. 2856, 2866, 77 L.Ed.2d 443 (1983). It does appear that EPA failed to understand the number of inactive mines covered by its rule. We decline to invalidate the rule on this ground, however, because we conclude that EPA was not required to consider economic and administrative impacts in formulating this rule. The CWA requires EPA to regulate, through the issuance of NPDES permits, all discharges of pollutants to the nation’s waters. CWA § 402; NRDC v. Costle, 568 F.2d 1369 (D.C.Cir.1977). In" }, { "docid": "14202918", "title": "", "text": "urging it not to regulate inactive mines. AMC argues that EPA failed to consider and respond to comments regarding the number of inactive mines. However, an agency need only respond to “significant” comments, i.e., those which raise relevant points and which, if adopted, would require a change in the agency’s proposed rule. Home Box Office v. FCC, 567 F.2d 9, 35 & n. 58 (D.C.Cir.), cert. denied, 434 U.S. 829, 98 S.Ct. 111, 54 L.Ed.2d 89 (1977). The failure to respond to comments is grounds for reversal only if it reveals that the agency’s decision was not based on consideration of the relevant factors. Thompson v. Clark, 741 F.2d 401, 409 (D.C.Cir.1984). The number of inactive mines was irrelevant to EPA’s rule; the relevant point was whether or not discharges from those mines were likely to be contaminated. None of the comments AMC complains were not answered suggested that inactive mines were not a significant source of pollution. AMC further contends that EPA failed to respond to comments suggesting that abandoned mines should be distinguished from inactive mines because abandoned mines are covered under the Abandoned Mine Lands program of SMCRA. The comment at issue did not in fact squarely raise this point. Moreover, as explained above, the AML program clearly is not an exhaustive mechanism for addressing the problems of polluted runoff from abandoned mines. Thus, EPA’s failure to address this issue directly in its final rule did not violate the EPA. H. Regulatory Flexibility Analysis In the proposed and final storm water rules, EPA certified, pursuant to the Regulatory Flexibility Act (“RFA”), 5 U.S.C. § 601-612 (1988), that the rule would not have “a significant economic impact on a substantial number of small entities.” Id. § 605; 55 Fed.Reg. at 48,061; 53 Fed.Reg. at 49,464. Certification releases the agency from its obligation to conduct a “regulatory flexibility analysis” in conjunction with its rulemaking. 5 U.S.C.A. § 605(b). AMC contends that EPA’s certification was mistaken with respect to the regulation of inactive mines, and urges us to invalidate the regulation as arbitrary and capricious. We cannot do so. We" } ]

[ { "docid": "3008876", "title": "", "text": "PER CURIAM. Loren Bagóla, a prisoner, appeals the district court’s dismissal for frivolousness of his Bivens action against prison officials concerning his conditions of confinement. 28 U.S.C. § 1915(d). The lower court dismissed his in forma pauperis complaint on the grounds that the subjective element of “deliberate indifference” was “entirely absent.” (Rec. at 4.) However, Bagóla expressly states in his cause of action that the officials violated his Eighth Amendment rights “due to defendants’ deliberate indifference to the serious need for Safety precautions” for certain machines. (Compl. at 6 (emphasis added).) He claims that these officials knew the danger and caused the loss of his right hand by forcing him to work with this machinery. We review this § 1915(d) dismissal for an “abuse of discretion.” Denton v. Hernandez, — U.S. -, -, 112 S.Ct. 1728, 1734, 118 L.Ed.2d 340 (1992). We reverse and remand for further proceedings consistent with this opinion. The lower court properly held that 18 U.S.C. § 4126, a federal prison worker’s compensation statute, does not preclude Bivens suits against prison officials, although it does provide the exclusive remedy for tort suits against the Government. United, States v. Demko, 385 U.S. 149, 152, 87 S.Ct. 382, 384, 17 L.Ed.2d 258 (1966) (holding that § 4126 remedy bars Federal Tort Claims Act suit against Government). “[Ujnless the statute specifically abrogates the common law right to sue a co-employee, it should not be interpreted to do so.” Andrews v. Benson, 809 F.2d 1537, 1542 (11th Cir.1987) (citing Allman v. Hanley, 302 F.2d 559, 563 (5th Cir.1962)). Section 4126 contains no specific provisions that abrogate the right to sue other prison employees. Thus, neither this statute nor the Federal Tort Claims Act, which specifically permits constitutional tort actions against Government employees, 28 U.S.C. § 2679(b)(2), bar Bagola’s Bivens action against the prison officials. Under section 1915(d), an action is fiivolous “where it lacks arguable basis either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct. 1827, 1831-32, 104 L.Ed.2d 338 (1989). To provide an arguable basis for his claim, Bagóla must allege that each" } ]

[ { "docid": "22092560", "title": "", "text": "Mr. Justice Black delivered the opinion of the Court. The respondent Demko, a federal prisoner, was seriously injured in 1962 in the performance of an assigned prison task in a federal penitentiary. Shortly afterward he filed a claim for compensation benefits under 18 U. S. C. § 4126. That law, first enacted by Congress in 1934, authorized the Federal Prison Industries, Inc., a federal corporation, to use its funds “in paying, under rules and regulations promulgated by the Attorney General, compensation ... to inmates or their dependents for injuries suffered in any industry.” Under that law and regulations promulgated under it, respondent was awarded $180 per month which was to start on discharge from prison and continue so long as disability continued. After winning this compensation award, respondent brought this action against the United States in the Federal District Court under the Federal Tort Claims Act, alleging that his injury was due to the Government’s negligence for which he was entitled to recover additional damages under that Act. The United States defended on the single ground that respondent’s right to recover compensation under 18 U. S. C. § 4126 was his exclusive remedy against the Government barring him from any suit under the Federal Tort Claims Act. The District Court, holding that compensation under 18 U. S. C. § 4126 was not his exclusive remedy, rejected this defense and accordingly entered a judgment for the respondent against the United States for tort claim damages based on stipulated facts. The Court of Appeals for the Third Circuit affirmed. 350 F. 2d 698. Subsequently the Court of Appeals for the Second Circuit, in Granade v. United States, 356 F. 2d 837, reached precisely the opposite result, holding that a prison inmate, injured in prison employment and eligible for compensation under 18 U. S. C. § 4126, is precluded from suing under the Federal Tort Claims Act. To resolve this conflict we granted certiorari. 383 U. S. 966. Historically, workmen’s compensation statutes were the offspring of a desire to give injured workers a quicker and more certain recovery than can be obtained from" }, { "docid": "18087515", "title": "", "text": "POSNER, Circuit Judge. Jessie Rivera, a federal inmate, suffers from numbness and pain as a result of second-degree burns on his left leg, foot, and ankle. His suit accuses a physician named Ravi Gupta, and a prison health services administrator named Cesar Lopez, of deliberate indifference to his need for substantial medical treatment, thereby violating his Eighth Amendment rights. See Farmer v. Brennan, 511 U.S. 825, 834, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994); Estelle v. Gamble, 429 U.S. 97, 104-05, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). The district court entered summary judgment for the defendants, precipitating this appeal. (Rivera had also brought a claim under the Federal Torts Claims Act, but the district court rightly dismissed it on the authority of United States v. Demko, 385 U.S. 149, 87 S.Ct. 382, 17 L.Ed.2d 258 (1966), which holds that the Inmate Accident Compensation Act, 18 U.S.C. § 4126(c)(4), precludes FTCA claims for prisoners injured while working.) The prison kitchen in which Rivera was working in May 2011 when the accident occurred had a history of large kettle pots’ boiling over and spilling water on the floor. One of these pots, containing dirty water, butter, and shortening, had been boiling over for more an hour when Rivera slipped on the wet floor underneath the pot, scalding his leg. A nurse diagnosed him with second-degree burns on his left lower leg and ankle, removed the dead skin around the wound, dressed the burn, and prescribed a narcotic pain medication, a wheelchair (because the burn was making it difficult for him to walk), and a lower bunk, and told him not to engage in strenuous physical activity. For several weeks Rivera returned to the healthcare unit daily so that medical staff could monitor the burn for infection and clean and dress the wound. In these visits he continued to complain that pain and numbness in his left leg, ankle, and foot were making walking difficult for him. A physician assistant told him that his symptoms probably were a normal part of the healing process and suggested that he return to the health" }, { "docid": "22365594", "title": "", "text": "submit a claim for compensation. Id. § 301.303(a). If, however, he has fully recovered from his injuries while incarcerated, he is not entitled to any compensation. Id. § 301.314(a). The second type of compensation is for wages the inmate actually loses while he is prevented from doing his work assignment due to his injury. Id. § § 301.101(b), 301.201-.205. 3. FTCA Claim The district court dismissed Smith’s FTCA claim on two bases: first, that the FTCA claim is barred because “the cause of his alleged injuries [is] work-related and compensable only under 18 U.S.C. § 4126,” Aplt.App. Doc. 59 at 6; and second, that an FTCA claim, which may only be brought against the United States, failed for lack of an alleged “significant physical injury,” id. at 6-7. As an initial matter, we, like the district court, note that Smith asserted his FTCA claim against all the named defendants. “The United States is the only proper defendant in an FTCA action.” Oxendine v. Kaplan, 241 F.3d 1272, 1275 n. 4 (10th Cir.2001). Thus, the district court correctly dismissed Smith’s FTCA claims against every defendant except the United States on the ground that those defendants were not proper parties. We also note that the Supreme Court has long recognized the right of federal prisoners to recover damages against the United States under the FTCA for personal injuries sustained as the result of the negligence of a federal employee. See United States v. Muniz, 374 U.S. 150, 150, 83 S.Ct. 1850, 10 L.Ed.2d 805 (1963) (holding that a person can sue under the FTCA “for personal injuries sustained during confinement in a federal prison, by reason of the negligence of a government employee”). But when a federal prisoner’s injuries are work-related, the Supreme Court has held that the prisoner’s exclusive remedy against the government is the Inmate Accident Compensation Act; he cannot sue the government under the FTCA. United States v. Demko, 385 U.S. 149, 152-54, 87 S.Ct. 382, 17 L.Ed.2d 258 (1966). There is no dispute that Smith’s alleged injuries are work-related. Smith argues that the Inmate Accident Compensation Act should" }, { "docid": "2767344", "title": "", "text": "(1959) the Supreme Court re-affirmed its holding in Johansen limiting the recovery right of certain civilian seamen to their benefits under the Federal Employees Compensation Act. The Feres doctrine was cited as authority for this holding despite the fact that no military personnel were involved. United States v. Demko, 385 U.S. 149, 87 S.Ct. 382, 17 L.Ed.2d 258 (1966) dealt with a federal prisoner who had received compensation benefits under 18 U.S.C. § 4126 for injuries sustained while performing a prison task, but who also was attempting to sue under the F. T. C.A. Citing the Patterson and Johansen cases, the Court found Demko’s statutory remedies exclusive and barred the additional tort suit. Demko distinguished a prior decision, United States v. Muniz, 374 U.S. 150, 83 S.Ct. 1850, 10 L.Ed.2d 805 (1963) which allowed a suit by an injured federal prisoner, on the ground that the statutory compensation scheme did not cover the plaintiff in Muniz, whereas it did in Demko. The Court concluded in Demko that “where there is a compensation statute that reasonably and fairly covers a particular group of workers, it presumably is the exclusive remedy to protect that group.” 385 U.S. at 152, 87 S.Ct. at 384. There is no reasonable way, in law or in logic, to distinguish the position of the P.H.S. officer from that of the military man, for purposes of tort suits. The P.H.S. compensation plan is the same “simple, certain and uniform” system described in the Feres decision. 42 U. S.C. § 213a (1974). Thus, this case is easily distinguished from Muniz where the plaintiff was allowed to sue because no plan of compensation covered him. Dr. Bumberg’s injuries and subsequent death were clearly “service-connected.” This factor distinguishes his case from Brooks and Brown, supra, where the plaintiffs were, respectively, on furlough from and discharged out of the service. Considerations persuasive to the Court in Feres are equally applicable to this case. The P.H.S. compensation system eliminates the need for a relaxation of sovereign immunity, the underlying purpose of the P.T.C.A. Moreover, it is not clear that, but for sovereign immunity," }, { "docid": "5577418", "title": "", "text": "Due to these injuries, Alexander was rated 100% disabled and placed on temporary disability retirement status for a period of approximately two and one-half years, pursuant to the procedures specified in 10 U.S.C. §§ 1205, 1210, 1211 (1970). During that time he was paid disability compensation in excess of $44,000 under the Career Compensation Act, see 10 U.S.C. §§ 1202, 1401, 42 U. S.C. § 213a (1970). On August 6, 1972, Alexander was recalled to active duty with the PHS as provided in 10 U.S.C. §§ 1210, 1211 (1970). In his complaint, plaintiff grounded jurisdiction on 28 U.S.C. § 1346(b) (1970) and the Federal Tort Claims Act, 28 U.S.C. §§ 2671-2680 (1970). He claimed damages for the alleged negligence of the doctors and other medical personnel who had participated in his anesthetization. The government argued that Alexander’s suit should be dismissed on the basis of the principles established in United States v. Demko, 385 U.S. 149, 87 S.Ct. 382, 17 L.Ed.2d 258 (1966) and Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950). We agree. In Demko, supra, the Supreme Court considered the question of whether an injured federal prisoner, having received disability compensation under a specific federal statute, could maintain an action for damages under the Federal Tort Claims Act. The Court denied relief un der the Act, stating that “where there is a compensation statute that reasonably and fairly covers a particular group of workers, it presumably is the exclusive remedy to protect that group.” Id. at 152 of 385 U.S., at 384 of 87 S.Ct. In so holding, the Court expressly rejected the argument, made by Alexander in the case before us, that a compensation statute will be presumed to be a non-exclusive remedy in the absence of specific language to the contrary. Id. The Court noted that generally workmen’s compensation laws are considered to be exclusive substitutes for common law tort remedies and cited two cases, Patterson v. United States, 359 U.S. 495, 79 S.Ct. 936, 3 L.Ed.2d 971 (1959), and Johansen v. United States, 343 U.S. 427, 72 S.Ct. 849," }, { "docid": "2767343", "title": "", "text": "obtain if suits under the Tort Claims Act were allowed for negligent orders given or negligent acts committed in the course of military duty, led the Court to read that Act as excluding claims of that character. Id. at 112, 75 S.Ct, at 143. Courts subsequently have found considerations of military discipline, while an important factor in some cases, not essential to the doctrine of Feres. Although the rule of non-liability for injuries to servicemen “incident to service” is designed to avoid interference with military discipline, the Supreme Court has never indicated that Feres should be limited to situations which pose a threat or interference with military discipline. United States v. Lee, 400 F.2d 558, 564 (9th Cir. 1968). In this Circuit, the Court of Appeals has recently stated flatly “Feres required no nexus between discipline and injury. We see nó occasion to depart therefrom, even if we could.” Hall v. United States, 451 F.2d 353, 354 (1st Cir. 1971). In Patterson v. United States, 359 U. S. 495, 79 S.Ct. 936, 3 L.Ed.2d 971 (1959) the Supreme Court re-affirmed its holding in Johansen limiting the recovery right of certain civilian seamen to their benefits under the Federal Employees Compensation Act. The Feres doctrine was cited as authority for this holding despite the fact that no military personnel were involved. United States v. Demko, 385 U.S. 149, 87 S.Ct. 382, 17 L.Ed.2d 258 (1966) dealt with a federal prisoner who had received compensation benefits under 18 U.S.C. § 4126 for injuries sustained while performing a prison task, but who also was attempting to sue under the F. T. C.A. Citing the Patterson and Johansen cases, the Court found Demko’s statutory remedies exclusive and barred the additional tort suit. Demko distinguished a prior decision, United States v. Muniz, 374 U.S. 150, 83 S.Ct. 1850, 10 L.Ed.2d 805 (1963) which allowed a suit by an injured federal prisoner, on the ground that the statutory compensation scheme did not cover the plaintiff in Muniz, whereas it did in Demko. The Court concluded in Demko that “where there is a compensation statute that reasonably" }, { "docid": "2934897", "title": "", "text": "as possible, ‘into the entire statutory system of remedies against the Government to make a workable, consistent and equitable whole.’ ” Quoting and citing Feres. In Patterson v. United States, 359 U. S. 495, 79 S.Ct. 936, 3 L.Ed.2d 971 (1959) the court rested its decision on Johansen, supra, and held certain employees of the United States, who were entitled to benefits under the Federal Employees Compensation Act, supra, did not have a right against the government under the suits in Admiralty Act, 41 Stat. 525 et seq., 46 U.S.C. § 741 et seq., as seamen on government vessels in merchant service. United States v. Demko, 385 U.S. 149, 87 S.Ct. 382, 17 L.Ed.2d 258 (1966) and United States v. Muniz, 374 U.S. 150, 83 S.Ct. 1850, 10 L.Ed.2d 805, fit precisely into the compensation rationale. In Dem-ko the prisoner had a right to and had received an award for compensation under 18 U.S.C. § 4126, applying to Federal Prison Industries Inc. The case denied him the right to seek a remedy under the Tort Claims Act. In Muniz, as explained in Demko (page 153, 87 S. Ct. at page 385) “* * * the two prisoners there involved, who were not protected by the prison compensation law, were not barred from seeking relief under the Federal Tort Claims Act.” In Muniz the court noted it found “no occasion to question [the holding in] Fer-es.’’ (374 U.S. at 159, 83 S.Ct. at 1856). Appellee argues that there is no exclusive remedy by statute granting benefits to the widow and children of the decedents. However, the case law above cited has shown that the Supreme Court, in the absence of a statutory provision that the compensation remedy be exclusive, has held that where there exists a form of administrative compensation for government employees injured in the performance of their duties, the availability of such remedy precludes government liability on ■ some other ground. In Johansen v. United States, supra, the court noted that * * * “Congress did not specifically declare that the Compensation Act was exclusive of all other remedies.”" }, { "docid": "19973", "title": "", "text": "remedial scheme with procedural safeguards sufficient to protect individual’s constitutional rights. See, e.g., Robbins, 41 F.3d at 1202 (“We are clearly presented with a situation in which Congress has provided an elaborate remedial scheme ... for the protection of Robbins’s constitutional rights in the employment context.”); Feit v. Ward, 886 F.2d 848, 855 (7th Cir.1989) (“Because Congress has provided Feit ... with an avenue of relief to redress violations of [his] constitutional rights; it cannot be said that Congress’ omission of a separate damages remedy for constitutional violations from the remedies available under the [statute] was inadvertent.”). In some cases, the “special factors” analysis may indicate that Congress’s inaction was, in fact, inadvertent. Under these circumstances, a Bivens remedy may be appropriate. However, when it is evident that congressional omission of a separate damages remedy for constitutional violations is not inadvertent, then the special factors inquiry compels preclusion of Bivens claims. The appellees point to the Supreme Court’s treatment of § 4126 in United States v. Demko, 385 U.S. 149, 87 S.Ct. 382, 17 L.Ed.2d 258 (1966), as indicating the existence of special factors in this case. In Dem-ko the Supreme Court held that the plaintiff, a prisoner who was seriously injured while working for Federal Prison Industries, was precluded from bringing an FTCA claim against the United States and was limited to an exclusive remedy under § 4126. The Court discussed the history of no-fault worker’s compensation laws and stated that “compensation laws are practically always thought of as substitutes for, not supplements to, common-law tort actions.” Id. at 151, 87 S.Ct. at 383-84. The Court reasoned that absent any legislative indication to the contrary, § 4126 would be presumed an “exclusive remedy” to protect federal prison workers: “[The] law, as shown by its regulations, its coverage and the amount of its payments to the injured and their dependents, compares favorably with compensation laws all over the country,” Id. at 152, 87 S.Ct. at 384. Unless instructed otherwise by Congress, the Court would “accept the prison compensation law as an adequate substitute for a system of recovery by common-law" }, { "docid": "5848062", "title": "", "text": "of the injury which was caused by the alleged negligence of prison officials in supplying the care and treatment that he was entitled to. He did not sue for the on-the-job injury itself. Nevertheless, the government moved for summary judgment on the basis that any recovery for the injury was limited to the compensation fund process. The district court agreed, and Vander appealed. STANDARD OF REVIEW We review the district court’s grant of summary judgment de novo. Weyer v. Twentieth Century Fox Film Corp., 198 F.3d 1104, 1108 (9th Cir.2000). We will affirm the decision to grant summary judgment when, reviewing the record as a whole and drawing all reasonable inferences in favor of the nonmoving party, we find no genuine issue of material fact. Id.; see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-52, 106 S.Ct. 2505, 2510-12, 91 L.Ed.2d 202 (1986). DISCUSSION As we have already stated, Vander brought this action under the FTCA on the theory that prison-official negligence after he was injured on the job exacerbated that injury. There can be no doubt that if Vander were suing for the job injury itself, his claim would be barred. The Prison Industries Fund may be used to compensate “inmates ... for injuries suffered in any industry or in any work activity in connection with the maintenance or operation of the institution in which the inmates are confined.” 18 U.S.C. § 4126(c). That is the sole source of compensation for the injury; its remedy is exclusive. See United States v. Demko, 385 U.S. 149, 152-53, 87 S.Ct. 382, 384-85, 17 L.Ed.2d 258 (1966); Aston v. United States, 625 F.2d 1210, 1211 (5th Cir.1980). But, Vander claims, he is not suing for that injury; he is suing for the separate negligence of prison officials in supplying medical care for the injury. As he points out, in general, prisoners can sue under the FTCA for injuries caused by prison-official negligence. See United States v. Muniz, 374 U.S. 150, 158, 83 S.Ct. 1850, 1855, 10 L.Ed.2d 805 (1963). Thus, Vander argues, he should be able to recover here. Logic offers" }, { "docid": "5848063", "title": "", "text": "be no doubt that if Vander were suing for the job injury itself, his claim would be barred. The Prison Industries Fund may be used to compensate “inmates ... for injuries suffered in any industry or in any work activity in connection with the maintenance or operation of the institution in which the inmates are confined.” 18 U.S.C. § 4126(c). That is the sole source of compensation for the injury; its remedy is exclusive. See United States v. Demko, 385 U.S. 149, 152-53, 87 S.Ct. 382, 384-85, 17 L.Ed.2d 258 (1966); Aston v. United States, 625 F.2d 1210, 1211 (5th Cir.1980). But, Vander claims, he is not suing for that injury; he is suing for the separate negligence of prison officials in supplying medical care for the injury. As he points out, in general, prisoners can sue under the FTCA for injuries caused by prison-official negligence. See United States v. Muniz, 374 U.S. 150, 158, 83 S.Ct. 1850, 1855, 10 L.Ed.2d 805 (1963). Thus, Vander argues, he should be able to recover here. Logic offers some support for his position, but law does not. Where a doctor, for example, gives negligent treatment to an injury, one would expect to be able to sue the doctor for that negligence. However, the regulations under § 4126(c) provide that as far as the United States is concerned, “[c]ompensation may ... be paid for work-related injuries or claims alleging improper medical treatment of a work-related injury.” 28 C.F.R. § 301.301(b). As other circuits have pointed out, that means that “[s]ection 4126 is ... the exclusive remedy when a work-related injury is subsequently aggravated by negligence and malpractice on the part of pris on officials.... ” Wooten v. United States, 825 F.2d 1039, 1044 (6th Cir.1987). Or, as the Fifth Circuit put it, “[d]espite the appellant’s allegation that the negligence of the hospital worker occasioned further injuries, for which he seeks damages, he is barred from litigating the matter under the Federal Tort Claims Act since the cause of his original injury was work-related. Thompson v. United States, 495 F.2d 192, 193 (5th Cir.1974) (per" }, { "docid": "2934896", "title": "", "text": "certain and uniform compensation for injuries or death of those in the armed services,” (340 U.S. at 144, 71 S.Ct. at 158) is still a good one. The Supreme Court has made consistent application of this rationale in analogous situations, holding that where Congress has provided a form of administrative compensation for government employees injured in the performance of their duties, the availability of such a remedy precludes recourse to a tort suit against the government. In Johansen v. United States, 343 U.S. 427, 72 S.Ct. 849, 96 L.Ed. 1051 (1952) a civilian employee of the United States who was a member of a crew of a public vessel (not a merchant vessel), was not permitted relief under the Public Vessels Act, 43 Stat. 1112 et seq., 46 U.S.C. § 781 et seq., because his remedies under the Federal Employees Compensation Act, 39 Stat. 742 et seq., 5 U.S.C. § 751 et seq., were held to be exclusive. The Court found it had a duty “to attempt to fit the Public Vessels Act, as intelligently as possible, ‘into the entire statutory system of remedies against the Government to make a workable, consistent and equitable whole.’ ” Quoting and citing Feres. In Patterson v. United States, 359 U. S. 495, 79 S.Ct. 936, 3 L.Ed.2d 971 (1959) the court rested its decision on Johansen, supra, and held certain employees of the United States, who were entitled to benefits under the Federal Employees Compensation Act, supra, did not have a right against the government under the suits in Admiralty Act, 41 Stat. 525 et seq., 46 U.S.C. § 741 et seq., as seamen on government vessels in merchant service. United States v. Demko, 385 U.S. 149, 87 S.Ct. 382, 17 L.Ed.2d 258 (1966) and United States v. Muniz, 374 U.S. 150, 83 S.Ct. 1850, 10 L.Ed.2d 805, fit precisely into the compensation rationale. In Dem-ko the prisoner had a right to and had received an award for compensation under 18 U.S.C. § 4126, applying to Federal Prison Industries Inc. The case denied him the right to seek a remedy under the Tort" }, { "docid": "6843066", "title": "", "text": "the named defendants.” Id. at 355. The reason was “a Bivens action can be maintained against a defendant in his or her individual capacity only, and not in his or her official capacity.” Id. This proposition which controlled Daly-Murphy, that “a Bivens action can be maintained against a defendant in his or her individual capacity only, and not in his or her official capacity,” determines the result in the case at bar. This was a Bivens action, so the defendants were sued only as individuals. Because Vaeearo did not and could not have sued the United States or its officers in their official capacity upon a Bivens claim, it necessarily follows that he did not have to serve the United States. B. Prison Inmates’ Remedies. The United States argues that a prisoner’s exclusive remedy for prison work injuries is under 18 U.S.C. § 4126. That statute authorizes the Federal Prison Industries Fund to pay “compensation to inmates or their dependents for injuries suffered in any industry or in any work activity in connection with the maintenance or operation of the institution in which the inmates are confined.” 18 U.S.C. § 4126(c)(4). This is a prisoner’s exclusive remedy against the United States for work related injuries and bars a prisoner from suit under the Federal Tort Claims Act for work related injuries. United States v. Demko, 385 U.S. 149, 87 S.Ct. 382, 17 L.Ed.2d 258 (1966). The federal defendants argue that even if we do not affirm on the ground of lack of personal jurisdiction because of defective service, we should affirm the dismissal for lack of subject matter jurisdiction under this exclusive remedy provision. See Polich v. Burlington Northern, Inc., 942 F.2d 1467, 1470 (9th Cir.1991). Demko establishes that 18 U.S.C. § 4126 is the exclusive remedy “against the Government.” Id. at 150, 87 S.Ct. at 383. Vaccaro’s Bivens action is not against the government. “An individual may not maintain a Bivens action for monetary damages against the United States.” Daly-Murphy, 837 F.2d at 356. Also, the theories as well as the defendants in section 4126 claims and in Bivens" }, { "docid": "22365599", "title": "", "text": "suits [and therefore] compensation laws are practically always thought of as substitutes for, not supplements to, common law tort actions.” Id. at 151, 87 S.Ct. 382. In contrast, the Court held in Carlson that it is “crystal clear that Congress views the FTCA and Bivens as parallel, complementary causes of action.” Carlson, 446 U.S. at 20, 100 S.Ct. 1468. This court’s two-paragraph per curiam decision in Gomez followed on the heels of Demko and set aside a judgment against the United States under the FTCA for a prisoner’s work-related injuries. Gomez, 378 F.2d at 939. While Gomez did describe Demko as holding that “the compensation benefits provided by 18 U.S.C. § 4126 constitute the exclusive remedy for injuries received by federal prisoners while performing assigned prison tasks,” id., we must be careful not to take this statement out of context. Both Demko and Gomez concerned only tort claims against the United States, and neither purported to consider whether the Inmate Accident Compensation Act also constituted an inmate’s exclusive remedy for claims against an individual federal official who has allegedly violated the inmate’s constitutional rights in connection with a work-related injury. The Supreme Court in Carlson, in holding that the FTCA did not preclude the prisoner’s Bivens claim, stated that a plaintiffs ability to pursue a Bivens claim is precluded in two specific instances: The first is when defendants demonstrate special factors counselling hesi tation in the absence of affirmative action by Congress. The second is when defendants show that Congress has provided an alternative remedy which it explicitly declared to be a substitute for recovery directly under the Constitution and viewed as equally effective. 446 U.S. at 18-19, 100 S.Ct. 1468 (internal quotation and citations omitted). The Carlson Court supported its conclusion that Congress did not intend the FTCA to preclude a prisoner’s Bivens claim by finding that a Bivens remedy was more effective than the FTCA remedy. Id. at 20-23, 100 S.Ct. 1468. The Carlson Court noted the deterrent effect of the Bivens remedy because of the potential personal financial liability to federal officials, in addition to federal officials’" }, { "docid": "213767", "title": "", "text": "PER CURIAM. Appellee-plaintiff recovered a $15,000 judgment against the United States under the Federal Tort Claims Act, 28 U. S.C. §§ 1346(b), 2671 et seq. The award was for injuries sustained in the operation of a power saw while he was engaged in work on a prison construction crew as a federal prisoner in a federal correctional institution. The trial court concluded that such recovery was proper under United States v. Muniz, 374 U. S. 150, 83 S.Ct. 1850, 10 L.Ed.2d 805. After the judgment was entered, the Supreme Court of the United States held in United States v. Demko, 385 U.S. 149, 87 S.Ct. 382, 17 L.Ed.2d 258, that the compensation benefits provided by 18 U.S.C. § 4126 constitute the exclusive remedy for injuries received by federal prisoners while performing assigned prison tasks. That decision precludes recovery under the Federal Tort Claims Act in the instant case. The judgment is reversed and the case remanded with directions to dismiss the action." }, { "docid": "22365598", "title": "", "text": "support for this argument, defendants cited the Supreme Court’s decision in Demko, 385 U.S. 149, 87 S.Ct. 382, 17 L.Ed.2d 258, our published decision in United States v. Gomez, 378 F.2d 938 (10th Cir.1967) (per curiam), and our unpublished decision in Alvarez v. Gonzales, 155 Fed.Appx. 393 (10th Cir.2005). The district court, in turn, relied on these three cases in granting defendants’ motion. Neither Demko nor Gomez concerned a claim against individual federal officials, however. Rather, Demko addressed whether the Inmate Accident Compensation Act’s administrative compensation scheme provided a federal prisoner’s exclusive remedy against the United States for a work-related injury and thus barred suit against the government under the FTCA. Demko, 385 U.S. at 150, 87 S.Ct. 382. In ruling that the Inmate Accident Compensation Act did preempt a claim under the FTCA, the Court noted that workers’ compensation statutes were historically “the offspring of a desire to give injured workers a quicker and more certain recovery than can be obtained from tort suits based on negligence and subject to common-law defenses to such suits [and therefore] compensation laws are practically always thought of as substitutes for, not supplements to, common law tort actions.” Id. at 151, 87 S.Ct. 382. In contrast, the Court held in Carlson that it is “crystal clear that Congress views the FTCA and Bivens as parallel, complementary causes of action.” Carlson, 446 U.S. at 20, 100 S.Ct. 1468. This court’s two-paragraph per curiam decision in Gomez followed on the heels of Demko and set aside a judgment against the United States under the FTCA for a prisoner’s work-related injuries. Gomez, 378 F.2d at 939. While Gomez did describe Demko as holding that “the compensation benefits provided by 18 U.S.C. § 4126 constitute the exclusive remedy for injuries received by federal prisoners while performing assigned prison tasks,” id., we must be careful not to take this statement out of context. Both Demko and Gomez concerned only tort claims against the United States, and neither purported to consider whether the Inmate Accident Compensation Act also constituted an inmate’s exclusive remedy for claims against an individual federal" }, { "docid": "1019798", "title": "", "text": "he had suffered mental anguish; incurred debts for legal services in excess of the amount awarded by the MSPB; and incurred other out-of-pocket expenses and interest losses. In dismissing Premachandra’s suit, the district-court reasoned that this case was governed by Alexander v. United States, 500 F.2d 1, 2-3 (8th Cir.1974), cert. denied, 419 U.S. 1107, 95 S.Ct. 779, 42 L.Ed.2d 803 (1975). In Alexander, we held that a commissioned officer of the Public Health Service was barred from maintaining a medical malpractice suit under the Federal Tort Claims Act, because remedies available to Service personnel under a comprehensive statutory disability compensation scheme were exclusive. We cited United States v. Demko, 385 U.S. 149, 87 S.Ct. 382, 17 L.Ed.2d 258 (1966), for the proposition that when a federal compensation statute reasonably and fairly covers a particular group of workers, Congress presumably intends the remedies provided to be exclusive. On appeal, Premachandra contends that the presumption referred to in Alexander and Demko was inapplicable to his case. He relies instead on the Supreme Court’s admonition in Rayonier Inc. v. United States, that “[t]here is no justification ... to read exemptions into the [Federal Tort Claims] Act beyond those .provided by Congress.” 352 U.S. 315, 320, 77 S.Ct. 374, 377, 1 L.Ed.2d 354 (1957). DISCUSSION To a .degree it may be conceded that Premachandra is correct in contending that United States v. Demko and Alexander v. United States are distinguishable from the present case. Both of those cases involved remedial statutes similar in concept to workers compensation statutes, and relied in part on the long established principle that workers compensation remedies are exclusive. There is little by way of similar tradition with respect to legal remedies provided wrongfully discharged employees. On the other hand, we cannot agree with Premachandra that Rayonier Inc. v. United States is dispositive. Premachandra’s tort claim is, at bottom, a claim that he was wrongfully discharged. While we should be reluctant judicially to erode the broad remedy provided by the Federal Tort Claims Act, we are equally reluctant to ignore a congressional intent that civil service remedies be the" }, { "docid": "6843067", "title": "", "text": "maintenance or operation of the institution in which the inmates are confined.” 18 U.S.C. § 4126(c)(4). This is a prisoner’s exclusive remedy against the United States for work related injuries and bars a prisoner from suit under the Federal Tort Claims Act for work related injuries. United States v. Demko, 385 U.S. 149, 87 S.Ct. 382, 17 L.Ed.2d 258 (1966). The federal defendants argue that even if we do not affirm on the ground of lack of personal jurisdiction because of defective service, we should affirm the dismissal for lack of subject matter jurisdiction under this exclusive remedy provision. See Polich v. Burlington Northern, Inc., 942 F.2d 1467, 1470 (9th Cir.1991). Demko establishes that 18 U.S.C. § 4126 is the exclusive remedy “against the Government.” Id. at 150, 87 S.Ct. at 383. Vaccaro’s Bivens action is not against the government. “An individual may not maintain a Bivens action for monetary damages against the United States.” Daly-Murphy, 837 F.2d at 356. Also, the theories as well as the defendants in section 4126 claims and in Bivens actions are different. No violation of constitutional rights is required for a section 4126 claim, and no prison work related injury is necessary for a Bivens claim. We agree with the Seventh Circuit that 18 U.S.C. § 4126 “does not preclude Bivens suits against prison officials.” Bagola v. Kindt, 39 F.3d 779, 780 (7th Cir.1994). Accordingly, the dismissal cannot be affirmed on the basis of that statute and Demko. C. Dr. Trettin. Another defendant, Dr. Trettin, made a separate motion to dismiss alleging inter alia that he had never been personally served. Plaintiff never responded to Dr. Trettin’s separate motion and the district court apparently treated both motions for dismissal as one. Without stating separate reasons, the district court dismissed the claims against Dr. Trettin. Dr. Trettin is a private physician who operated on Vaccaro. He was not a prison official. Therefore, the erroneous ground on which the other claims were dismissed could not have applied to Dr. Trettin’s claim. Nor can the dismissal of Vacearo’s claim against Dr. Trettin be upheld on the ground" }, { "docid": "5238195", "title": "", "text": "under that act. Somma v. United States, 283 F.2d 149, 150-51 (3d Cir. 1960). The policy behind FECA is similar to that of state workmen’s compensation laws, which is to provide injured employees with more immediate and less expensive relief than a common law tort action. United States v. Demko, 385 U.S. 149, 151, 87 S.Ct. 282, 17 L.Ed.2d 258 (1966). The remedy provided by FECA, like that of most comparable statutes, is exclusive of any other remedy including FTCA. 5 U.S.C. § 8116(c). Avasthi wants no part of FECA. He has not applied for compensation and does not now seek it. He insists that he was seriously injured and incurred permanent partial disability as the proximate consequence of defendant’s negligence. He reasons that under FTCA he is entitled to damages that greatly exceed any potential award of FECA benefits. Avasthi’s argument based on the comparative statutory benefits is irrelevant to the question controlling his claim. We are required to determine which of two mutually exclusive statutes applies to this claim. This determination must rest on the statutory language and congressional purpose. Its effect will extend to other employees injured under similar circumstances, regardless of the sympathetic appeal of their causes or their preferences for one statute. The central question is whether there was at least a substantial question that Avas-thi’s injury occurred “in the performance of his duty.” 5 U.S.C. § 8102(a). Avasthi was employed by the Federal Aviation Administration as an air traffic controller trainee at FAA’s Air Traffic Control Center in Hampton, Georgia. He was injured when he slipped and fell at the Center building on outside steps while walking to his automobile. His accident occurred at the end of his assigned work shift at 11:42 P.M. on January 12, 1975. The Center building is separated from the parking lot by a walkway, an access drive, and then two short flights of steps. The parking lot is a private Center lot for employees and persons having business there. The parking lot and Center building are surrounded by a chain link fence of eight feet height with barbed" }, { "docid": "22365595", "title": "", "text": "court correctly dismissed Smith’s FTCA claims against every defendant except the United States on the ground that those defendants were not proper parties. We also note that the Supreme Court has long recognized the right of federal prisoners to recover damages against the United States under the FTCA for personal injuries sustained as the result of the negligence of a federal employee. See United States v. Muniz, 374 U.S. 150, 150, 83 S.Ct. 1850, 10 L.Ed.2d 805 (1963) (holding that a person can sue under the FTCA “for personal injuries sustained during confinement in a federal prison, by reason of the negligence of a government employee”). But when a federal prisoner’s injuries are work-related, the Supreme Court has held that the prisoner’s exclusive remedy against the government is the Inmate Accident Compensation Act; he cannot sue the government under the FTCA. United States v. Demko, 385 U.S. 149, 152-54, 87 S.Ct. 382, 17 L.Ed.2d 258 (1966). There is no dispute that Smith’s alleged injuries are work-related. Smith argues that the Inmate Accident Compensation Act should not be the exclusive remedy against the government for a prisoner like himself who has a very long sentence. He argues the Inmate Accident Compensation Act likely would afford him little, if any, relief because he might die before he is within forty-five days of his release date, which is when he could first apply for benefits under the Act. The Supreme Court in Demko considered the argument that the Inmate Accident Compensation Act is not comprehensive enough, and rejected it. Id. at 152, 87 S.Ct. 382. “Until Congress decides differently we accept the prison compensation law as an adequate substitute for a system of recovery by common-law torts.” Id. at 153, 87 S.Ct. 382. Accordingly, the district court properly dismissed Smith’s FTCA claim against the United States for any injuries incurred while working at Leavenworth. 4. Bivens Claim As with the FTCA claim, Smith’s Bivens claim was asserted against all defendants. However, a Bivens claim can be brought only against federal officials in their individual capacities. Bivens claims cannot be asserted directly against the" }, { "docid": "22365597", "title": "", "text": "United States, federal officials in their official capacities, Farmer v. Perrill, 275 F.3d 958, 963 (10th Cir.2001), or federal agencies, F.D.I.C. v. Meyer, 510 U.S. 471, 485-86, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994). As a result, the district court correctly dismissed Smith’s Bivens claims against all defendants except for his claims against the individual federal officials in their individual capacities. Regarding the remaining Bivens defendants, however, the Supreme Court has held that a Bivens remedy may be available against federal prison officials for violations of the Eighth Amendment. See Carlson v. Green, 446 U.S. 14, 18, 100 S.Ct. 1468, 64 L.Ed.2d 15 (1980) (stating that “Bivens established that the victims of a constitutional violation by a federal agent have a right to recover damages against the official in federal court” in a case involving allegations of personal injuries from federal prison officials). Nonetheless, the individual defendants here argued that no Bivens remedy was available because the Inmate Accident Compensation Act constituted Smith’s exclusive remedy for any injury resulting from his alleged asbestos exposure. As support for this argument, defendants cited the Supreme Court’s decision in Demko, 385 U.S. 149, 87 S.Ct. 382, 17 L.Ed.2d 258, our published decision in United States v. Gomez, 378 F.2d 938 (10th Cir.1967) (per curiam), and our unpublished decision in Alvarez v. Gonzales, 155 Fed.Appx. 393 (10th Cir.2005). The district court, in turn, relied on these three cases in granting defendants’ motion. Neither Demko nor Gomez concerned a claim against individual federal officials, however. Rather, Demko addressed whether the Inmate Accident Compensation Act’s administrative compensation scheme provided a federal prisoner’s exclusive remedy against the United States for a work-related injury and thus barred suit against the government under the FTCA. Demko, 385 U.S. at 150, 87 S.Ct. 382. In ruling that the Inmate Accident Compensation Act did preempt a claim under the FTCA, the Court noted that workers’ compensation statutes were historically “the offspring of a desire to give injured workers a quicker and more certain recovery than can be obtained from tort suits based on negligence and subject to common-law defenses to such" } ]

[ { "docid": "18769350", "title": "", "text": "reasonably have known of his injury and its alleged cause, so as to commence the running of the statute of limitations, at any time more than three years prior to 1984, when he filed suit? A The general rule is that a tort cause of action accrues when there has been a violation of legally protected interests. See Restatement (Second) of Torts § 899, comments c and e (1977). This violation usually occurs when the tortious event is committed. See Echols v. Chrysler Corp., 633 F.2d 722 (6th Cir.1980). If greater than de minimis harm is discernable at the time of the tortious event, then the “time of the event” rule applies, plaintiff's cause of action accrues, and the statute of limitations begins to run. Even if “the plaintiff later discovers that his injuries are more serious than he originally thought, his cause of action nevertheless accrues on the earlier date, the date he realized that he had sustained harm from the tortious act.” Albertson v. T.J. Stevenson & Co., Inc., 749 F.2d 223, 229 (5th Cir.1984). However, if the injured person sustains an injury which cannot itself reasonably be discovered, or the cause of which cannot reasonably be discovered, until some time following the tortious event and the running of the statute of limitations, courts often apply the “discovery” rule, tolling the running of the statute of limitations to the date by which the plaintiff reasonably should have discovered both cause and injury. United States v. Kubrick, 444 U.S. 111, 122, 100 S.Ct. 352, 359, 62 L.Ed.2d 259 (1979). See also Urie v. Thompson, 337 U.S. 163, 170, 69 S.Ct. 1018, 1025, 93 L.Ed. 1282 (1949) (claim does not accrue until the injury manifests itself). The time of event rule and the discovery rule give rise to two types of cases. These are, respectively, the case in which a clearly damaging event is followed by a latent manifestation and the latent injury case. The traumatic event/latent manifestation case occurs when a noticeable, traumatic occurrence causes both obvious and latent injuries. Although the ultimate gravity of the harm may not" } ]

[ { "docid": "22940954", "title": "", "text": "persuasively that the time of event rule offends notions of fair play and substantial justice, even though he is unaware of all of the facts related to his injury or its cause. Indeed, in Erie, the Supreme Court implied that a plaintiff possessing “notice of the invasion of [his] legal rights” could not avail himself of the discovery rule, since the time of event rule adequately protected the plaintiffs legal interest and rights. 337 U.S. at 170, 69 S.Ct. at 1024. In this case, Albertson argues that his later-developed physical and mental problems, including the blisters first appearing on his hands in the summer of 1969 and later in 1978 or 1979 as well as his liver ailment, behavioral disorder, and other psychological problems, should result in tolling the Jones Act statute of limitations. We must disagree. DuBose, supra, calls for the application of the discovery rule only when a plaintiff is unaware of and has had no reasonable opportunity to discover the critical facts of his injury and its cause. Albertson possessed the critical facts of his injury and its cause at the time he endured the last exposure to the TCE. At that time he suffered serious damage and noteworthy injury, and he knew the injury was significant. We hold, therefore, that Albertson either possessed or had a reasonable opportunity to discover the critical facts of his injury and its cause at the time of his last exposure to the TCE. His Jones Act cause of action accrued at that time. This is not a case in which, coinciding with the trauma, an injured seaman experienced and noticed only a minor injury and at a later time discovered an unexpected latent injury that was unknown and unknowable at the time of the traumatic event. C.f., Marathon Oil Co. v. Luns-ford, 733 F.2d 1139, 1142 (5th Cir.1984). Albertson had knowledge of his injuries at the time he was injured, and he soon knew they were substantial. His lack of knowledge of all the claimed consequences of his injury does not justify a departure from the time of event rule" }, { "docid": "5301667", "title": "", "text": "a number of arguments related to the Toxic Substance Control Act (“TSCA”), 15 U.S.C.A. §§ 2601-2671 (West 1982 & 1993 Supp.). In order to evaluate these arguments, the court will briefly summarize the portions of TSCA pertinent to this motion. Congress passed TSCA in 1976, four years before CERCLA’s passage in 1980. The purpose of the legislation was to “regulate chemical substances and mixtures which present an unreasonable risk of injury to health or the environment, and to take action with respect to chemical substances and mixtures which are imminent hazards.” 15 U.S.C.A. § 2601(b)(2). In that vein, the statute outlawed the manufacture, processing, distribution, or use of PCBs “in any manner other than in a totally enclosed manner.” 15 U.S.C.A. § 2605(e)(2)(A). However, TSCA also authorized the EPA to issue a rule allowing the manufacture, processing, distribution, or use of PCBs in other than a totally enclosed manner if the EPA found that the activity in question did not “present an unreasonable risk of injury to health or the environment.” 15 U.S.C.A. § 2605(e)(2)(B). Pursuant to this statutory authority, the EPA issued a rule authorizing, subject to certain conditions, the use of PCBs in railroad transformers. The Code of Federal Regulations states: PCBs may be used in transformers in railroad locomotives or railroad self propelled cars (‘railroad transformers’) and may be processed and distributed in commerce for purposes of servicing these transformers in a manner other than a totally enclosed manner subject to the following conditions. 40 C.F.R. § 761.30(b) (1991). Furthermore, the EPA recognized that spills and leaks of PCBs were incidental to the use of such transformers: Through normal operation of railroad ears, certain concentrations of PCBs in dielectric fluid are frequently spilled onto railroad beds. These spills can occur as a result of overheating or electrical failure in the transformers and of damage to these transformers from rocks and debris on the railroad bed. 48 Fed.Reg. 124 (1983). TSCA does contain enforcement provisions. However, TSCA, unlike CERCLA, does not create a private right of action authorizing a private party to recover response costs from other responsible" }, { "docid": "9587074", "title": "", "text": "1980); Hicks v. Hines, Inc., 826 F.2d 1543 (recognizing the discovery rule, but not applying it in a case where there was a noticeable, traumatic occurrence causing both obvious and latent injuries, noting that the injury was thus “legally cognizable”); Young v. Clinchfield R.R. Co., 288 F.2d 499 (4th Cir. 1961) (although prior to Kubrick, the Fourth Circuit applied Urie to require the knowledge of an injury and its cause). . In its reply brief, defendant argues that the discovery rule should be used only when the claims arise from an occupational disease with pure latent manifestations, and should not be applied in cases characterized as \"ongoing repeated trauma with some latent manifestations.\" Instead the defendant contends that this court should apply the \"time of event” rule. The court finds no support for this conclusion. Courts applying the \"time of event” rule do so when the injured party had knowledge of or a reasonable opportunity to discover the critical facts of his injury and its cause. See, e.g., Hicks v. Hines, Inc., 826 F.2d 1543, 1544-45 (6th Cir. 1987) (holding that “time of event” rule should be applied when “greater than de minimus harm is discernible at the time of the tortious event.”); Albertson v. T.J. Stevenson and Company, Inc., 749 F.2d 223 (5th Cir.1984); Gregory v. Union Pacific Railroad Company, 673 F.Supp. 1544, 1547 (D.Nev.1987). The plaintiff characterizes this injury as a slowly progressive injury gradually eroding the worker’s ability to hear at various frequencies. Thus, although the injury is traumatic, it was not necessarily recognized as an injury at the time of the exposure to the noise. The affidavit of Dr. Bruce Smith filed with the plaintiffs memorandum in opposition echoed this point. I have learned and observed that noise induced hearing loss is a condition whose symptoms may not always be incident specific. In other words, this may be a gradual insidious occupational injury whose symptoms are often no more distinctive or unique, to a layman, than those symptoms caused by other forms of hearing loss including, in some people, the aging process itself. The process of" }, { "docid": "23343863", "title": "", "text": "REAVLEY, Circuit Judge: William L. Hagerty was accidently soaked with toxic chemicals while doing duty as a Jones Act seaman. He sues for his damages which include pain and suffering, mental anguish due to the fear of developing cancer, and the medical expense of regular checkups to monitor against that disease. The district court granted summary judgment for the defendants on the ground that no cause of action had accrued. We reverse and remand. The traditional tort rules may be restated. A tortious cause of action accrues when the victim suffers harm caused by the defendant’s wrong. The injury or harm may occur simultaneously with the tortious conduct in the case of a traumatic event or the injury may be latent and not manifested and discovered until some later date. When the fact of the injury does occur, if discovered by the victim, the cause of action accrues. The victim is then entitled to sue for his damages, past and present, as well as his probable future damages, and limitation also begins to run on the time within which suit may be instituted. The victim is entitled to only one cause of action and, if his injuries subsequently worsen, he has no further opportunity for recompense. The present appeal raises, primarily, the question of whether a cause of action has accrued. We hold that Hagerty suffered physical injuries and was entitled to pursue this action. The element of fear of cancer and attendant medical costs will be urged upon remand, and we therefore address «¿that issue. Finally, we volunteer our dis-’ satisfaction with the single cause of action rule in face of the recurring problem of injured people facing the possibility of cancer. Those victims should be entitled to recover for present injuries and, also, for the cancer when and if it later develops; they should neither be entitled nor compelled to recover for cancer damages until those damages can be realistically assessed. 1. ACCRUAL OF CAUSE OF ACTION Hagerty was employed by L & L Marine Service, Inc. and/or Globe Barge, Inc. in April 1982, when he served as" }, { "docid": "22940949", "title": "", "text": "suit. The district court applied Texas’s two-year statute of limitations for personal injury actions and granted Robins’s motion for summary judgment. We reversed and remanded, holding that the Texas discovery rule applied to a product liability case and tolled the accrual of a cause of action until the plaintiff both knew that she had been injured and knew or reasonably should have known the cause of her injury. In each of the pure latent injury cases set out above, the plaintiffs were victims of postponed awareness of their injury, the cause of their injury, or both their injury and its cause. Logic and sound jurisprudence mandate the conclusion that a plaintiff’s cause of action does not accrue under these circumstances until the injury and the cause are knowable. This conclusion merely reflects the reluctance of courts to charge plaintiffs who had no indication that they were victimized by a tortfeasor with knowledge of what the Supreme Court characterized over forty-five years ago as the “unknown and inherently unknowable.” Urie, 337 U.S. at 169, 69 S.Ct. at 1024. Albertson’s case is different from these typical cases in which the discovery rule is applied. Albertson knew both that he was injured and the cause of his injury at the time of the injury in 1969. After his last exposure to the TCE, Albertson lost consciousness, was administered minor medical care, and endured an excruciating headache for the duration of the voyage. He informed his superiors that he would not apply the TCE again, indicating his awareness of the cause of his injury. His medical condition was so severe after he returned to land that he was soon thereafter decertified as being fit for sea duty, and he never served on board a vessel again. These facts make clear that Albert-son’s is not a pure latent injury case. The discovery rule cannot justify his failure to file suit for over twelve years. 2. The Traumatic Event/Latent Manifestation Case We find Albertson’s case is more appropriately analyzed as a traumatic event/latent manifestation case. A traumatic event/latent manifestation case is one in which the plaintiff" }, { "docid": "981770", "title": "", "text": "the time of her death. Joiner’s maternal uncle also died of lung cancer. Since 1973, Joiner has worked for the City of Thomasville, Georgia (“City”) in the City’s Water & Light Department. For the last seven to eight years, Joiner has held the title of Chief Electrician. As an incident of his job Joiner has frequently worked with and around the City’s electrical transformers and voltage regulators. Joiner testified that work on electrical transformers consumed 40 to 50% of his time, while work on voltage regulators took 1% of his time. As a rule, a transformer is filled with a “dielectric fluid” that both cools and insulates the mechanism inside the transformer. This fluid typically has been a petroleum-based, flammable mineral oil. However, transformers filled with flammable mineral oil present a fire hazard when used in certain locations. Relatively early in this century a fire-resistant dielectric fluid was developed that did not contain mineral oil. Polychlorinated biphenyls (“PCBs”), a man-made chemical, were one component of the fire-resistant fluid. However, the PCB-based dielectric fluid was never widely used; “[t]he EPA has estimated that less than two-tenths of a percent (0.2%) of all utility transformers were PCB transformers. See 47 Fed.Reg. 17426, 17428 (1982), ‘Polychlorinated Biphenyls (PCBs): Use in Electrical Equipment.’ ” (Defendants’ Joint Memorandum in Supp. of Summ.Judg. [“Defendants’ Brief’] at 6.) With limited exceptions, Congress banned the production and sale of PCBs on January 1, 1978. 15 U.S.C. § 2605(e)(2)(A). Congress took this action because in its view PCBs “present an unreasonable risk of injury to health or the environment.” See 15 U.S.C. § 2605(a). Monsanto manufactured PCBs from 1935 to 1977. General Electric Company (“GE”) and Westinghouse Electric Corporation (“Westinghouse”) manufacture both transformers and fire-resistant fluid. From the 1930s to the 1970s, both GE and Westinghouse marketed fire-resistant fluid containing PCBs; GE’s product carried the trade name “Pyranol,” while Westinghouse’s carried the trade name “Inerteen.” Throughout the time of Plaintiffs employment, all of the City’s transformers have used mineral oil-based dielectric fluid, which should be free of PCBs. However, beginning in 1983, the City discovered, via systematic testing, that" }, { "docid": "22940944", "title": "", "text": "us to apply the discovery rule to toll the-Jones Act statute of limitations. Although he acknowledges he suffered headaches, blackouts, and nausea immediately after being exposed to the TCE and that he knew his exposure to the TCE caused these problems, Albertson argues that latent and allegedly much more severe injuries to his brain, liver, and skin were discovered long after the statutory limitations period had expired. He argues that the discovery rule was designed to preserve claims such as his. Stevenson answers that the time of event rule rather than the discovery rule applies in this case, since Albertson knew his legally protected interest had been invaded the moment he was first harmed by his exposure to TCE, the moment he experienced his first debilitating headache or blackout. Stevenson asserts that Albertson at that time had sufficient notice that a tort had been committed upon him. Stevenson argues that the mere fact Albertson’s injuries were more severe than originally thought is not controlling, since a plaintiff cannot delay filing suit until the full extent of his injuries becomes known. Our task is to determine when Albertson became aware of or had a reasonable opportunity to discover the critical facts of his injury and its cause. DuBose, 729 F.2d at 1030. The cases examined fall into two general categories: the pure latent injury case and the traumatic event/latent manifestation case. 1. The Pure Latent Injury Case The pure latent injury case ordinarily arises in one of three situations: a suit by a worker who contracts an occupational disease, a medical malpractice suit by a patient who discovers an injury long after the negligent medical treatment has been administered, or a product liability suit by a consumer of a drug or other medically related product who discovers a side effect from the use of the defendant’s product. In each of the pure latent injury cases, the plaintiff fails to discover either the injury or its cause until long after the negligent act occurred. The discovery rule was initially articulated and has had its greatest acceptance in the occupational disease case. Because" }, { "docid": "10131273", "title": "", "text": "the light of the evidence, fairly and adequately submits the issues in the ease to the jury.” In re Merritt Logan, Inc., 901 F.2d 349, 359 (3d Cir.1990) (quoting Ayoub v. Spencer, 550 F.2d 164, 167 (3d Cir.1977)). In evaluating whether the district court satisfied this requirement, we must examine the charge in its entirety and not limit ourselves to particular phrases in isolation. See Coyle, 63 F.3d at 1245. A. The Medical Monitoring Claim Instructions The jury rejected the plaintiffs’ medical monitoring claims, and plaintiffs now contend that the district court erred when it instructed the jury that, in order to find for plaintiffs, they must conclude that the plaintiffs had been exposed to a greater level of PCBs as a result of the activities at the Yard than they would encounter normally in their day-to-day lives. In order to evaluate this contention, we . must first provide some context. In Paoli I, 916 F.2d at 852, this Court addressed the predicament of persons who are exposed to toxic chemicals but do not suffer from manifest physical injuries. We noted that when these persons suffer instead from latent injuries, common law tort doctrine has often barred recovery because, traditionally, “injury needed to be manifest before it could be compensable,” and toxic torts often fail to conform “with the common law conception of injury.” Id. at 850. In an effort to accommodate the potential injuries associated with the widespread use of toxic substances, we predicted that the Pennsylvania Supreme Court would recognize medical monitoring claims by plaintiffs who have been exposed to toxic substances but have not suffered manifest physical injuries, and would authorize a plaintiff to recover the “quantifiable costs of periodic medical examinations necessary to detect the onset of physical harm.” Id. at 852. We noted that medical monitoring and traditional tort claims are inherently distinct causes of action, and that, once an injury is manifest and detected, a plaintiff who has pursued a medical monitoring claim may also have a traditional tort action against the same defendant for the injury itself. Id. at 850 n. 24. 1." }, { "docid": "22185208", "title": "", "text": "Because it bears on the question of what evidence is admissible, we turn first to the viability of certain plaintiffs’ “medical surveillance,” or “medical monitoring,” claims, by which plaintiffs sought to recover the costs of periodic medical examinations that they contend are medically necessary to protect against the exacerbation of latent diseases brought about by exposure to PCBs. Neither the Pennsylvania Supreme Court nor the Pennsylvania Superior Court has decided whether a demonstrated need for medical monitoring creates a valid cause of action. Therefore, sitting in diversity, we must predict whether the Pennsylvania Supreme Court would recognize.a claim for medical monitoring under the substantive law of Pennsylvania and, if so, what its elements are. See Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). Medical monitoring is one of a growing number of non-traditional torts that have developed in the common law to compensate plaintiffs who have been exposed to various toxic substances. Often, the dis eases or injuries caused by this exposure are latent. This latency leads to problems when the claims are analyzed under traditional common law tort doctrine because, traditionally, injury needed to be manifest before it could be compensable. Thus, plaintiffs have encountered barriers to recovery which “arise from the failure of toxic torts to conform with the common law conception of an injury.” Note, Medical Surveillance Damages, supra note 21, at 852. Nonetheless, in an effort to accommodate a society with an increasing awareness of the danger and potential injury caused by the widespread use of toxic substances, courts have begun to recognize claims like medical monitoring, which can allow plaintiffs some relief even absent present manifestations of physical injury. More specifically, in the toxic tort context, courts have allowed plaintiffs to recover for emotional distress suffered because of the fear of contracting a toxic exposure disease, see, e.g., Sterling v. Velsicol Chemical Corp., 855 F.2d 1188, 1206 (6th Cir.1988) (applying Tennessee law), the increased risk of future harm, see generally Note, Decreasing the Risks Inherent in Claims for Increased Risk of Future Disease, 43 U.Miami L.Rev. 1081 (1989)," }, { "docid": "22940950", "title": "", "text": "at 1024. Albertson’s case is different from these typical cases in which the discovery rule is applied. Albertson knew both that he was injured and the cause of his injury at the time of the injury in 1969. After his last exposure to the TCE, Albertson lost consciousness, was administered minor medical care, and endured an excruciating headache for the duration of the voyage. He informed his superiors that he would not apply the TCE again, indicating his awareness of the cause of his injury. His medical condition was so severe after he returned to land that he was soon thereafter decertified as being fit for sea duty, and he never served on board a vessel again. These facts make clear that Albert-son’s is not a pure latent injury case. The discovery rule cannot justify his failure to file suit for over twelve years. 2. The Traumatic Event/Latent Manifestation Case We find Albertson’s case is more appropriately analyzed as a traumatic event/latent manifestation case. A traumatic event/latent manifestation case is one in which the plaintiff has sustained both immediate and latent injuries caused by a noticeable, traumatic occurrence. At the time of the traumatic event, the plaintiff realizes both that he is injured and what is responsible for causing the injury. The full extent of the harm, however, has not become manifest. In Beech v. United States, 345 F.2d 872 (5th Cir.1965), we addressed the issue of whether a claim accrued under the FTCA at the time the plaintiff in that case realized the seriousness of her injuries or at the time the immediate, though lesser, effects of the tort were manifest. The plaintiff in Beech slipped and fell on the floor of a government building. She immediately experienced considerable pain, and the pain continued for a period of two or three months. X-rays taken after the fall and during the months thereafter revealed no fracture. Approximately eighteen months after the accident, however, the plaintiffs pain recurred at a more intense level. Medical examinations revealed that the plaintiff had sustained an irreparable injury which would render her totally disabled. She" }, { "docid": "7332164", "title": "", "text": "preserve each claim independently.” Id. 95 S.Ct. at 1723. Because the plaintiff faced no barriers to filing his section 1981 action at any time after his cause of action accrued, the Court noted that “in a very real sense, [plaintiff] has slept on his § 1981 rights” by not filing during the pendency of the EEOC proceedings. Id. We are arguably presented with a closer question than that addressed by the Supreme Court in Johnson, as the present case involves mutually exclusive claims for relief. However, we do not think that a different result should attend where the error in choosing appropriate relief lies with the plaintiff; moreover, the plaintiff could have filed a timely, protective Jones Act claim. At some point, the right to be free of stale claims comes to prevail over the right to prosecute them. See American Pipe, supra, 94 S.Ct. at 766. We reject Wilson’s arguments for equitable tolling by virtue of her LHWCA claim. 2. Discovery rule Wilson argues, alternatively, that the “discovery rule” should be applied, and that the district court erred by not allowing the jury to decide when she discovered her injury. One of the leading eases in this Circuit on limitations analysis in Jones Act cases is Albertson v. T.J. Stevenson & Company, Inc., 749 F.2d 223 (5th Cir.1984). In Albertson, this Court held that in most personal injury cases the “time-of-event rule” should be applied, in which ease the limitations period runs from the time of the injury. Id. at 229. If, however, the plaintiff has sustained “a latent injury which either is not or cannot be discovered until long after the tortious act that caused the injury has occurred ... courts have routinely applied the so-called discovery rule....” Id. In seeking to establish a clear framework for limitations analysis, the Albertson court distinguished two types of latent injury cases: pure latent injury cases, in which the plaintiff is not even aware of the injury until much later; and traumatic event/latent manifestation cases, in which the plaintiff sustains both immediate and latent injuries caused by a noticeable, traumatic event." }, { "docid": "7332165", "title": "", "text": "the district court erred by not allowing the jury to decide when she discovered her injury. One of the leading eases in this Circuit on limitations analysis in Jones Act cases is Albertson v. T.J. Stevenson & Company, Inc., 749 F.2d 223 (5th Cir.1984). In Albertson, this Court held that in most personal injury cases the “time-of-event rule” should be applied, in which ease the limitations period runs from the time of the injury. Id. at 229. If, however, the plaintiff has sustained “a latent injury which either is not or cannot be discovered until long after the tortious act that caused the injury has occurred ... courts have routinely applied the so-called discovery rule....” Id. In seeking to establish a clear framework for limitations analysis, the Albertson court distinguished two types of latent injury cases: pure latent injury cases, in which the plaintiff is not even aware of the injury until much later; and traumatic event/latent manifestation cases, in which the plaintiff sustains both immediate and latent injuries caused by a noticeable, traumatic event. Id. at 229-31. The discovery rule applies only to the former type. Id. at 232 n. 8. See also Armstrong v. Trico Marine, Inc., 923 F.2d 55, 58 (5th Cir.1991). Thus Wilson argues, as she must, that her injury was a pure latent injury. We find Wilson’s argument for application of the discovery rule to be without merit. The law in this circuit requires application of the time-of-event rule “whenever the plaintiff is aware of or has had reasonable opportunity to discover ‘the critical facts of [the] injury and its cause.’ ” Clay v. Union Carbide Corp., 828 F.2d 1103, 1106 (5th Cir.1987) (quoting Albertson, 749 F.2d at 233). See also Crisman v. Odeco, Inc., 932 F.2d 413, 415-16 (5th Cir.1991). If Wilson was harassed, she was certainly aware of it. In fact, she demonstrated such an awareness by filing an EEOC complaint in March 1984, and a Title VII suit in October 1984. Although she was not formally diagnosed as having “post-traumatic stress disorder” until October 1984, testimony adduced at trial indicated that Wilson" }, { "docid": "13199060", "title": "", "text": "required as a matter of law before the plaintiffs could recover for fear of future harm, i.e., emotional distress, and increased risk of future harm. The plaintiffs responded that Pennsylvania law only required “some physical injury or some medically-identifiable effect.” Since they could demonstrate that they had PCBs in their bodies, the plaintiffs argued that they had established a “medically-identifiable effect” and therefore should not be barred from recovering for their fear of future harm. They additionally contended that the defendants’ summary judgment motion regarding their claim for increased risk of future harm should also be denied since it was one of their medical experts opinion that PCBs could cause cancer of the liver and other diseases. In re Paoli, 706 F.Supp. at 375. In response to these contentions, the Court stated: I believe that to make out a case the plaintiffs would need to prove four elements: 1) that defendants released PCBs into the environment; 2) that plaintiffs somehow ingested these PCBs into their bodies; 3) that plaintiffs have an injury; 4) that PCBs are the cause of that injury. Regarding the third issue, plaintiffs must point to some health problem that they have or they are out of court under Pennsylvania law. If the best they can do is possibility of future harm, fear of future harm, emotional distress, or the mere fact that they have PCBs in their body, then those plaintiffs cannot recover. The expert testimony we have regarding the possibility of future harm is insufficient for the Pennsylvania Supreme Court. Id. (emphasis added). There are numerous relevant decisions which this Court finds persuasive that have either specifically or implicitly held that the exposure to toxic substances is not a physical injury upon which emotional distress damages may be recovered. Such decisions include the following: Adams v. Johns-Manville Sales Corp., 783 F.2d 589 (5th Cir.1986) (Court noting that plaintiffs claim for mental anguish damages failed under Louisiana law because he failed to establish that he sustained an injury resulting from his exposure to asbestos products); Eagle-Picher Industries, Inc. v. Cox, 481 So.2d 517 (Fla.Dist.Ct.App.1985) (Court finding" }, { "docid": "23052726", "title": "", "text": "of our opinion in Paoli, and additional arguments, we will reverse and remand. I. FACTS AND BACKGROUND Since 1964, Hines has been employed as a railway laborer, which included occasional work in the Paoli railyard. From 1964 to 1976 he was employed by the Pennsylvania Railroad and its successor, Penn Central; since 1976, by Conrail. Hines’ work consisted primarily of maintaining railroad tracks both manually and with a regulator that sweeps material from the tracks and ties. During this time, Hines worked, ate, and slept in railyards and camps. In June, 1987, Hines was diagnosed as having bladder cancer. In addition, he developed chronic obstructive and restrictive lung disease and a number of other medical problems. Hines contended that his injuries were due to his exposure to PCBs and other toxic chemicals during his work in railyards even though he had had only limited contact with the Paoli railyard. Shubin stated that this exposure resulted from the PCBs that were used as dielectric fluid in railroad car transformers and those that leaked onto track beds. Shubin also stated that Hines was affected by his inhalation of heavy dust contaminated with PCBs while he was operating a regulator. In general, then, Hines alleged that his injuries were the direct result of his employer’s negligence in exposing him to PCBs from 1964 to the present and in failing to warn him of the presence of PCBs and their risks to his health. Hines and the Paoli plaintiffs had comparable backgrounds. The Paoli plaintiffs claimed that their exposure to PCBs had resulted from having worked or resided near the Paoli railyard. Since the 1930s, the railyard, a regional maintenance facility for different rail companies, stored and disposed of PCBs that were used as dielectric fluid in the transformers on railroad cars. Thus, because PCBs have been used in the Paoli railcar transformers for decades, they “can be found in extremely high concentration at the railyard and in the ambient air and soil.” Paoli, 916 F.2d at 835. The five Paoli defendants were Monsanto Corporation, which is the country’s leading manufacturer of PCBs; General" }, { "docid": "981771", "title": "", "text": "widely used; “[t]he EPA has estimated that less than two-tenths of a percent (0.2%) of all utility transformers were PCB transformers. See 47 Fed.Reg. 17426, 17428 (1982), ‘Polychlorinated Biphenyls (PCBs): Use in Electrical Equipment.’ ” (Defendants’ Joint Memorandum in Supp. of Summ.Judg. [“Defendants’ Brief’] at 6.) With limited exceptions, Congress banned the production and sale of PCBs on January 1, 1978. 15 U.S.C. § 2605(e)(2)(A). Congress took this action because in its view PCBs “present an unreasonable risk of injury to health or the environment.” See 15 U.S.C. § 2605(a). Monsanto manufactured PCBs from 1935 to 1977. General Electric Company (“GE”) and Westinghouse Electric Corporation (“Westinghouse”) manufacture both transformers and fire-resistant fluid. From the 1930s to the 1970s, both GE and Westinghouse marketed fire-resistant fluid containing PCBs; GE’s product carried the trade name “Pyranol,” while Westinghouse’s carried the trade name “Inerteen.” Throughout the time of Plaintiffs employment, all of the City’s transformers have used mineral oil-based dielectric fluid, which should be free of PCBs. However, beginning in 1983, the City discovered, via systematic testing, that the dielectric fluid in some of its transformers was contaminated with PCBs. From 1983 to 1993, the City tested approximately 2,668 of its transformers. Approximately half of the transformers tested showed PCB contamination. However, the EPA considers any transformer that contains PCBs at a level less than 50 ppm to be a “non-PCB transformer” which is not subject to regulation. 40 C.F.R. § 761.3 (1993). Of all the transformers tested, about 2.5% contained levels of PCBs above 500 parts per million (“ppm”), while about 16.7% contained levels above 50 ppm. Thus, almost one out of every five (i.e., 19.2%) of the transformers the City tested presented a PCB hazard. When a transformer was in need of repair, it was ... Joiner’s duty to open it up, drain out the dielectric fluid, bake the core of the transformer dry of dielectric fluid, make repairs which were within his skills, refill the transformer with fresh mineral oil dielectric fluid, and then test the transformer for proper operation. The process of repairing transformers required that ... Joiner stick" }, { "docid": "22254890", "title": "", "text": "statement in their brief: “Dr. Brubaker would have proffered testimony that exposure via inhalation to these emanating odors consisting of the alleged volatile organic chemicals and other toxic substances may account for the frequent and severe health problems suffered by the plaintiffs.” (emphasis added). The instant situation is thus significantly different from the tendered toxicology expert in In Re Paoli. There, the toxicolo gist proposed to establish a causal relationship between exposure to PCB’s and the plaintiffs’ illnesses by using the results of tests of the plaintiffs’ blood as well as comparison with the medical and clinical records of the plaintiffs. In Re Paoli, 916 F.2d at 839. No such personal examination or study of the plaintiffs occurred in the instant case. Although the district court should not have excluded Brubaker for the reason given, the exclusion will be affirmed on the grounds that the plaintiffs did not establish that Brubaker had the requisite expert credentials in his field nor the proper foundation in this case to proffer an expert opinion as to the cause of the plaintiffs' illnesses. An expert witness who may be qualified to attest to the toxicity of various substances nevertheless may be excluded when the expert possesses no firsthand knowledge connecting the hazardous substances to the particular grievances and symptoms of the plaintiffs. C. Damages for Personal Injury The district court ruled on October 25, 1984, that the plaintiffs could not recover damages for alleged personal injuries due to exposure to the toxic waste under RICO, but that only damages to business or property would be compensable. Because the court permitted the RICO claims against the Oliveris to go to the jury which returned an award of $3,000, we must determine under plenary review whether such a limitation on damages was correct. In addition to economic harm occasioned by the loss of the market value of their homes, the plaintiffs sought relief under RICO for manifest and latent injuries to physical and mental health, including emotional distress resulting from the fear of developing cancer. The plaintiffs also requested medical expenses incurred for treatment of illnesses" }, { "docid": "23052727", "title": "", "text": "Shubin also stated that Hines was affected by his inhalation of heavy dust contaminated with PCBs while he was operating a regulator. In general, then, Hines alleged that his injuries were the direct result of his employer’s negligence in exposing him to PCBs from 1964 to the present and in failing to warn him of the presence of PCBs and their risks to his health. Hines and the Paoli plaintiffs had comparable backgrounds. The Paoli plaintiffs claimed that their exposure to PCBs had resulted from having worked or resided near the Paoli railyard. Since the 1930s, the railyard, a regional maintenance facility for different rail companies, stored and disposed of PCBs that were used as dielectric fluid in the transformers on railroad cars. Thus, because PCBs have been used in the Paoli railcar transformers for decades, they “can be found in extremely high concentration at the railyard and in the ambient air and soil.” Paoli, 916 F.2d at 835. The five Paoli defendants were Monsanto Corporation, which is the country’s leading manufacturer of PCBs; General Electric Company, which manufactures the transformers; Amtrak, which owned the railyard since 1976; Conrail, which operated the railyard between 1976 and 1983; the Southeastern Pennsylvania Transit Authority, which has operated the railyard since 1983; and the City of Philadelphia, which owns some of the facility’s railroad cars. The parallels between Paoli and this case will be analyzed with respect to the requirements of Fed.R.Evid. 702, 703, and 403, and the more liberal standards of negligence and causation set forth under FELA. Although there were two FELA cases in Paoli, the FELA standard was not addressed. We emphasize that in the absence of a district court opinion, much of our discussion is based upon our projection of what the district court might have held had it followed its Paoli rationale. II. OVERVIEW OF THE SUBMITTED EVIDENCE A. Evidence Submitted in Paoli In order to demonstrate that their personal injuries were attributed to their exposure to the PCBs in the Paoli railyard, the Paoli plaintiffs introduced, in addition to Shubin, a total of eight expert witnesses: Herbert" }, { "docid": "12098886", "title": "", "text": "applies “if some injury is discernable when the tortious act occurs.” Albertson v. T.J. Stevenson & Co., 749 F.2d 223, 229 (5th Cir.1984). Under this rule, the cause of action accrues when the harmful event occurs. The “Discovery Rule” applies when the plaintiff has sustained “a latent injury which either is not or cannot be discovered until long after the tortious act that caused the injury has occurred.” Id. Under this rule, the cause of action accrues “on the date the plaintiff discovers, or reasonably should have discovered, both the injury and its cause.” Id. The Discovery Rule applies only to “pure latent injury” cases: cases in which “the plaintiff fails to discover either the injury or its cause until long after the negligent act occurred.” Id. at 230. If the plaintiff “has sustained both immediate and latent injuries caused by a noticeable, traumatic occurrence,” id. at 231, he has a “traumatic event/latent manifestation” case and the Time of Event Rule applies. See Clay v. Union Carbide Corp., 828 F.2d 1103, 1106 (5th Cir.1987). In a traumatic event/latent manifestation case, “the plaintiff realizes both that he is injured and what is responsible for causing the injury. The full extent of the harm, however, has not become manifest.” Albertson, 749 F.2d at 231. This case fits within the “traumatic event/latent manifestation” rule. Armstrong admitted experiencing psychological problems shortly after his frightening experience aboard the TELLICO RIVER during Hurricane Juan. He associated his problems with that traumatic event. Although the problems subsided when he moved to Oregon and became more severe when he renewed his employment with Trico, Armstrong knew he was injured in 1985. The district court correctly determined that Armstrong’s Jones Act and general maritime claims were time barred. For the foregoing reasons, we affirm the district court’s dismissal of Armstrong’s Jones Act and general maritime law claims. We remand for further consideration Armstrong’s claim against Trico for maintenance and cure. AFFIRMED in part and REMANDED. . The judgment reads, in relevant part: For the reasons set forth in the Court's Order and Reasons dated January 31, 1990; accordingly, IT" }, { "docid": "10131274", "title": "", "text": "from manifest physical injuries. We noted that when these persons suffer instead from latent injuries, common law tort doctrine has often barred recovery because, traditionally, “injury needed to be manifest before it could be compensable,” and toxic torts often fail to conform “with the common law conception of injury.” Id. at 850. In an effort to accommodate the potential injuries associated with the widespread use of toxic substances, we predicted that the Pennsylvania Supreme Court would recognize medical monitoring claims by plaintiffs who have been exposed to toxic substances but have not suffered manifest physical injuries, and would authorize a plaintiff to recover the “quantifiable costs of periodic medical examinations necessary to detect the onset of physical harm.” Id. at 852. We noted that medical monitoring and traditional tort claims are inherently distinct causes of action, and that, once an injury is manifest and detected, a plaintiff who has pursued a medical monitoring claim may also have a traditional tort action against the same defendant for the injury itself. Id. at 850 n. 24. 1. In Paoli I, we also set forth the elements we understand to be necessary to a successful medical monitoring claim under Pennsylvania law: 1. Plaintiff was significantly exposed to a proven hazardous substance through the negligent actions of the defendants. 2. As a proximate result of exposure, plaintiff suffers a significantly increased risk of contracting a serious latent disease. 3. The increased risk makes periodic examinations reasonably necessary. 4. Monitoring and testing procedures exist which make the early detection and treatment of the disease possible and beneficial. Id. at 852. The first hurdle for a plaintiff pursuing of a medical monitoring claim is the need to demonstrate “significant exposure” to a proven hazardous substance. In the ease at bar, the jury determined that the plaintiffs had not been significantly exposed to PCBs, and therefore could not satisfy even the first of the four factors necessary to a successful claim. As a result, we need only concern ourselves here with the jury charge as it relates to the definition of “significant exposure.” 2. The district court" }, { "docid": "20070161", "title": "", "text": "lawsuit until April 23, 1986, plaintiff’s action, if it is to survive, must have commenced sometime after April 22, 1984. If his entire action accrued on the date of the incident, April 18, it will be barred. As we noted in our previous memoranda and orders in this case, for the purpose of commencing a limitations period Illinois courts generally draw a distinction between personal injuries from sudden traumatic events, like a fall, and injuries which gradually manifest themselves over time. Compare Lofton, v. General Motors Corporation, 694 F.2d 514 (7th Cir.1982) (fall on pavement while adjusting bus mirror) with Nolan, supra (exposure to asbestos). Internal injuries from inhaling toxic fumes can fall into either category, depending on whether the circumstances show that plaintiff should have known at once that there was a compensable injury, i.e., whether plaintiff knew or should have known that he suffered an injury, and also knew or should have known that it was wrongfully caused by defendant. McDonald v. Reichold Chemicals, Inc., 133 Ill.App.2d 780, 274 N.E.2d 121 (3d Dist.1971); Wigginton v. Reichold Chemicals, Inc., 133 Ill.App.2d 776, 274 N.E.2d 118 (3d Dist.1971). The distinction between sudden traumatic injury and injury in the form of latent occupational diseases is important because' where a plaintiff suffers from a sudden traumatic event, usually encompassing external violence, a reasonable person would know that there is a compensable injury from the time of the event. See, e.g., Pszenny v. General Electric Co., 132 Ill.App.3d 964, 478 N.E.2d 485, 88 Ill.Dec. 170 (1st Dist.1985). Since plaintiffs lung injury resulted from a traumatic event, we do not apply the discovery rule. We do not think that plaintiff has genuinely disputed that he knew of the injury which led to his April 20-23, 1984 hospitalization, and that it was a likely result of the April 18 incident which exposed him to the isocyanate fumes. While he testified that the doctors never informed him of the diagnosis of chemical pneumonitis, plaintiff admitted that he thought there was a relationship between the incident and the injury to his lungs (pi. dep. at 210-12, 217)" } ]

[ { "docid": "22624175", "title": "", "text": "imply that degree of malice in an act of the nature under consideration, which is sufficient to bring it within the exception mentioned. In In re Freche, (U. S. District Court, District of New Jersey, 1901) 109 Fed. Rep. 620, it was held that a judgment for the father in an action to recover damages for the seduction of his daughter was for a willful and malicious injury to the person and property of another, within the meaning of section 17 of the bankrupt act, and was not released by a discharge in bankruptcy. Kirkpatrick, District Judge, in the course of his opinion, said: “ From the nature of the case, the act of the defendant Freche which caused the injury was willful, because it was voluntary. The act was unlawful, wrongful and tortious, and, being willfully done, it was, in law, malicious. It was malicious because the injurious consequences which followed the wrongful act were those which might naturally be expected to result from it, and which the defendant Freche must be presumed to have had in mind when he committed the offence. ‘Malice/ in law, simply means a depraved inclination on the part of a person to disregard the rights of others, which intent is mani fested by his injurious acts. While it.may be true that in his unlawful act Freehe was not actuated by hatred or revenge or. passion towards the plaintiff, nevertheless, if he acted wantonly against what any man of reasonable intelligence must have known to be contrary to his duty, and purposely prejudicial and injurious to another, the law will imply malice.” In Leicester v. Hoadley, (Supreme Court of Kansas, 1903) 71 Pac. Rep. 318, it was held that a judgment obtained by a wife against another woman for damages sustained by the wife by reason of the alienation of the affections of her husband is not released by the discharge of the judgment debtor under proceedings in bankruptcy, where such alienation has been accomplished by schemes and devices of the judgment debtor, and resulted in the loss óf support and impairment of health" } ]

[ { "docid": "18797748", "title": "", "text": "the plaintiff’s alibi witnesses that “[e]ach ... came to my office independently.... Neither of these witnesses ... has any more than a casual relationship with the defendant. Each seemed sincere and accurate in his account of the events of the night in question and placed the defendant far from the scene of the crime.” C. Legal Standards for Nondischarge-ability of a Debt In order to determine whether the injury the plaintiff sustained is a “willful and malicious” injury of the kind contemplated by § 523(a)(6), the creditor must prove the debtor’s conduct was malicious as well as willful. See In re McCloud, 7 B.R. 819, 823 (Bkrtcy.M.D.Tenn.1980); In re Hawkins, 6 B.R. 97, 99 (Bkrtcy.W.D.Ky.1980). The Supreme Court in Tinker v. Colwell, 193 U.S. 473, 24 S.Ct. 505, 48 L.Ed. 754 (1904), provides a definition of “malicious injury”. Tinker involved a state court judgment against a bankrupt for damages arising from criminal conversation with the plaintiff’s wife. At issue was whether the bankrupt’s acts were based upon a willful and malicious injury to the plaintiff’s property rights and thus nondischargeable under Section 17(a)(2) of the Bankruptcy Act of 1898. The Supreme Court in Tinker found that earlier Supreme Court decisions had not defined malice in terms of hatred or ill-will toward an injured party, but had implied malice from a showing of an unlawful, wrongful and tortious act done intentionally and without justification or excuse. Id. at 485. For the purpose of Section 17(a)(2), the Supreme Court concluded: [W]e think a willful disregard of what one knows to be his duty, an act which is against good morals and wrongful in and of itself, and which necessarily causes injury and is done intentionally, may be said to be done willfully and maliciously, so as to come within the exception. Id. at 487, 24 S.Ct. at 509. The legislative history of the Bankruptcy Code reflects that Congress clearly intended to provide a standard of intentional and deliberate conduct, not merely reckless conduct, in promulgating Section 523(a)(6). H.R.Rep. No. 595, 95th Cong., 1st Sess. 308, 363 (1977); S.Rep. No. 989, 95th Cong.," }, { "docid": "5991188", "title": "", "text": "Bankruptcy, 15th ed., Section 523.16, 523-114. Under the new Code, the “reckless disregard” definition of “willful” injury enunciated in Tinker v. Colwell, 193 U.S. 473, 24 S.Ct. 505, 48 L.Ed. 754 (1904), has been expressly overruled, and a debt is now nondischargeable on the grounds of conversion only if the creditor shows that the property was deliberately or intentionally converted in a malicious manner. H.R.Rep. No.95-595, 95th Cong., 1st Sess. 363 (1977); S.Rep.No.95-989, 95th Cong., 2nd Sess. 77-79 (1978), U.S.Code Cong. & Admin.News 1978, p. 5787. The new Bankruptcy Code did not, however, statutorily alter the common law definition of “malicious.” Nothing in the legislative history of § 523(a)(6), however, suggests that the Congress intended to overrule the Tinker Court’s interpretation of the term “malicious” as it appeared in the prior statute, and this court declines to imply such an intention. It is this court’s opinion, therefore, that the proper definition of the term “malicious” for the purpose of § 523(a)(6) is the common-law definition that was approved and adopted by the Court in Tinker. If an act of conversion is done deliberately and intentionally in knowing disregard of the rights of another, it falls within the statutory exclusion even though there may be an absence of special malice. In re McCloud, 7 B.R. 819, 3 C.B.C. 701, 709 (Bkrtcy.1980); see also, In re Auvenshine, 9 B.R. 772, 3 C.B.C. 946 (Bkrtcy.1981). An injury to an entity or property may be “a malicious injury within this provision if it was wrongful and without just cause or excessive, even in the absence of personal hatred, spite or ill will.” See Bennett v. W. T. Grant Co., 481 F.2d 664 (4th Cir. 1973). This Court believes that Fussell’s loan repayments were both willful and malicious and constituted an injury to U.V.B. Fussell acknowledged in his testimony at the trial that the loan repayments made from Agri-Service to himself did not improve the financial position of Agri-Service and that Agri-Service was suffering from a cash flow problem at the time that the loan repayments were made. Each of the loan repayments that Fussell" }, { "docid": "15508706", "title": "", "text": "be true under the new Act. See e. g., In re Auvenshine, 9 B.R. 772 (W.D.Mich.1981); In re McCloud, 7 B.R. 819 (M.D.Tenn.1980); In re Hawkins, 6 B.R 97 (W.D.Ky.1980); In re Hodges, 4 B.R. 513 (W.D.Va.1980). The central issue before the bankruptcy court was whether the bankrupt’s conversion of the secured grain was willful and malicious. The bankruptcy court reasoned that the new Bankruptcy Act requires a more stringent standard in dealing with the nondischargeability provision than was applicable under the old act. In Tinker v. Colwell, 193 U.S. 473, 24 S.Ct. 505, 48 L.Ed. 754 (1904), the Court held that a judgment against the bankrupt for damages arising from a criminal conversation with the plaintiff’s wife had been based upon a willful and malicious injury to the plaintiff’s property rights and thus, was not dischargeable in bankruptcy. The element of willfulness was not in issue in Tinker; the Court stated that the act had been intentional and voluntary and thus clearly had been willful for the purpose of the exception. The issue was whether the act was malicious. [W]e think a willful disregard of what one knows to be his duty, an act which is against good morals, and wrongful in and of itself, and which necessarily causes injury and is done intentionally, may be said to be done wilfully and maliciously, so as to come within the exception. Id. at 487, 24 S.Ct. at 509. From the above quoted language contained in Tinker, lower courts had held in cases involving automobile accidents that a “reckless disregard” to the rights of others came within the definition of willfulness. E. g., Haerynck v. Thompson, 228 F.2d 72, 74 (10th Cir. 1955); Harrison v. Donnelly, 153 F.2d 588, 591 (8th Cir. 1946). It is doubtful that Tinker was intended to be read so expansively. In any event, when the new Bankruptcy Code was enacted, Congress made it clear that such an interpretation was not warranted. Paragraph (6) excepts debts for willful and malicious injury by the debtor to another person or to the property of another person. Under this paragraph," }, { "docid": "23600986", "title": "", "text": "material and done with the necessary scienter as to the other Plaintiffs, which were reasonably relied upon to constitute fraud pursuant to § 523(a)(2)(A). 11 U.S.C. § 523(a)(6) The legislative history to this provision must be carefully scrutinized regarding this provision. The House Report is as follows: Paragraph (6) excepts debts for willful injury by the debtor to another person or to the property of another person. Under this paragraph, “willful” means deliberate or intentional. To the extent that Tinker v. Colwell, 193 U.S. 473 (1902) [24 S.Ct. 505, 48 L.Ed. 754, 11 Am.Bankr.Rep. 568], held that a looser standard is intended, and to the extent that other cases have relied on Tinker to apply a “reckless disregard” standard, they are overruled. H.R.Rep. 95-595, 95th Cong., 1st Sess. 365 (1977), U.S.Code Cong. & Admin.News 1978, pp. 6320-6321; Reprinted in 4 Nor-, ton Bankruptcy Law and Practice, Legislative History, § 523, p. 404 (Callaghan & Co. 1983). The legislative statements to this section add the following comment: 124 Cong.Rec., H11096 (Daily Ed. Sept. 28, 1978); S17412 (Daily Ed. Oct. 6, 1978); Reprinted in 4 Norton Bankruptcy Law and Practice, Legislative History, § 523, p. 404-405 (Callaghan & Co. 1983). Section 523(a)(6) adopts the position taken in the House bill and rejects the alternative suggested in the Senate amendment. The phrase “willful and malicious injury” covers a willful and malicious conversion. The legislative history of the Bankruptcy Code thus reflects that Congress clearly intended a standard of intentional and deliberate conduct and not merely a willful disregard or reckless conduct. The Supreme Court in Tinker v. Colwell, 193 U.S. 473, 24 S.Ct. 505, 48 L.Ed. 754 (1904), provided a definition of “malicious injury”. Tinker involved a state court action against a bankrupt for damages arising from criminal conversation with the plaintiff's wife. At issue was whether the bankrupt’s acts were willful and malicious injury to the plaintiff’s property rights and thus nondischargeable under § 17(a)(2) of the Bankruptcy Act of 1898. The Supreme Court in Tinker for the purposes of Section 17(a)(2) concluded: [W]e think a willful disregard of what one knows" }, { "docid": "17383853", "title": "", "text": "used.”) (citing Reiter v. Sonotone Corp., 442 U.S. 330, 339, 99 S.Ct. 2326, 2331, 60 L.Ed.2d 931 (1979)). Failure to do so could lead to unintended results. If all that is necessary to establish nondischargeability is to find that a defendant inflicted an intentional injury upon a plaintiff, then an intentional injury that the law justifiably excuses in other contexts would result in a nondischargeable debt in bankruptcy court. For example, a debtor could be held liable under § 523(a)(6) on account of an injury inflicted intentionally, but in self defense. Notwithstanding the Geiger Court’s focus upon the willfulness prong of the statute, this Court finds no indication in that discussion that it was the Supreme Court’s intention to write “malicious” out of the statute. See McAlister v. Slosberg (In re Slosberg), 225 B.R. 9, 20 (Bankr.D.Me.1998) (“In re Geiger should not be read to collapse the two elements into one.”). In Geiger, the Court’s finding that the debtor’s action was not willful made any discussion of the malice prong unnecessary. In Tinker v. Colwell, 193 U.S. 473, 24 S.Ct. 505, 48 L.Ed. 754 (1904), the Supreme Court discussed the concept of legal malice as it applies to the discharge exception for willful and malicious injury. That decision considered § 17(2) of the Bankruptcy Act of 1898, however, the relevant statutory language remains substantially unchanged in the current § 523(a)(6). In Geiger, Justice Ginsburg found the Tinker discussion to be “less than crystalline,” Geiger, 523 U.S. at 63, 118 S.Ct. at 978, at least with respect to the willfulness prong that the Geiger Court addressed. Nonetheless, the Tinker Court’s discussion of legal malice in the dischargeability context is somewhat more enlightening. That Court specifically approved the definition of a malicious act as a “wrongful act, done intentionally, without just cause or excuse.” Tinker, 193 U.S. at 486, 24 S.Ct. at 508 (quoting Bromage v. Prosser, 4 Barn. & C. 247). It also established the Supreme Court’s unwillingness to require a showing of actual spite or ill will on the part of a debtor toward the specific person injured by such" }, { "docid": "18797749", "title": "", "text": "property rights and thus nondischargeable under Section 17(a)(2) of the Bankruptcy Act of 1898. The Supreme Court in Tinker found that earlier Supreme Court decisions had not defined malice in terms of hatred or ill-will toward an injured party, but had implied malice from a showing of an unlawful, wrongful and tortious act done intentionally and without justification or excuse. Id. at 485. For the purpose of Section 17(a)(2), the Supreme Court concluded: [W]e think a willful disregard of what one knows to be his duty, an act which is against good morals and wrongful in and of itself, and which necessarily causes injury and is done intentionally, may be said to be done willfully and maliciously, so as to come within the exception. Id. at 487, 24 S.Ct. at 509. The legislative history of the Bankruptcy Code reflects that Congress clearly intended to provide a standard of intentional and deliberate conduct, not merely reckless conduct, in promulgating Section 523(a)(6). H.R.Rep. No. 595, 95th Cong., 1st Sess. 308, 363 (1977); S.Rep. No. 989, 95th Cong., 2nd Sess. 21, 77-79 (1978), reprinted in 1978 U.S.Code Cong. & Ad.News 5787, 5862-65, 6318-20. See also In re Glazer, 10 B.C.D. 178, 25 B.R. 329 (Bkrtcy.App. 9th Cir.1982); In re Friedenberg, 12 B.R. 901, 905 (Bkrtcy.S.D.N.Y.1981); In re McCloud, 7 B.R. at 825. The bankruptcy court in Friedenberg, relying on Tinker, declared that the law implies malice if anyone of reasonable intelligence knows that the act in question is contrary to commonly accepted duties in the ordinary relationships among people and injurious to another. The phrase willful and malicious injuries to the property of another in 11 U.S.C. § 523(a)(6) do[es] not necessarily connote ill-will or special malice. Friedenberg, 12 B.R. at 905. Thus, case law and Congressional intent clearly indicate that a deliberate and intentional act committed without just cause with injurious consequences ensuing constitutes the requisite degree of malice and willfulness under Section 523(a)(6). In the instant case, the injurious consequences are those which might naturally be expected to flow from the debtor’s fabrication of an assault. This debtor may be presumed" }, { "docid": "23009550", "title": "", "text": "conversion which is innocent or technical, an unauthorized assumption of dominion without wilfulness or malice.” Davis v. Aetna Acceptance Co., 293 U.S. 328, 332, 55 S.Ct. 151, 153, 79 L.Ed. 393, 397 (1934). Further, a conversion possessing the requisite willful 'and malicious characteristics may nevertheless be discharged where a secured creditor fails to take reasonable steps to protect its security interest in the collateral. Bennett v. W. T. Grant Co., 481 F.2d 664 (4th Cir. 1973). The conversion must be both willful and malicious. The term “willful” means deliberate or intentional. The legislative history to § 523(a)(6) indicates that the looser standard of “reckless disregard,” which had evolved through court interpretation of Bankruptcy Act § 17a(2), is not intended. S.Rep.No.95-989, 95th Cong., 2d Sess. 79 (1978); H.R.Rep.No.95-595, 95th Cong., 1st Sess. 365 (1977), U.S.Code Cong. & Admin.News, p. 5787. There is some question, however, as to whether the term “malicious” as used in Code § 523(a)(6) retains the same meaning as was ascribed to it under former § 17a(2). See Tinker v. Colwell, 193 U.S. 473, 24 S.Ct. 505, 48 L.Ed. 754 (1904); compare In re McCloud, 7 B.R. 819, 3 C.B.C.2d 701, [1978-1981 Transfer Binder] Bankr.L.Rep. (CCH) ¶ 67,818 (Bkrtcy.M.D.Tenn.1980) with In re Lewis, 17 B.R. 46 (Bkrtcy.W.D.Ark.1981). See also In re McGiboney, 8 B.R. 987 (Bkrtcy.N.D.Ala.1981). This court is persuaded by the analysis presented in McCloud, which adopted the looser Tinker common-law definition of implied or constructive malice, rather than the rigid standard of actual, subjective, conscious intent to harm as enunciated in Lewis. In re McGiboney, supra, in continuing to apply the Tinker concept of “willful and malicious” under Code § 523(a)(6), stated the problem as follows: Since willful and malicious are in the conjunctive both elements must be present. Willful means done with the will or intentionally, and not inadvertently or negligently. Malicious is not used in the sense of evil, personal ill will or hatred, but simply done consciously and knowingly wrongful, and without just cause or excuse. Intent to harm or injure is not required. Intent to do the wrongful act is sufficient and" }, { "docid": "18718086", "title": "", "text": "dischargeability of debts under § 523(a)(6) is the “reckless disregard” standard applied by many courts under § 17(a)(8) of the Bankruptcy Act of 1898 (the “Act”), and (2) that, even if § 523(a)(6) requires proof of intentional conduct, to make appellee’s debt nondischargeable, appellants need prove only that appellee intentionally drove his vehicle while under the influence of alcohol, and not that he intended to injure a person or property. A. Section 523(a)(6) excepts from discharge, in language almost identical to that of § 17(a)(8) of the Act, debts incurred for “willful and malicious injury” to the person or property of another. Section 17(a)(8) has been interpreted by many courts to include injuries arising from a willful disregard of the known rights of others. Other courts have required proof of an intent to injure in order to hold a debt nondis-chargeable. In re Callaway, 41 B.R. 341, 343 (Bankr.E.D.Pa.1984); In re Morgan, 22 B.R. 38, 39 (Bankr.D.Neb.1982); In re Bryson, 3 B.R. 593, 596 (Bankr.N.D.Ill.1980). This inconsistency has arisen from the varying interpretations placed upon the language and holding of Tinker v. Colwell, 193 U.S. 473 (1904). While the Supreme Court in Tinker purported to address only the “malicious” component of § 17(a)(8), stating that the tort of criminal conversation was “willful, of course”, id. at 485, the opinion contains a passage that has been widely relied upon in holding that “willful and malicious” under § 17(a)(8) includes a “reckless disregard” standard: “[W]e think a willful disregard of what one knows to be his duty, an act which is against good morals and wrongful in and of itself, and which necessarily causes injury and is done intentionally, may be said to be done willfully and maliciously, so as to come within the exception.” Id. at 487. Since courts have not interpreted § 17(a)(8) of the Act consistently, it is appropriate to consider the legislative history of § 523(a)(6) of the Code to determine how Congress intended “willful and malicious” as used in that provision to be interpreted. The legislative history makes clear that the “reckless disregard” standard applied by some" }, { "docid": "23009548", "title": "", "text": "owner.” 3 Collier on Bankruptcy ¶ 523.14 at 523-106 (15th ed. 1979); see also N.Y.Penal Law § 155.05 (McKinney 1975). An unlawful taking is the dominant characteristic of larceny. No proof here adduced suggests that defendant’s possession of the automobile was obtained through wrongful and unlawful means. Defendant acquired the ear lawfully by purchase from plaintiff. A larceny not having been established, plaintiff’s § 523(a)(4) claim must also fall. The § 523(a)(6) Claim Plaintiff further asks that its debt be determined nondischargeable as a “willful and malicious injury by the debtor” within the meaning of Code § 523(a)(6). A willful and malicious conversion of property subject to a security interest may give rise to the requisite willful and malicious injury. In re McCloud, 7 B.R. 819, 3 C.B.C.2d 701, [1978-1981 Transfer Binder] Bankr.L.Rep. (CCH) ¶ 67,818 (Bkrtcy.M.D.Tenn.1980); In re Auvenshine, 9 B.R. 772, 7 B.C.D. 511, 3 C.B.C.2d 946 (Bkrtcy.W.D.Mich.1981); In re Meyer, 7 B.R. 932, 3 C.B.C.2d 534, [1978-1981 Transfer Binder] Bankr.L.Rep. (CCH) ¶ 67,777 (Bkrtcy.N.D.Ill.1981); In re Giantvalley, 14 B.R. 457 (Bkrtcy.D.Nev.1981); In re Smith, 11 B.R. 20 (Bkrtcy.N.D.Ohio 1981); In re Obermeyer, 12 B.R. 26 (Bkrtcy.N.D.Ohio 1981). [T]he conversion of another’s property without his knowledge or consent, done intentionally and without justification and excuse, to the other’s injury, is a willful and malicious injury within the meaning of the exception. On the other hand; a technical conversion may very well lack any element of willfulness or maliciousness necessary to except the liability from discharge. 3 Collier on Bankruptcy ¶ 523.16 at 523-116-17 (15th ed. 1979). A claim founded on a mere technical conversion without conscious intent to violate the rights of another, and under mistake or misapprehension, is discharge-able. Id. at 523-123. Every act of conversion does not necessarily give rise to a nondischargeable willful and malicious injury under § 523(a)(6). See, e.g., In re Langer, 12 B.R. 957, 7 B.C.D. 1323 (D.N.D.1981); In re Hawkins, 6 B.R. 97, 6 B.C.D. 1054 (Bkrtcy.W.D.Ky.1980); In re Hodges, 4 B.R. 513, 6 B.C.D. 531, 2 C.B.C.2d 566, [1978-1981 Transfer Binder] Bankr.L.Rep. (CCH) ¶ 67,-678 (Bkrtcy.W.D.Va.1980). “There may be a" }, { "docid": "1470301", "title": "", "text": "the evidence that Bun-dick’s actions were willful and malicious. The Becketts allege in their complaint that Bundick knew that his conduct constituted an unlawful act and that his continued use of his property to conduct vehicle repairs constitutes a willful and malicious injury, thereby prohibiting discharge under the Bankruptcy Code. It remains for this Court to determine if the findings of fact from the State Court support a finding that Bundick’s actions were willful and malicious and therefore meet the requirements of § 523(a)(6). D. § 523(a)(6) Willful Injury Federal bankruptcy law has long excepted from discharge those debts arising from a “willful and malicious injury” to a party or a party’s property. Under § 17(a)(8) of the Code’s statutory predecessor, the Bankruptcy Act of 1898, this discharge exception was generally regarded to include some types of reckless behavior. In 1904, the United States Supreme Court construed “willful and malicious” under the former Bankruptcy Act to include situations where the debtor committed criminal conversation with the claimant’s wife, despite the absence of personal malovence toward the husband. Tinker v. Colwell, 193 U.S. 473, 485, 24 S.Ct. 505, 48 L.Ed. 754 (1904). Rather, the Court held that some acts which “necessarily impl[y] that degree of malice” make a debt nondis-chargeable. Id. The enactment of the Code in 1978 precipitated considerable debate among bankruptcy courts as to whether this implied malice standard survived the enactment of the new § 523(a)(6), despite the fact that very little language was altered from the former statute. Prior to 1998, many courts construed the scope of what constituted a willful and malicious injury quite broadly, prohibiting the discharge of debts resulting from any intentional act, regardless of whether the debtor ever subjectively intended the resulting injury. In Branch Banking & Trust Co. of Va., Inc. v. Powers (In re Powers), 227 B.R. 73 (Bankr.E.D.Va.1998), this Court explained the contours of § 523(a)(6) prior to 1998: When an act ... was done intentionally and produced harm without just cause or excuse, it was willful and malicious for purposes of § 523(a)(6), without proof of a specific intent" }, { "docid": "10243363", "title": "", "text": "and at that time the principal unpaid balance was $997.60.” Based upon the foregoing factual stipulations, it is clear that the only conceivable ground for nondischargeability of defendant’s indebtedness to plaintiff is that of willful and malicious injury to property (which includes conversion) under section 523(a)(6) of the Bankruptcy Code. Under the former Bankruptcy Act, this exception to discharge often proved to be one which the creditor could prove and thereby obtain a decree of nondischargeability of the bankrupt’s indebtedness to him. For, under the former law, “willful and malicious” had been given a meaning by case law which recognized the difficulties in proving subjective willfulness and malice. It was thus held that, “(i)n order to come within that meaning as a judgment for a wilful and malicious injury to person or property, it is not necessary that the cause of action be based upon special malice, so that without it the action could not be maintained.” Tinker v. Colwell, 193 U.S. 473, 24 S.Ct. 505, 48 L.Ed. 754 (1902). See also 1A Collier on Bankruptcy para. 17.17(1), pp. 1650.4, 1653, 1654 (1976), to the following effect: “An injury to person or property may be a malicious injury within this provision if it was wrongful and without just cause or excuse, even in the absence of personal hatred, spite or ill will. The word ‘wilful’ means nothing more than intentionally doing an act which necessarily leads to injury. Therefore, a wrongful act done intentionally, which necessarily produces harm and is without just cause or excuse, may constitute a willful and malicious injury .... Thus, the conversion of another’s property without his knowledge or consent, done intentionally and without justification and excuse, to the other’s injury, is a willful and malicious injury within the meaning of the exception.” The legislative history under section 523(a)(6) of the new Bankruptcy Code, however, expressly rejects these principles and the case law which asseverated them. “Under this paragraph, ‘willful’ means deliberate or intentional. To the extent that Tinker v. Colwell, 193 U.S. 473, 24 S.Ct. 505, 48 L.Ed. 754 (1902), held that a looser standard" }, { "docid": "22420589", "title": "", "text": "523(a)(6) must be shown to have been both willful and malicious. The term “willful” means deliberate or intentional. S.Rep.No.95-989, 95th Cong., 2d Sess. 79 (1978), U.S.Code Cong. & Admin.News 1978, p. 5787; H.R.Rep.No.95-595, 95th Cong., 1st Sess. 365 (1977), U.S.Code Cong. & Admin. News 1978, p. 5963. The proof in this proceeding clearly establishes that the debtor’s disposition of the Bank’s collateral was a willful act. The debtor testified that he had read the terms of the security agreements and that he fully had understood that he was obligated not to dispose of the Bank’s security without prior written consent. The debtor’s deliberate and intentional sale of the Bank’s security thus plainly falls within the scope of the willful act required by § 523(a)(6). In order to come within the exception provided by § 523(a)(6), a creditor must show that the debtor’s conduct was malicious as well as willful. Liberty Nat’l Bank & Trust Co. v. Hawkins, 6 B.R. 97, 6 Bankr.Ct.Dec. 1054 (Bkrtcy.W.D.Ky.1980); Grand Piano & Furniture Co. v. Hodges, supra. In order to apply the proper definition of the term “malicious,” the court initially must determine whether the Congress, by adopting § 523(a)(6), intended to effect a change in the definition of the same term that had been applicable under the prior Act. In Tinker v. Colwell, 193 U.S. 473, 24 S.Ct. 505, 48 L.Ed. 754 (1904), the United States Supreme Court concluded that a state-court judgment against the bankrupt for damages arising from a criminal conversation with the plaintiff’s wife had been based upon a willful and malicious injury to the plaintiff’s property rights and thus was not dischargeable in bankruptcy under § 17(a)(2) of the Bankruptcy Act of 1898. At issue in Tinker was not whether the bankrupt’s conduct had been willful; the Court stated that the act had been intentional and voluntary and thus clearly had been willful for the purpose of § 17(a)(2). 193 U.S. at 485, 24 S.Ct. at 508. At issue in Tinker was whether the bankrupt’s conduct had been malicious for the purpose of § 17(a)(2). The Court initially examined the" }, { "docid": "22420590", "title": "", "text": "apply the proper definition of the term “malicious,” the court initially must determine whether the Congress, by adopting § 523(a)(6), intended to effect a change in the definition of the same term that had been applicable under the prior Act. In Tinker v. Colwell, 193 U.S. 473, 24 S.Ct. 505, 48 L.Ed. 754 (1904), the United States Supreme Court concluded that a state-court judgment against the bankrupt for damages arising from a criminal conversation with the plaintiff’s wife had been based upon a willful and malicious injury to the plaintiff’s property rights and thus was not dischargeable in bankruptcy under § 17(a)(2) of the Bankruptcy Act of 1898. At issue in Tinker was not whether the bankrupt’s conduct had been willful; the Court stated that the act had been intentional and voluntary and thus clearly had been willful for the purpose of § 17(a)(2). 193 U.S. at 485, 24 S.Ct. at 508. At issue in Tinker was whether the bankrupt’s conduct had been malicious for the purpose of § 17(a)(2). The Court initially examined the common-law definition of the term “malice.” The English and American courts, the Court found, had not defined malice in terms of hatred or ill will toward an injured party but had implied malice from a showing of an unlawful, wrongful, and tortious act, done intentionally, and without justification or excuse. Id. at 485-87, 24 S.Ct. at 508-69. The Court also considered the construction of the term under statutes prohibiting the malicious destruction of property that required proof of special malice toward the injured party for conviction. Id. at 487, 24 S.Ct. at 509. Reasoning that the purpose of the Bankruptcy Act was to provide relief for the honest debtor, the Court rejected the latter construction and concluded that the term “malicious” as used in § 17(a)(2) was to be construed using the common-law definition of malice. In order to bring a judgment like the one before it within the scope of § 17(a)(2), the Court declared, it was not necessary that the original cause of action have been based upon special malice. Neither a malignant" }, { "docid": "23009549", "title": "", "text": "re Smith, 11 B.R. 20 (Bkrtcy.N.D.Ohio 1981); In re Obermeyer, 12 B.R. 26 (Bkrtcy.N.D.Ohio 1981). [T]he conversion of another’s property without his knowledge or consent, done intentionally and without justification and excuse, to the other’s injury, is a willful and malicious injury within the meaning of the exception. On the other hand; a technical conversion may very well lack any element of willfulness or maliciousness necessary to except the liability from discharge. 3 Collier on Bankruptcy ¶ 523.16 at 523-116-17 (15th ed. 1979). A claim founded on a mere technical conversion without conscious intent to violate the rights of another, and under mistake or misapprehension, is discharge-able. Id. at 523-123. Every act of conversion does not necessarily give rise to a nondischargeable willful and malicious injury under § 523(a)(6). See, e.g., In re Langer, 12 B.R. 957, 7 B.C.D. 1323 (D.N.D.1981); In re Hawkins, 6 B.R. 97, 6 B.C.D. 1054 (Bkrtcy.W.D.Ky.1980); In re Hodges, 4 B.R. 513, 6 B.C.D. 531, 2 C.B.C.2d 566, [1978-1981 Transfer Binder] Bankr.L.Rep. (CCH) ¶ 67,-678 (Bkrtcy.W.D.Va.1980). “There may be a conversion which is innocent or technical, an unauthorized assumption of dominion without wilfulness or malice.” Davis v. Aetna Acceptance Co., 293 U.S. 328, 332, 55 S.Ct. 151, 153, 79 L.Ed. 393, 397 (1934). Further, a conversion possessing the requisite willful 'and malicious characteristics may nevertheless be discharged where a secured creditor fails to take reasonable steps to protect its security interest in the collateral. Bennett v. W. T. Grant Co., 481 F.2d 664 (4th Cir. 1973). The conversion must be both willful and malicious. The term “willful” means deliberate or intentional. The legislative history to § 523(a)(6) indicates that the looser standard of “reckless disregard,” which had evolved through court interpretation of Bankruptcy Act § 17a(2), is not intended. S.Rep.No.95-989, 95th Cong., 2d Sess. 79 (1978); H.R.Rep.No.95-595, 95th Cong., 1st Sess. 365 (1977), U.S.Code Cong. & Admin.News, p. 5787. There is some question, however, as to whether the term “malicious” as used in Code § 523(a)(6) retains the same meaning as was ascribed to it under former § 17a(2). See Tinker v. Colwell, 193 U.S." }, { "docid": "18797747", "title": "", "text": "altercation. Thus, the debtor’s version of the so-called assault contains this glaring inconsistency which greatly impairs his credibility. The only witness who testified on debt- or’s behalf was a purported friend and customer for 17 years. This witness testified to no first-hand knowledge of the alleged assault. Her testimony referred only to plaintiff’s requests for money from the debtor and to visits she made to the debtor in the hospital after the alleged assault. Essentially, the debtor offered no evidence to connect the injuries he sustained to the alleged assault by the plaintiff and neither hospital records nor doctor’s records were introduced in evidence. In contrast, the plaintiff introduced in evidence certified copies of the criminal court transcript of the dismissal, the civil court default judgment for malicious prosecution for $10,000 in plaintiff’s favor, and the civil court order and opinion denying the debtor’s motion to reopen and vacate the default judgment. These papers included the statement by the Assistant District Attorney made at the hearing dismissing the criminal charge against McGovern taken after interviewing the plaintiff’s alibi witnesses that “[e]ach ... came to my office independently.... Neither of these witnesses ... has any more than a casual relationship with the defendant. Each seemed sincere and accurate in his account of the events of the night in question and placed the defendant far from the scene of the crime.” C. Legal Standards for Nondischarge-ability of a Debt In order to determine whether the injury the plaintiff sustained is a “willful and malicious” injury of the kind contemplated by § 523(a)(6), the creditor must prove the debtor’s conduct was malicious as well as willful. See In re McCloud, 7 B.R. 819, 823 (Bkrtcy.M.D.Tenn.1980); In re Hawkins, 6 B.R. 97, 99 (Bkrtcy.W.D.Ky.1980). The Supreme Court in Tinker v. Colwell, 193 U.S. 473, 24 S.Ct. 505, 48 L.Ed. 754 (1904), provides a definition of “malicious injury”. Tinker involved a state court judgment against a bankrupt for damages arising from criminal conversation with the plaintiff’s wife. At issue was whether the bankrupt’s acts were based upon a willful and malicious injury to the plaintiff’s" }, { "docid": "5168533", "title": "", "text": "section 523(a)(6) was one of “clear and convincing evidence.” In re Bogstad, 779 F.2d 370, 373 (7th Cir.1985). Recently, however, the United States Supreme Court has indicated that a lower standard of proof applies to all exceptions to discharge under section 523, that being a mere “preponderance of the evidence.” Grogan v. Garner, - U.S. -, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991). The discharge provisions of section 523 are construed strictly against the creditor and liberally in favor of the debtor. In re Pochel, 64 B.R. 82, 84 (Bankr.C.D.Ill.1986). B. 11 U.S.C. § 523(a)(6) Section 523(a)(6) provides: (а) A discharge under section 727 ... of this title does not discharge an individual debtor from any debt— (б) for willful and malicious injury by the debtor to another entity or to the property of another entity. 11 U.S.C. § 523(a)(6). In order for a debt to be held nondischargeable under section 523(a)(6), the creditor has the burden of proving that the injury resulted from an act that was both willful and malicious. In re Kimzey, 761 F.2d 421, 424 (7th Cir.1985); United States Bank of Southgate v. Nelson, 35 B.R. 766, 768 (N.D.Ill.1983); In re Hopkins, 82 B.R. 952, 953 (Bankr.N.D.Ill.1988). The term “willful” means “deliberate or intentional,” and “malicious” means “wrongful and without just cause for excuse even in the absence of personal hatred, spite or ill will.” In re Condict, 71 B.R. 485, 487 (N.D.Ill.1987); In re Meyer, 7 B.R. 932, 933 (Bankr.N.D.Ill.1981). The debtor need not act with ill will or malevolent purpose towards the injured party. In re Hallahan, 78 B.R. 547, 550 (Bankr.C.D.Ill.1987), aff'd, 113 B.R. 975 (C.D.Ill.1990), aff'd, 936 F.2d 1496 (7th Cir.1991). Thus, “a wrongful act done intentionally, which necessarily produces harm and is without just cause or excuse, may constitute a willful and malicious injury.” See 3 Collier on Bankruptcy, ¶ 523.16 at 523-129 (15th ed. 1992). The phrase “willful and malicious injury” encompasses “willful and malicious conversion.” In re Meyer, 7 B.R. at 933. Implied or constructive malice will be found if the debtor injures the creditor by an intentional or" }, { "docid": "15508705", "title": "", "text": "United States secured a judgment against the bankrupts in United States District Court on November 13, 1979, in the amount of $29,726.39 plus interest. On January 9, 1980, the bankrupts filed a voluntary petition in bankruptcy. Section 523(a) of the Revised Bankruptcy Act, Title 11, U.S.C., provides in part as follows: A discharge under section 727, 1141, or 1328(b) of this title does not discharge an individual debtor from any debt— (6) for willful and malicious injury by the debtor to another entity or to the property of another entity. . . . Section 17(a)(2) of the prior act contained a similar provision under which it was generally established that an improper disposition of secured property was a basis for excepting a debt from discharge if such a conversion was willful and malicious. See e. g., Davis v. Aetna Acceptance Co., 293 U.S. 328, 55 S.Ct. 151, 79 L.Ed. 393 (1934); In re McGinnis, 586 F.2d 162 (10th Cir. 1978); Robertson v. Interstate Securities Company, 435 F.2d 784 (8th Cir. 1971). This also appears to be true under the new Act. See e. g., In re Auvenshine, 9 B.R. 772 (W.D.Mich.1981); In re McCloud, 7 B.R. 819 (M.D.Tenn.1980); In re Hawkins, 6 B.R 97 (W.D.Ky.1980); In re Hodges, 4 B.R. 513 (W.D.Va.1980). The central issue before the bankruptcy court was whether the bankrupt’s conversion of the secured grain was willful and malicious. The bankruptcy court reasoned that the new Bankruptcy Act requires a more stringent standard in dealing with the nondischargeability provision than was applicable under the old act. In Tinker v. Colwell, 193 U.S. 473, 24 S.Ct. 505, 48 L.Ed. 754 (1904), the Court held that a judgment against the bankrupt for damages arising from a criminal conversation with the plaintiff’s wife had been based upon a willful and malicious injury to the plaintiff’s property rights and thus, was not dischargeable in bankruptcy. The element of willfulness was not in issue in Tinker; the Court stated that the act had been intentional and voluntary and thus clearly had been willful for the purpose of the exception. The issue was" }, { "docid": "23600987", "title": "", "text": "(Daily Ed. Oct. 6, 1978); Reprinted in 4 Norton Bankruptcy Law and Practice, Legislative History, § 523, p. 404-405 (Callaghan & Co. 1983). Section 523(a)(6) adopts the position taken in the House bill and rejects the alternative suggested in the Senate amendment. The phrase “willful and malicious injury” covers a willful and malicious conversion. The legislative history of the Bankruptcy Code thus reflects that Congress clearly intended a standard of intentional and deliberate conduct and not merely a willful disregard or reckless conduct. The Supreme Court in Tinker v. Colwell, 193 U.S. 473, 24 S.Ct. 505, 48 L.Ed. 754 (1904), provided a definition of “malicious injury”. Tinker involved a state court action against a bankrupt for damages arising from criminal conversation with the plaintiff's wife. At issue was whether the bankrupt’s acts were willful and malicious injury to the plaintiff’s property rights and thus nondischargeable under § 17(a)(2) of the Bankruptcy Act of 1898. The Supreme Court in Tinker for the purposes of Section 17(a)(2) concluded: [W]e think a willful disregard of what one knows to be his duty, an act which is against good morals and wrongful in and of itself, and which necessarily causes injury and is done intentionally, may be said to be done willfully and maliciously, so as to come within the exception. Id. 193 U.S. at 487, 24 S.Ct. at 509, 48 L.Ed. 754. Collier on Bankruptcy has made a helpful analysis of § 523(a)(6) as follows: In order to fall within the exception of section 523(a)(6), the injury to an entity or property must have been willful and malicious. An injury to an entity or property may be a malicious injury within this provision if it was wrongful and without just cause or excessive, even in the absence of personal hatred, spite or ill-will. The word “willful” means “deliberate or intentional,” a deliberate and intentional act which necessarily leads to injury. Therefore, a wrongful act done intentionally, which necessarily produces harm and is without just cause or excuse, may constitute a willful and malicious injury. It has been said that this category of liabilities" }, { "docid": "23009551", "title": "", "text": "473, 24 S.Ct. 505, 48 L.Ed. 754 (1904); compare In re McCloud, 7 B.R. 819, 3 C.B.C.2d 701, [1978-1981 Transfer Binder] Bankr.L.Rep. (CCH) ¶ 67,818 (Bkrtcy.M.D.Tenn.1980) with In re Lewis, 17 B.R. 46 (Bkrtcy.W.D.Ark.1981). See also In re McGiboney, 8 B.R. 987 (Bkrtcy.N.D.Ala.1981). This court is persuaded by the analysis presented in McCloud, which adopted the looser Tinker common-law definition of implied or constructive malice, rather than the rigid standard of actual, subjective, conscious intent to harm as enunciated in Lewis. In re McGiboney, supra, in continuing to apply the Tinker concept of “willful and malicious” under Code § 523(a)(6), stated the problem as follows: Since willful and malicious are in the conjunctive both elements must be present. Willful means done with the will or intentionally, and not inadvertently or negligently. Malicious is not used in the sense of evil, personal ill will or hatred, but simply done consciously and knowingly wrongful, and without just cause or excuse. Intent to harm or injure is not required. Intent to do the wrongful act is sufficient and that constitutes the willful part of the act. Unintentional, negligent or technical conversion may not be willful, but note how one can become enmeshed in a shaded area. Morals may or may not be involved in a wrong. Judging human conduct is always difficult. When asked why they sold the creditor’s furniture, the bankrupt replied, “Because I was hungry”; “My baby had no clothes”; or “I did not know it belonged to anybody.” Ever since Mr. Tinker tinkered with Mrs. Colwell at the turn of the century, as the eminent Professor Countryman so artfully phrased it, bankruptcy courts have sought to judge the degree of culpability, and after seventy-five years have not come up with a better definition than Collier’s quotation [3 Collier on Bankruptcy, ¶ 523.16, supra ]. No wonder Congress has not attempted to define willful and malicious anymore than it has defined “alimony” or “in the nature of alimony”, “set-off”, “adequate assurance”, “adequate protection” or “other professional persons”, either accepting established case law or leaving the definition to future decisions. It may" }, { "docid": "14770577", "title": "", "text": "Although conversion of the proceeds from the four wholesale units has been established, a debt is dischargeable unless the conversion is “willful and malicious.” 11 U.S.C. § 523(a)(6). In order for a conversion to be “willful,” it must be deliberate or intentional. H.R.Rep. No. 595, 95th Cong., 1st Sess. 363 (1977); S.Rep. No. 989, 95th Cong., 2d Sess. 77-79 (1978), U.S. Code Cong. & Admin. News 1978, p. 5787. A “malicious” conversion may occur within Section 523(a)(6) if it was wrongful and without just cause or excuse, even in the absence of personal hatred, spite, or ill will. 3 Collier on Bankruptcy, ¶ 523.16 (15th ed. 1985). It is well settled that the intentional conversion of another’s property without justification or excuse is non-dischargeable as willful and malicious injury. Matter of Emporelli, 42 B.R. 814 (Bankr.W.D.Pa.1984). Where the debtor knew that by selling inventory he injured a creditor by depriving that creditor of its collateral, the debtor’s conduct was willful and malicious. In re Scotella, 18 Banlcr. 975 (Bankr.N.D.Ill.1982). If an act of conversion is done deliberately and intentionally in knowing disregard of the rights of another, it falls within the statutory exclusion even though there may be an absence of special malice. In re McCloud, 7 B.R. 819 (Bankr.M.D.Tenn.1980). The court in Matter of Klix, 23 B.R. 187 (Bankr.E.D.Mich.1982), faced a fact scenario similar to that here. FMCC sought to except a former Ford dealer from discharge for converting three vehicles that had been floor planned by FMCC. The court in Klix held, It would be difficult to find that Mr. Klix possessed a purposeful intent to harm Ford Credit. However, he knew that his act of conversion was in contravention of the rights of Ford Credit, and he proceeded deliberately and intentionally in the face of that knowledge. Such an act, done intentionally and without justification or excuse, is a willful and malicious injury within the meaning of the exception provided by § 523(a)(6). Therefore the debt is nondischargeable. Klix, 23 B.R. at 190-91. Mike Branch testified that he was well aware of his obligation to remit proceeds" } ]

[ { "docid": "10555891", "title": "", "text": "not be certified. B. Comity — Abstention Under this doctrine the federal courts abstain from deciding federal constitutional questions not because an imminent state court construction of a state statute might eliminate the need to decide a federal constitutional question, but rather because an adjudication or decree might offend principles of federalism which foster the proposition that the states (and state courts) should put their own houses in order. The doctrine has two facets. In such cases as Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971) a federal court abstains from decision because of the pendency of state proceedings involving the federal plaintiff which afford an immediate opportunity for resolution of the federal claims. Not only is injunctive relief precluded by equitable principles since there is an adequate remedy at law, but declaratory relief is also barred because any federal ruling on the substantive constitutional claim (regardless of the form of relief granted) might reflect an unwarranted lack of confidence in the state court’s ability to decide the claim. Compare Samuels v. Mackell, 401 U.S. 66, 91 S.Ct. 764, 27 L.Ed.2d 688 (1971) with Steffel v. Thompson, 415 U.S. 452, 462, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974). In the instant case there are no pending state proceedings by or against these plaintiffs in which their constitutional claims could be decided. Distinct from Younger, in cases like O’Shea v. Littleton, 414 U.S. 488, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974), Rizzo v. Goode, supra, 423 U.S. 362, 96 S.Ct. 598, 46 L.Ed.2d 561 and Wallace v. Kern, 520 F.2d 400 (2d Cir. 1975) where there were no pending state proceedings, the courts in applying principles of comity have not been primarily concerned with the substantive constitutional ruling per se but with the nature of the relief to be afforded. Federal adjudication of a constitutional claim not before a state court cannot reflect negatively on the state court system; an injunctive decree may, however, inappropriately involve a federal court in the administration of institutions central to the state’s sovereignty. Thus, for example, in Rizzo the district" } ]

[ { "docid": "8166304", "title": "", "text": "controlling or preventing the occurrence of specific events that might take place in the course of future state criminal trials.” O’Shea, 414 U.S. at 499-500, 94 S.Ct. 669. Younger had established a firm rule against enjoining ongoing state criminal proceedings, absent exceptional circumstances, and the plaintiffs in O’Shea simply sought to “indirectly accomplish the [same] kind of interference” through an “ongoing federal audit” of state proceedings. Id. at 500, 94 S.Ct. 669. The Supreme Court later relied on the principles of O’Shea to hold that an injunction requiring the Philadelphia police department to draft comprehensive internal procedures to address civilian complaints was beyond the “scope of federal equity power.” See Rizzo v. Goode, 423 U.S. 362, 378-80, 96 S.Ct. 598, 46 L.Ed.2d 561 (1976). Younger has also been extended well beyond criminal proceedings. See, e.g., Gilbertson v. Albright, 381 F.3d 965, 968-69 (9th Cir.2004) (en banc) (holding that Younger principles apply to an action for damages that relates to a pending state proceeding); Wiener v. Cnty. of San Diego, 23 F.3d 263, 266 (9th Cir.1994) (explaining that Younger abstention is required when the federal plaintiff has an adequate opportunity to litigate federal constitutional claims in a pending state proceeding involving important state interests); see also 17A Moore’s Federal Practice § 122.05[2][d] (3d ed.2012) (describing the extension of Younger). We have come to view O’Shea as standing for the more general proposition that “[w]e should be very reluctant to grant relief that would entail heavy federal interference in such sensitive state activities as administration of the judicial system.” L.A. Cnty. Bar Ass’n v. Eu, 979 F.2d 697, 703 (9th Cir.1992). O’Shea compels abstention where the plaintiff seeks an “ongoing federal audit” of the state judiciary, whether in criminal proceedings or in other respects. E.T. v. Cantil-Sakauye, 682 F.3d 1121, 1124 (9th Cir.2011) (per curiam), cert. denied, — U.S. -, 133 S.Ct. 476, 184 L.Ed.2d 297 (2012); see also Kaufman v. Kaye, 466 F.3d 83, 86 (2d Cir.2006) (holding that abstention was required where the relief sought would be overly “intrusive in the administration of the New York court system”). In Los" }, { "docid": "1725578", "title": "", "text": "federal district court that a state court injunction, which purportedly limited the antiabortion protesters’ speech, was unconstitutional; and (2) an injunction against overenforcement of the state injunction by the city police. Id. at 846. The Seventh Circuit held that although neither the Younger doctrine nor the Rooker-Feld-man doctrine squarely applied to the facts before it, the broader equitable principles espoused by both of those doctrines did apply. See also Samuels v. Mackell, 401 U.S. 66, 69-73, 91 S.Ct. 764, 766-68, 27 L.Ed.2d 688 (1971) (extending Younger abstention doctrine to declaratory judgment actions). The Seventh Circuit acknowledged in Hoover that many types of injunctions are issued as a matter of course. Even so, it warned that federal courts should proceed with caution when injunctive relief is “sought to be applied to officials of one sovereign by the courts of another.” Hoover, 47 F.3d at 850. Such caution is necessary because federal injunctions against state officials can “impair comity, the mutual respect of sovereigns.” Id. The court likened the plaintiffs’ claims for equitable relief to those presented by the plaintiffs in O’Shea, and noted that in that case the Supreme Court described the requested relief as “intrusive and unworkable.” Hoover, 47 F.3d at 851 (quoting O’Shea, 414 U.S. at 500, 94 S.Ct. at 678). We agree with the Seventh Circuit’s reasoning in Hoover: The equitable relief requested by the plaintiffs in this ease is no less “intrusive and unworkable,” and presents the same “unseeml[y]” encroachments on important principles of federalism and comity, see Hoover, 47 F.3d at 851, as did the relief requested in Hoover and in O’Shea. The plaintiffs want the federal district court to order state court judges to inform every parent who appears at a contempt hearing that if he is indigent, he has a right to court-appointed counsel. They want the district court to order state judges to appoint counsel to all indigent parents appearing at a contempt hearing. The plaintiffs also want the district court to order state judges to inquire specifically about each parent’s ability to pay the child support amount in arrears. As to this" }, { "docid": "1725571", "title": "", "text": "County defendants were proper defendants and therefore the claims against them should not have been dismissed; and (3) Ms. Fink was not entitled either to absolute or qualified immunity. We will address the claims in that order. A. Claims Against the Defendant Judges The plaintiffs sought injunctive and declaratory relief against the defendant judges. They asked the district court to enjoin the defendant judges from: (1) incarcerating individuals at contempt hearings without informing them of their right to counsel generally, and to appointed counsel if they are indigent; and (2) incarcerating individuals at contempt hearings without appointing counsel to represent them if they are indigent. In addition, the plaintiffs sought a declaratory judgment that the defendant judges’ practices of incarcerating individuals at a contempt hearing without informing them of their right to counsel, without providing them with court-appointed counsel, and without making an affirmative finding of fact regarding an individual’s ability to pay are unconstitutional. The district court dismissed the claims for equitable relief against the defendant judges on Younger abstention grounds. In Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), the Court “reaffirmed the ‘basic doctrine of equity jurisprudence that courts of equity should not act ... when the moving party has an adequate remedy at law and will not suffer irreparable injury if denied equitable relief.’ ” O’Shea v. Littleton, 414 U.S. 488, 499, 94 S.Ct. 669, 677-78, 38 L.Ed.2d 674 (1974) (quoting Younger, 401 U.S. at 43-44, 91 S.Ct. at 750). The Younger abstention doctrine derives from “the vital consideration of comity between the state and national governments,” Luckey v. Miller, 976 F.2d 673, 676 (11th Cir.1992) (“Luckey V”), which Younger itself de scribed as a “sensitivity to the legitimate interests of both State and National Governments,” Younger, 401 U.S. at 44, 91 S.Ct. at 750. Since Younger, the Supreme Court and this Court have applied and expanded upon that abstention doctrine. In O’Shea v. Littleton, 414 U.S. 488, 499, 94 S.Ct. 669, 677-78, 38 L.Ed.2d 674 (1974), the Court, in an alternative holding, held that the district court had properly declined" }, { "docid": "1275466", "title": "", "text": "at pending criminal proceedings invoke the principles of comity and federalism, but so, too, does the nature of the relief sought. The relief sought by the plaintiffs would “contemplate interruption of state proceedings to adjudicate assertions of noncompliance . . . ” which the Supreme Court found in conflict with principles of equitable restraint in O’Shea v. Littleton, 414 U.S. 499,94 S.Ct. 669, 38 L.Ed.2d 674 (1974). The plaintiffs in O’Shea brought a class action against a county magistrate and an associate judge of a county circuit court. They alleged that the defendants had engaged in racially discriminatory bail and sentencing practices. One of the alleged constitutional infringements was that the defendants set bond in criminal cases according to an unofficial bond schedule without regard to the facts of a case or the circumstances of an individual accused — almost precisely the claim asserted here. In reversing a district court dismissal, the United States Court of Appeals for the Seventh Circuit contemplated an injunction preventing this practice as well as alleged abuses of sentencing and the accused’s right to jury trial. The Court of Appeals also contemplated periodic reports of various types of aggregate data on actions on bail and sentencing. The Supreme Court reversed. The Court held as a threshold matter that the plaintiffs lacked standing to bring the action. It did not stop there, however. It went on to hold that, in any event, Younger mandated dismissal. The contemplated injunction directed at the discretionary acts of a judge was found to violate comity principles since it would require continuous supervision by the federal court over the conduct of the state judges. The Court stressed that “an injunction against acts which might occur in the course of future criminal proceedings would necessarily impose continuing obligations of compliance” and that allegations of noncompliance by class members in federal court would work a continuous intrusion into the daily conduct of state criminal proceedings. In Wallace v. Kern, 520 F.2d 400 (2d Cir. 1975), cert. denied, 424 U.S. 912, 96 S.Ct. 1109, 47 L.Ed.2d 316 (1976), the United States Court of Appeals" }, { "docid": "19098271", "title": "", "text": "a de facto appeal from a final state court judgment and the Rooker-Feldman doctrine did not divest the federal district court of jurisdiction. B. Younger Abstention In Younger v. Harris, a federal plaintiff challenged the constitutionality of a state statute under which he was being prosecuted in state court as a defendant. 401 U.S. at 39, 91 S.Ct. 746. The Supreme Court, concluding that the state criminal proceeding offered a sufficient forum for the plaintiff to raise his constitutional defense, abstained from hearing the plaintiffs claim and stated the general rule that a federal district court must refrain from enjoining pending criminal state court proceedings except under certain special circumstances. Id. at 53-54, 91 S.Ct. 746. Such abstention, the Supreme Court recognized, is required by “[o]ur Federalismos]” notion of comity, that is, “a proper respect for state functions” and “the belief that the National Government will fare best if the States and their institutions are left free to perform their separate functions in their separate ways.” Id. The abstention doctrine derived from Younger applies most often in cases involving pending state criminal prosecutions. See, e.g., O’Shea v. Littleton, 414 U.S. 488, 500, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974) (rejecting challenge to state criminal justice system “aimed at controlling or preventing the occurrence of specific events that might take place in the course of future state criminal trials”); Luckey v. Miller, 976 F.2d 673, 677-78 (11th Cir.1992) (abstaining from an attempt to “restrain every indigent prosecution and contest every indigent conviction until the systemic improvements [plaintiffs] seek are in place”). Early on, the Court expanded Younger abstention to apply to pending civil proceedings that are “akin to a criminal prosecution,” see, e.g., Huffman v. Pursue, Ltd., 420 U.S. 592, 95 S.Ct. 1200, 43 L.Ed.2d 482 (1975) (nuisance statute), Middlesex County Ethics Comm. v. Garden State Bar, 457 U.S. 423, 432, 102 S.Ct. 2515, 73 L.Ed.2d 116 (1982) (state bar disciplinary hearing), and, more recently, in strictly civil proceedings which implicate state courts’ “important interests in administering certain aspects of their judicial systems.” Pennzoil Co. v. Texaco, Inc., 481 U.S. 1," }, { "docid": "12844965", "title": "", "text": "be futile and therefore exhaustion is not required, citing Von Hoffburg v. Alexander, supra at 638. Because we find abstention appropriate, we need not consider the arguments with respect to exhaustion. B. Although the Marine Corps never requested (until we raised the possibility) that either the district court or this court stay its hand pending the outcome of ongoing military proceedings, we believe it is necessary to raise the issue whether the federal courts have equitable jurisdiction to hear this case under the abstention doctrine promulgated by Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). In Younger, the Supreme Court held that a federal court, with valid subject-matter jurisdiction, was nonetheless prohibited from enjoining a state criminal proceeding without a valid showing of “extraordinary circumstances” that would warrant federal intervention. 401 U.S. 37, 45, 53-54, 91 S.Ct. 746. The Court based its ruling upon considerations of equity and comity. Id. at 43-44, 91 S.Ct. 746. The Court explained, [Cjourts of equity should not act ... when the moving party has an adequate remedy at law and will not suffer irreparable injury if denied equitable relief. ... This underlying reason ... is reinforced by an even more vital consideration, the notion of “comity,” that is, a proper respect for state functions, a recognition of the fact that the entire country is made up of a Union of separate state governments, and a continuance of the belief that the National Government will fare best if the States and their institutions are left free to perform their separate functions in their separate ways. Id. at 43-44, 91 S.Ct. 746. The Supreme Court has since applied Yoimper-abstention in various other contexts, including that of Schlesinger v. Councilman, where a serviceman sought an injunction in federal court against a pending court martial proceeding. 420 U.S. 738, 754, 95 S.Ct. 1300, 43 L.Ed.2d 591 (1975). The Court held there that the federal district courts must decline from intervening in the military court system when a serviceman seeking an injunction can show no harm “other than that attendant to the resolution of" }, { "docid": "7022012", "title": "", "text": "way we interpret O’Shea v. Littleton, 414 U.S. 488, 94 S.Ct. 669, 30 L.Ed.2d 674 (1973), rev’ng Littleton v. Berbling, 468 F.2d 389 (7th Cir. 1972), a case which we find legally indistinguishable from the instant case. In O’Shea, a class of plaintiffs sued the local state prosecutors and judges, claiming selective enforcement and administration of the criminal law. Specifically, the plaintiffs alleged that the defendant county magistrate and judge were regularly violating their rights in three respects: 1) setting bond in criminal cases based on an arbitrary schedule without regard to individual fact situations; 2) discriminatorily sentencing them to longer and harsher sentences; 3) unlawfully requiring plaintiffs to pay for jury trials in local criminal proceedings. The plaintiffs claimed that the reason for the discriminatory administration of justice was that they were (mostly) black and had been conducting peaceful protest and economic boycott activities in the area. The Supreme Court found that the complaint failed to state a cause of action. First, the Court did not think that the plaintiffs’ allegations presented a sufficiently concrete dispute and showing of injury to make up an actual case or controversy. O’Shea, supra at 490-99, 94 S.Ct. 673-77. Second, the Court concluded that a federal court could not grant equitable relief in any event. The Court’s rationale for this latter holding was squarely based on Younger federalism principles. Although recognizing that no injunction against pending state proceedings was sought, the Court thought that the potential interference with the state courts was unacceptable. In O’Shea, the Court noted that the plaintiffs were seeking “an injunction aimed at controlling or preventing the occurrence of specific events that might take place in the course of future state criminal trials.” Id. at 500, 94 S.Ct. at 678. The Court rejected the possibility of such federal relief as “intrusive and unworkable.” QId. The Court noted that a federal order would require ongoing federal supervision of how the state judges acted in numerous criminal cases. There even existed the possibility of contempt proceedings against the state judges. The Court equated this intrusion with the injunction against pending state" }, { "docid": "3296442", "title": "", "text": "of an inadequate equitable basis for relief. Younger v. Harris, 401 U.S. 37, 44, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). In Younger, “comity” was defined as: [A] proper respect for state functions, a recognition of the fact that the entire country is made up of a Union of separate state governments, and a continuance of the belief that the National Government will fare best if the States and their institutions are left free to perform their separate functions in their separate ways. . What the concept does represent is a system in which there is sensitivity to the legitimate interests of both State and National Governments, and in which the National Government, anxious though it may be to vindicate and protect federal rights and,federal interests, always endeavors to do so in ways that will not unduly interfere with the legitimate activities of the States. 401 U.S. at 44, 91 S.Ct. at 750. Thus, a federal court should not intervene where such interference unduly inhibits the legitimate functioning of the individual state’s judicial system. The cases are replete with admonitions against such interference and affirmances of this principle. The ultimate relief sought here either by declaratory judgment or injunction would require “nothing less than an ongoing federal audit of state criminal proceedings”. O’Shea v. Littleton, supra 414 U.S. at 500, 94 S.Ct. at 678. A federal court’s declaration of racial discrimination in the state criminal system, rather than on a case by case basis, would require a federal evidentiary hearing for all black defendants detained pending trial in the City of St. Louis. Cf. Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975). Such relief is patently incompatible with the concept of comity. As in O’Shea, the relief sought here: [WJould disrupt the normal course of proceedings in the state courts via resort to the federal suit for determination of the claim ab initio, just as would the request for injunctive relief from an ongoing state prosecution against the federal plaintiff which was found to be unwarranted in Younger. Moreover, it would require for its enforcement" }, { "docid": "8969260", "title": "", "text": "untoward interference with the state judicial system and violates established principles of comity and federalism. O’Shea v. Littleton, 414 U.S. 488, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974); Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). There is no doubt that this court in its two prior reversals of the court below considered that the orders issued there constituted an improper intervention in the internal procedures of state courts. The broad order of Wallace II provided that all detainees after six months be allowed to demand trial and be released on their own recognizance if not brought to trial within 45 days. In reversing, this court ruled that federal courts must limit their inquiry to the specific facts regarding a complaining petitioner. Relief from unconstitutional delays in criminal trials is not available in wholesale lots. Whether an individual has been denied his right to a speedy trial must be determined ad hoc on a case-by-case basis. 499 F.2d at 1351. While the court below held that the issue of the effect of delay on the coercion of guilty pleas had to be determined on a case-by-case basis, it apparently considered the evidence developed at the hearing sufficiently compelling, despite the prior admonitions of this court, to mandate pretrial evidentiary bail hearings on demand. The order below, in thus proceeding to legislate and engraft new procedures upon existing state criminal practices affecting all felony inmates in Kings County confined in any institution under the care, custody and control of the Department of Corrections, so that pending as well as future bail applications are affected, necessarily imposes upon us the duty of deciding the threshold question raised by the defendants — is the intrusion violative of the principles of comity and federalism as defined by the Supreme Court in Younger and its recent holdings which have broadened the doctrine of abstention. In a recent explication of Younger in Huffman v. Pursue, Ltd., 420 U.S. 592, 95 S.Ct. 1200, 43 L.Ed.2d 482 (1975), Mr. Justice Rehnquist, writing the majority opinion, reiterated that federal injunctions against the “state criminal" }, { "docid": "8166303", "title": "", "text": "not fully resolve the matter, however. The district court also abstained from deciding CNS’s claims under O’Shea v. Littleton, 414 U.S. 488, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974). We must decide whether O’Shea provides an independent basis for abstention. Under either de novo review or the de novo component of the modified abuse of discretion standard applicable in most abstention cases, see Fireman’s Fund Ins. Co. v. City of Lodi, 302 F.3d 928, 939 (9th Cir.2002), we conclude that O’Shea abstention was also improper. A. In O’Shea, nineteen plaintiffs challenged comprehensive racial discrimination in the administration of justice in Alexander County, Illinois. They alleged, among other things, that the county magistrate and judge had set higher bail for and imposed harsher sentences on black defendants than white defendants. Id. at 492, 94 S.Ct. 669. Relying on its then-recent decision in Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), the Supreme Court explained that principles of comity and federalism “preclude[d] equitable intervention” because the plaintiffs sought “an injunction aimed at controlling or preventing the occurrence of specific events that might take place in the course of future state criminal trials.” O’Shea, 414 U.S. at 499-500, 94 S.Ct. 669. Younger had established a firm rule against enjoining ongoing state criminal proceedings, absent exceptional circumstances, and the plaintiffs in O’Shea simply sought to “indirectly accomplish the [same] kind of interference” through an “ongoing federal audit” of state proceedings. Id. at 500, 94 S.Ct. 669. The Supreme Court later relied on the principles of O’Shea to hold that an injunction requiring the Philadelphia police department to draft comprehensive internal procedures to address civilian complaints was beyond the “scope of federal equity power.” See Rizzo v. Goode, 423 U.S. 362, 378-80, 96 S.Ct. 598, 46 L.Ed.2d 561 (1976). Younger has also been extended well beyond criminal proceedings. See, e.g., Gilbertson v. Albright, 381 F.3d 965, 968-69 (9th Cir.2004) (en banc) (holding that Younger principles apply to an action for damages that relates to a pending state proceeding); Wiener v. Cnty. of San Diego, 23 F.3d 263, 266 (9th Cir.1994)" }, { "docid": "2603550", "title": "", "text": "comity, as described in O’Shea v. Littleton, 1974, 414 U.S. 488, 94 S.Ct. 669, 38 L.Ed.2d 674, defeat the claims based on the imposition of excessive bail. O’Shea involved a similar attack on the administration of the criminal justice system in Alexander County, Illinois. Among other things, the plaintiffs alleged that the judges were guilty of racial discrimination in the setting of bail, in the imposition of sentences, and in requiring blacks to pay for their jury trials adjudicating charges of violating local ordinances. The plaintiffs sought declaratory and injunctive relief. The Supreme Court held that dismissal of those claims was appropriate because the granting of such equitable relief would require excessive federal interference in the operation of state criminal courts. The enforcement of any remedial order granting the relief requested would require federal courts to interrupt state proceedings to adjudicate allegations of asserted non-compliance with the order. This sort of anticipatory interference violated the principle, established in Younger v. Harris, 1971, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669, and other related cases, that state criminal process should run its course before federal courts exercise their equitable powers. Because O’Shea involved a challenge to the imposition of excessive bail, it is conclusive as to Tarter’s claim for equitable relief based on that ground. The O’Shea rubric does not apply, however, to the refusal to docket and hear pro se motions. The enforcement of an injunction requiring clerks to file all pro se motions would not require the same sort of interruption of state criminal processes that an injunction against excessive bail would entail. Because the amount of bail prescribed for each criminal defendant depends on the peculiar facts and circumstances of his case, the setting of bail requires ad hoc decisions committed to the discretion of judges. An injunction against excessive bail, no matter how carefully limited, would require a federal court to reevaluate de novo each challenged bail decision. By contrast, an injunction requiring that all pro se motions be docketed and considered by the court (although not necessarily argued) would not require such case-by-case evaluations of" }, { "docid": "8166302", "title": "", "text": "be stifled. CNS is a “surrogate[] for the public,” Leigh, 677 F.3d at 900 (internal quotation marks omitted), and the public cannot discuss the content of unlimited civil complaints about which it has no information. CNS’s right of access claim presents the same essential concerns that have compelled us to reject Pullman abstention in every First Amendment case except one that was uniquely postured. To hold otherwise would disregard the principle that the right of access is “necessary to the enjoyment” of the right to free speech. Globe Newspaper Co., 457 U.S. at 604, 102 S.Ct. 2613. The scope of CNS’s right is an important question of first impression and a matter of “particular federal concern” that removes this case from the realm of “sensitive” state issues that federal courts should hesitate to address. Ripplinger, 868 F.2d at 1048. Because of “the weight of the First Amendment issues involved,” Hartford Courant Co., 380 F.3d at 100, the district court lacked the discretion to abstain under the Pullman doctrine. V. Our analysis of Pullman abstention does not fully resolve the matter, however. The district court also abstained from deciding CNS’s claims under O’Shea v. Littleton, 414 U.S. 488, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974). We must decide whether O’Shea provides an independent basis for abstention. Under either de novo review or the de novo component of the modified abuse of discretion standard applicable in most abstention cases, see Fireman’s Fund Ins. Co. v. City of Lodi, 302 F.3d 928, 939 (9th Cir.2002), we conclude that O’Shea abstention was also improper. A. In O’Shea, nineteen plaintiffs challenged comprehensive racial discrimination in the administration of justice in Alexander County, Illinois. They alleged, among other things, that the county magistrate and judge had set higher bail for and imposed harsher sentences on black defendants than white defendants. Id. at 492, 94 S.Ct. 669. Relying on its then-recent decision in Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), the Supreme Court explained that principles of comity and federalism “preclude[d] equitable intervention” because the plaintiffs sought “an injunction aimed at" }, { "docid": "1725572", "title": "", "text": "Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), the Court “reaffirmed the ‘basic doctrine of equity jurisprudence that courts of equity should not act ... when the moving party has an adequate remedy at law and will not suffer irreparable injury if denied equitable relief.’ ” O’Shea v. Littleton, 414 U.S. 488, 499, 94 S.Ct. 669, 677-78, 38 L.Ed.2d 674 (1974) (quoting Younger, 401 U.S. at 43-44, 91 S.Ct. at 750). The Younger abstention doctrine derives from “the vital consideration of comity between the state and national governments,” Luckey v. Miller, 976 F.2d 673, 676 (11th Cir.1992) (“Luckey V”), which Younger itself de scribed as a “sensitivity to the legitimate interests of both State and National Governments,” Younger, 401 U.S. at 44, 91 S.Ct. at 750. Since Younger, the Supreme Court and this Court have applied and expanded upon that abstention doctrine. In O’Shea v. Littleton, 414 U.S. 488, 499, 94 S.Ct. 669, 677-78, 38 L.Ed.2d 674 (1974), the Court, in an alternative holding, held that the district court had properly declined to provide equitable relief to plaintiffs who sought an injunction against various state officials, including state judges. The plaintiffs had alleged that the state judges had unconstitutionally: (1) set bond in criminal cases without regard to the facts of a case; (2) set sentences higher and imposed harsher conditions on black persons than white persons; and (3) required black persons, when charged with violations of city ordinances that carry fines and possible jail sentences if the fines cannot be paid, to pay for a trial by jury. Id. at 492, 94 S.Ct. at 674. The plaintiffs requested that the federal district court enjoin those practices, and the district court declined to do so. In holding that the district court had properly declined to enjoin those practices, the Supreme Court stated that “ ‘the principles of equity, comity, and federalism ... must restrain a federal court when asked to enjoin a state court proceeding.’” Id. at 499, 94 S.Ct. at 678 (quoting Mitchum v. Foster, 407 U.S. 225, 243, 92 S.Ct. 2151, 2162, 32 L.Ed.2d 705" }, { "docid": "3296443", "title": "", "text": "cases are replete with admonitions against such interference and affirmances of this principle. The ultimate relief sought here either by declaratory judgment or injunction would require “nothing less than an ongoing federal audit of state criminal proceedings”. O’Shea v. Littleton, supra 414 U.S. at 500, 94 S.Ct. at 678. A federal court’s declaration of racial discrimination in the state criminal system, rather than on a case by case basis, would require a federal evidentiary hearing for all black defendants detained pending trial in the City of St. Louis. Cf. Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975). Such relief is patently incompatible with the concept of comity. As in O’Shea, the relief sought here: [WJould disrupt the normal course of proceedings in the state courts via resort to the federal suit for determination of the claim ab initio, just as would the request for injunctive relief from an ongoing state prosecution against the federal plaintiff which was found to be unwarranted in Younger. Moreover, it would require for its enforcement the continuous supervision by the federal court over the conduct of the petitioners in the course of future criminal trial proceedings involving any of the members of the respondent’s broadly defined class. 414 U.S. at 501, 94 S.Ct. at 679. The fact that plaintiffs have sought declaratory relief as well as injunctive relief makes little difference here. In Samuels v. Mackell, 401 U.S. 66, 91 S.Ct. 764, 27 L.Ed.2d 688 (1971), the Supreme Court held that the same principles which govern the propriety of granting federal injunctive relief in state criminal prosecutions, likewise govern the issuance of federal declaratory judgments in connection with such prosecutions. Although declaratory judgments are a statutory rather than a traditional equitable remedy, the Supreme Court has characterized the declaratory judgment as “essentially an equitable cause of action.” Great Lakes Dredge & Dock Co. v. Huffman, 319 U.S. 293, 300, 63 S.Ct. 1070, 1074, 87 L.Ed. 1407 (1943). In Samuels v. Mackell, the Supreme Court noted: [I]n cases where the criminal proceeding was begun prior to the federal civil suit, the" }, { "docid": "23172469", "title": "", "text": "held that Younger abstention is sometimes applicable to restrain federal court inter ference with certain noncriminal state proceedings that implicate important state interests”)- Indeed, the Supreme Court in Middlesex held that “[b]ecause respondent ... had an opportunity to raise and have timely decided by a competent state tribunal the federal issues involved ... federal courts should abstain from interfering with the ongoing proceedings.” 457 U.S. at 487, 102 S.Ct. at 2524 (emphasis added) (citation and internal quotation marks omitted). Therefore, we join our sister circuits in explicitly stating that an essential part of the first Middlesex factor in Younger abstention analysis is whether the federal proceeding will interfere with an ongoing state court proceeding. If there is no interference, then abstention is not required. In order to decide whether the federal proceeding would interfere with the state proceeding, we look to the relief requested and the effect it would have on the state proceedings. See O’Shea v. Littleton, 414 U.S. 488, 499-502, 94 S.Ct. 669, 677-79, 38 L.Ed.2d 674 (1974); Luckey V, 976 F.2d at 679 (Younger and O’Shea require “focus on the likely result of an attempt to enforce an order of the nature sought here”). The relief sought need not directly interfere with an ongoing proceeding or terminate an ongoing proceeding in order for Younger abstention to be required. In O’Shea, the Supreme Court held that abstention was required where an injunction would have “indirectly accomplished] the kind of interference that Younger v. Harris ... and related cases sought to prevent.” Id. at 500, 94 S.Ct. at 678 (emphasis added). The plaintiffs in O’Shea did not seek to enjoin directly any pending prosecutions but apparently did seek a federal court injunction aimed at controlling or preventing the occurrence of specific events that might take place in the course of future state criminal trials. The requested injunction contemplated interruption of the state proceedings in order for the federal court to adjudicate compliance by the defendants with the injunction, through what the Supreme Court called “an ongoing federal audit of state criminal proceedings.” Id. at 500, 94 S.Ct. at 678." }, { "docid": "1725596", "title": "", "text": "stage, there is a pending state court proceeding. In particular, the plaintiffs allege that there is \"a Continuing Writ which allows the Defendants to bring the Plaintiffs and members of the Plaintiff class before the court for civil contempt for any child support arrearage.” Second, we disagree with the position of the opinion that O’Shea and Hoover were not based upon principles of comity, as well as equity. In O’Shea, the Court discussed at length the affronts to comity that would occur if the plaintiffs were granted the requested federal equitable relief. 414 U.S. at 500-02, 94 S.Ct. at 678-79. The Court concluded that \"[a]n injunction of the type contemplated by the [plaintiffs] ... would disrupt the normal course of proceedings in the state courts via resort to the federal suit for determination of the claim ah initio, just as would the request for injunctive relief from an ongoing state prosecution against the federal plaintiff which was found to be unwarranted in Younger.\" Id. at 501, 94 S.Ct. at 679. Similarly, in Hoover, the Seventh Circuit concluded that “it would be an abuse of discretion, in light of the principles of equity and comity that underlie Younger, to grant the relief sought by the plaintiffs.” 47 F.3d at 851 (emphasis added). Third, even if there were no ongoing state proceeding, and even if O’Shea and Hoover did not deal with principles of comity, we still would hold that principles of comity, as well as equity, apply in this case. We would be required to do so under the prior precedent rule in order to be consistent with our decision in Luckey V. There, we concluded that because of the \"comity concerns of Younger and O’Shea,\" 976 F.2d at 678, even the limited injunctive relief requested by the plaintiffs \"would inevitably set up the precise basis for future intervention condemned in O'Shea,\" id. at 679. Although we agree with the concurring opinion that our decision in Ealy v. Littlejohn, 569 F.2d 219 (5th Cir.1978), like our decision in Luckey V, is binding precedent, we disagree with the opinion’s interpretation of Ealy." }, { "docid": "4640404", "title": "", "text": "equity. In Juidice v. Vail, 430 U.S. 327, 97 S.Ct. 1211, 51 L.Ed.2d 376 (1977), the Supreme Court held that federal courts should abstain from enjoining State contempt proceedings if the State procedures provide the federal plaintiff with an opportunity to present his federal claims to the State court. Because “[t]he contempt power lies at the core of the administration of a State’s judicial system,” federal interference with a contempt proceeding is as offensive to the State as interfering with a pending State criminal action. Id. at 334-36, 97 S.Ct. at 1216-18. State law plainly supplies avenues by which Bertucci may present his federal claims to State court. For example, he may make a motion to vacate the contempt order, N.Y.Civ.Prac.L. & R. § 5015, or a motion for stay of the warrant of commitment, id. §■ 2201. See Juidice, 430 U.S. at 337 n. 14, 97 S.Ct. at 1218 n. 14 (noting availability of motions to vacate and for a stay under New York civil practice rules). Abstention is not appropriate, however, if the plaintiff alleges and proves that the State officials enforced the contempt procedures in bad faith or were motivated by a desire to harass. Juidice, 430 U.S. at 338, 97 S.Ct. at 1218. As discussed above, however, Bertucci’s allegations of conspiracy are insufficient to state a cause of action under 42 U.S.C. § 1983, and the Court finds that they are equally insufficient to avoid abstention under Juidice. A contrary conclusion based on the present complaint would totally undermine the abstention doctrine. Accordingly, abstention is appropriate in this case. The Court also finds, however, that Ber-tucci has failed to show that he would be entitled to the relief sought. To obtain an injunction in the ordinary case, the plaintiff must show a threat of irreparable injury for which there is no adequate remedy at law. O’Shea v. Littleton, 414 U.S. 488, 499, 94 S.Ct. 669, 678, 38 L.Ed.2d 674 (1974). Because of considerations of comity and federalism, however, a heightened standard requires a plaintiff seeking to enjoin State officers engaged in the administration of State criminal" }, { "docid": "1567517", "title": "", "text": "Constitution.” United States v. Snider, 502 F.2d 645, 659 (4th Cir.1974). In light of these precedents, we cannot say with assurance, on this sparse record, that appellants have failed to state a cause of action. II. The District Court, citing Younger v. Harris as the controlling precedent, dismissed this action on grounds of comity and abstention. Kaplan v. Hess, No. 81-2644 (D.D.C. Dec. 23, 1981). Relying on O’Shea v. Littleton, 414 U.S. 488, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974), the District Court found that the lack of pending local proceedings was not dispositive in the present case because any order it might issue would interfere with local court proceedings. In O’Shea, petitioners sought damages and injunctive relief against a county judge and magistrate who allegedly engaged in discriminatory bond setting, sentencing, and jury fee practices under a variety of statutes. The Court in O’Shea emphasized, however, that petitioners did “not seek to strike down a single state statute, either on its face or as applied” or “to enjoin any criminal prosecutions that might be brought under a challenged ... law.” Rather, they sought “an injunction aimed at controlling or preventing the occurrence of specific events that might take place in the course of future state criminal trials.” Id. at 500, 94 S.Ct. at 678. This the Court could not countenance, characterizing the relief sought as “nothing less than an ongoing federal audit of state criminal proceedings which would indirectly accomplish the kind of interference that Younger ... and related cases sought to prevent.” Id. To our knowledge, the O’Shea rule has never been extended to declaratory judgment actions. As the Court noted in Steffel v. Thompson, 415 U.S. 452, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974), when “no state prosecution is pending and the only question is whether declaratory relief is appropriate[,] ... the congressional scheme that makes the federal courts the primary guardians of constitutional rights, and the express congressional authorization of declaratory relief, afforded because it is a less harsh and abrasive remedy than the injunction, become the factors of primary significance.” Id. at 463, 94 S.Ct." }, { "docid": "1725605", "title": "", "text": "circuit holds that Younger does not apply when there is not a pending state proceeding. Ealy v. Littlejohn, 569 F.2d 219, 232 (5th Cir.1978) (“When there will be no interruption of ongoing state criminal proceedings, and thus no threat to proper federal-state relations, Younger does not bar federal intervention so long as the plaintiff can satisfy the requirements of federal jurisdiction, and can demonstrate (i) exceptional circumstances and (ii) that an injunction is necessary for adequate protection of constitutional rights.”). Because there is no pending state proceeding in this case, the notions of comity and federalism on which Younger primarily relied are not implicated here. Younger “Our Federalism” abstention, therefore, does not apply here. O’Shea v. Littleton, 414 U.S. 488, 499, 94 S.Ct. 669, 677-78, 38 L.Ed.2d 674 (1974); Ealy, 569 F.2d at 233 (“[TJhere was no state prosecution pending against these plaintiffs when they instituted the present suit, thus making the Younger holding inapplicable.”); Luckey v. Harris, 896 F.2d 479, 479 (11th Cir.1989) (Edmondson, J., dissenting); Hoover, 47 F.3d at 848; see also Chemerinsky § 13.3, at 748. Nevertheless, the general equitable principles reiterated in Younger do apply here. In applying these general equitable principles to the facts of this case, I reach the same result the majority does. However, I conclude that the district court properly dismissed plaintiffs claims against the judges not because Younger abstention applies, but because equitable relief is inappropriate here because the plaintiffs lack the elements necessary for general equitable relief: an inadequate remedy at law and irreparable injury. Neither of these elements are present because the plaintiffs are not barred from rais ing their claims during the course of any future state court proceedings they may be involved in, or challenging an adverse ruling through the state appeals process, or invoking state and federal habeas avenues if they do not otherwise succeed. In Ealy, an injunction issued because there was no interruption of ongoing state proceedings, exceptional circumstances were present, and an injunction was necessary for adequate protection of constitutional rights; in this case, however, the last requirement is not satisfied; an injunction" }, { "docid": "259216", "title": "", "text": "that plaintiff lacked standing to bring claim seeking to enjoin the use of “ehokeholds” by police officers because plaintiff did not establish a policy of using this technique and, thus, its future use was merely speculative). “Past exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief ... if unaccompanied by any continuing, present adverse effects.” O’Shea v. Littleton, 414 U.S. 488, 495-96, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974) (holding that plaintiffs lacked standing to bring claim against county magistrate for illegal bond setting, sentencing, and jury fee practices because none of the named plaintiffs were serving illegal sentences or awaiting trial). Citing Lyons and O’Shea, Defendants argue that Plaintiffs lack standing because they have not established an imminent threat of future injury. Assuming arguen-do that Plaintiffs suffered past harms while in DCF custody, Defendants suggest that these harms are unlikely to reoccur. This case is clearly distinguishable from the cases Defendants rely upon. Here, Plaintiffs allege, unlike the plaintiffs in Lyons and O’Shea, that Defendants maintain policies and practices that continue to harm them. Given that Plaintiffs remain in DCF custody and have not been placed in permanent homes, they may fairly argue that they suffer ongoing harm resulting from the alleged systemic failures within DCF. It is well established that allegations of ongoing harm satisfy Article Ill’s standing requirement. See County of Riverside v. McLaughlin, 500 U.S. 44, 51, 111 S.Ct. 1661, 114 L.Ed.2d 49 (1991) (contrasting Lyons “in which the constitutionally objectionable practice ceased altogether” and holding that plaintiffs had standing because they alleged “a direct and current injury” resulting from an unlawful detention). Thus, because they assert an ongoing injury fairly traceable to Defendants’ allegedly unlawful conduct, Plaintiffs have standing to bring their claims. B. Abstention. The Supreme Court has identified several discrete circumstances that require federal courts to abstain from adjudicating a case. Here, Defendants argue that abstention is appropriate under Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). In Younger and its progeny, the Supreme Court prohibited federal courts from interfering" } ]

[ { "docid": "12436855", "title": "", "text": "could make the proper nexus between unexplained possession and knowledge of theft. He cites the following language from Hale v. United States, 410 F.2d 147, 150 (5th Cir. 1969): “The inference allowed by unexplained possession is a powerful one. It is a substitute for direct proof of guilty knowledge and courts, both trial and appellate, should proceed with extreme care in determining whether the evidence sufficiently establishes a basis for the inference.” After giving this cautionary admonition and stating that the issue of what constitutes “recent” is a jury question, the court goes on to suggest the standards under which the inference may be allowed : “There is a likewise certain period after which an inference of guilty knowledge cannot be rationally inferred from unexplained possession. Whether this period has expired is a question for the trial court to determine before giving the case to the jury. In reaching its determination, the trial court need not be oblivious to other evidence pointing to the accused’s guilt; to the contrary, it is free to judge the reasonableness of the inference in the context of all the evidence. Approaching the case sub judice in this manner, we conclude that the trial court did not err in allowing the jury to infer guilty knowledge from the appellant’s unexplained possession of the automobile. To be sure, the lapse of six months and nineteen days substantially weakened the inference of guilty knowledge, but when the appellant’s unexplained possession is analyzed in the context of a factual setting as fraught with suspicion as the one in this case, the inference is strengthened and doubt as to its reasonableness fades. Accordingly, we hold that the evidence against the appellant fairly included the inference to be drawn from unexplained possession of recently stolen property, and that the appellant’s motion for a directed verdict of acquittal was properly denied.” 410 F.2d at 151. Under the Hale standards and considering the evidence against Martinez which was before the court, we do not find error in the instruction. (5) Indictment Based on Hearsay Prior to trial and at trial, Martinez moved" } ]

[ { "docid": "1380060", "title": "", "text": "States, 412 U.S. 837, 845 n. 9, 93 S.Ct. 2357, 2362, 37 L.Ed.2d 380 (1973). It is for the jury to decide whether the explanation was adequate to negate the inference. Affirmed. . 18 U.S.C. § 2312 reads: Whoever transports in interstate or foreign commerce a motor vehicle or aircraft, knowing the same to have been stolen, shall be fined not more than $5,000 or imprisoned not more than five years, or both. . 18 U.S.C. § 2313 reads: Whoever receives, conceals, stores, barters, sells, or disposes of any motor vehicle or aircraft, moving as, or which is a part of, or which constitutes interstate or foreign commerce, knowing the same to have been stolen, shall be fined not more than $5,000 or imprisoned not more than five years, or both. . The Supreme Court cases cited by appellant do not reach the issue of whether testimony about a defendant’s post-arrest silence violates the defendant’s right to remain silent under Miranda. That issue is not raised here, presumably because Mitchell signed a written waiver of his Miranda rights." }, { "docid": "8676126", "title": "", "text": "O’SULLIVAN, Senior Circuit Judge. We consider the appeal of four defendants, William G. Goble, Walter K. Byrd, Terry Lee Carter, Jr., and Raymond F. Shad, from convictions for participation in an automobile theft operation. Jury trial was had in the United States District Court for the Eastern District of Kentucky before the Honorable Mac Swinford. For reasons stated herein, we affirm. I. BACKGROUND A 44-count indictment filed on September 21, 1971, named 24 defendants, including appellants, as having participated in a wide-ranging automobile theft operation involving 50 or more stolen cars. All defendants were charged in Count 1 with having conspired to commit various crimes against the United States, in violation of 18 U.S.C. § 371, which provides: “§ 371. Conspiracy to commit offense or to defraud United States If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined not more than $10,-000 or imprisoned not more than five years, or both. If, however, the offense, the commission of which is the object of the conspiracy, is a misdemeanor only, the punishment for such conspiracy shall not exceed the maximum punishment provided for such misdemeanor;” and some of them, including the appellants, were also charged with various substantive crimes in the remaining 43 counts. These counts alleged the transporting of stolen vehicles in interstate commerce, in violation of 18 U.S.C. § 2312: “§ 2312. Transportation of stolen vehicles Whoever transports in interstate or foreign commerce a motor vehicle or aircraft, knowing the same to have been stolen, shall be fined not more than $5,000 or imprisoned not more than five years, or both;” the receiving, concealing and disposing of such vehicles, in violation of 18 U.S.C. § 2313: “§ 2313. Sale or receipt of stolen vehicles Whoever receives, conceals, stores, barters, sells, or disposes of any motor vehicle or aircraft, moving as, or which is part of," }, { "docid": "23041533", "title": "", "text": "recently stolen property, and that the appellant’s motion for a directed verdict of acquittal was properly denied. The foregoing discussion presupposes that admissions into evidence were proper. The appellant contends, however, that the contents of the telephone call received by Officer Patrick were improperly admitted because Patrick did not recognize the caller’s voice as being that of the appellant. This contention is without merit. Once a prima facie case of authorship is made out by the proponent of evidence, the issue of authenticity is for the jury. Officer Patrick’s testimony, although only circumstantial evidence of authenticity, was sufficient to take the matter to the jury. The appellant also urges that by waiving its right to open the closing arguments to the jury, the Government waived its right to discuss the case generally and that, when it included in its final remarks discussion not limited to refuting the appellant’s closing argument, error prejudicial to the appellant resulted. This contention also fails. The order and extent of the argument is entirely within the discretion of the trial court. Additionally, the appellant assigns as error the trial court’s permitting the Government to reopen its case in order to offer evidence that the theft occurred in Tennessee, a fact inadvertently omitted in the presentation of the Government’s case. To permit reopening and receipt of additional testimony omitted through mere inadvertence is within the discretion of the trial court, and we find no abuse of discretion in the instant case. We have examined each of the appellant’s contentions and find them all without merit. The judgment of conviction is affirmed. . The appellant was convicted on a count charging a violation of 18 U.S.C. § 2313 (1964) which provides: Whoever receives, conceals, stores, barters, sells, or disposes of any motor vehicle or aircraft, moving as, or which is a part of, or which constitutes interstate or foreign commerce, knowing the same to have been stolen, shall be fined not more than $5,000 or imprisoned not more than five years, or both. A count charging the appellant with violating 18 U.S.C. § 2312 (1964), which proscribes" }, { "docid": "114625", "title": "", "text": "Sheiner, 410 F.2d 337, 342 (2d Cir.1969). Finding all of appellants’ contentions to be without merit, we affirm. . 18 U.S.C. § 2813 provides: “Whoever receives, conceals, stores, barters, sells, or disposes of any motor vehicle or aircraft, moving as, or which is a part of, or which constitutes interstate or foreign commerce, knowing the same to be stolen, shall be fined not more than $5,000 or imprisoned not more than five years, or both.” 18 U.S.C. § 2 provides: “(a) Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission is punishable as a principal. (b) Whoever wilfully causes an act to be done, which if directly performed by him or another, would be an offense against the United States is punishable as a principal.” . The indictment contained six counts. None of the appellants was named in Counts 4-6, which involved the transportation of stolen vehicles in violation of 18 U.S.C. §§ 2312 and 2. A ninth co-defendant, Clifford Johnson, was tried with the eight appellants, but a judgment of acquittal was entered at the close of the evidence with the government’s consent. A directed judgment of acquittal on Count 2 was entered as to defendant Cavallaro. . Judge Croake imposed prison sentences ranging from 6 to 30 months. Defendants Pulver and Novak, who were charged and convicted on all three counts, were each sentenced on Count 1 to a split sentence of six months, followed by a two-year probationary period. Sentence was suspended on Counts 2 and 3 and probation imposed concurrently with probation on Count 1. Defendants Camillo, Di-Federico, and Benoit each received the same sentence except that, since they had been charged and convicted on only two counts (DiFederico and Benoit on Counts 1 and 2, Camillo, Counts 1 and 3), their probation term was made concurrent with one count. Defendant Staires, who was charged and convicted on all three counts, was sentenced to imprisonment for a term of one year and six months, followed by concurrent terms of one year of probation on each of the" }, { "docid": "14790470", "title": "", "text": "imprisonment for receiving stolen property, five years imprisonment for transportation of a stolen motor vehicle (to run consecutively with the receiving charge), and five years imprisonment suspended on four counts of mail fraud with probation for five years on each count running concurrently with the sentence imposed on the previous counts. . Since the jury properly found Ochoa to have been a member of the overall conspiracy, we need not reach the issue posed by Ochoa's challenge that he could not be a coconspirator with Garcia, since Garcia was a government informant. . The approved Pinkerton instruction given in Zabic is: If you find that the defendant is guilty of conspiracy as charged in Count One, you may also find the defendant guilty of a substantive offense as charged in any other count of the indictment, provided that you find that the essential elements of that count as defined in these instructions have been established beyond reasonable doubt, and provided that you also find beyond reasonable doubt, First, that the offense defined in the substantive count was committed pursuant to the conspiracy, and Second, that the defendant was a member of the conspiracy at the time the substantive offense was committed. Under the conditions just defined a defendant may be found guilty of a substantive count even though he did not participate in the acts constituting the offense as defined in the substantive count. The reason for this is that a co-conspirator committing a substantive offense pursuant to a conspiracy is held to be an agent of the other co-conspirators. . 18 U.S.C. § 2312 provides: Whoever transports in interstate or foreign commerce a motor vehicle or aircraft-, knowing the same to have been stolen, shall be fined not more than $5,000 or imprisoned not more than five years, or both. . 18 U.S.C. § 2313 provides: Whoever receives, possesses, conceals, stores, barters, sells, or disposes of any motor vehicle or aircraft, which has crossed a State or United States boundary after being stolen, knowing the same to have been stolen, shall be fined not more than $5,000 or imprisoned" }, { "docid": "23003622", "title": "", "text": "abuse its discretion in refusing to strike the testimony, even assuming that there was a failure to show the time the statement was made. There was no indication that it was not made during the conspiracy, and because of the delay in asserting the issue, the government was effectively precluded from demonstrating that it was. This court stated in Metcalf v. United States, supra: “It is the well settled rule that objections to evidence should be timely made when the evidence is offered, and that it is within the discretion of the trial judge to sustain or overrule a motion, delayed until the close of the Government’s case, to strike from the consideration of the jury evidence previously received without objection.” 195 F.2d at 216. We conclude, therefore, that no error was committed in the admission of these statements. CONCLUSION In a trial of this magnitude, it is of course inevitable that some errors both in judgment and in law may have occurred, errors which in another trial might be cured only to be replaced by others as yet unknown. Our careful review of the entire record of this case, however, convinces us that there was sufficient and substantial evidence to support the jury convictions of each of the appellants, that the jury was fairly and fully instructed in the law, and that no reversible error intervened to deprive any of the defendants of a fair trial. Affirmed. . 18 U.S.C. § 2312 provides: § 2312. Transportation of stolen vehicles Whoever transports in interstate or foreign commerce a motor vehicle or aircraft, knowing the same to have been stolen, shall be fined not more than $5,000 or imprisoned not more than five years, or both. June 25, 1948, c. 645, 62 Stat. 806. 18 U.S.C. § 2313 provides: § 2313. Sale or receipt of stolen vehicles Whoever receives, conceals, stores, barters, sells, or disposes of any motor vehicle or aircraft, moving as, or which is a part of, or which constitutes interstate or foreign commerce, knowing the same to have been stolen, shall be fined not more than $5,000 or" }, { "docid": "1107744", "title": "", "text": "knowledge and guilty purpose, any driving, whether wholly within the state of origin, state of destination, or from and to, if done as a substantial step in the furtherance of the intended interstate journey is ... we think, within the act.” Id. at 280, citing Barfield v. United States, 229 F.2d 936, 939 (5th Cir.1956). Judge Higginbotham would hold that it would also have been permissible for a jury to find that when Briggs provided the first set of fraudulent paperwork to Kapp that Briggs knew the truck had been stolen. . Section 2313 in pertinent part provides: Whoever receives, conceals, stores, barters, sells, or disposes of any motor vehicle or aircraft, moving as, or which is a part of, or which constitutes interstate or foreign commerce, knowing the same to have been stolen, shall be fined not more than $5,000 or imprisoned not more than five years, or both. . Fed.R.Evid. 801(d)(2)(E) allows an exception to the hearsay rule when a statement is made by a co-conspirator \"during the course and in furtherance of the conspiracy.” SLOVITER, Circuit Judge, dissenting. I respectfully dissent from the majority’s opinion insofar as it affirms the conviction of appellant Paul Briggs on the count of conspiracy to transport vehicles in interstate commerce. I join in the remainder of the majority’s opinion. Briggs was charged with and convicted of two counts of the ten count indictment: one count alleging he was part of a conspiracy to transport stolen motor vehicles in interstate commerce in violation of 18 U.S.C. §§ 371 and 2312, and the other alleging the substantive offense of receiving a stolen motor vehicle in violation of 18 U.S.C. § 2313. Count 1, the conspiracy count, charges that codefendant Shirl Kapp stole a 1977 Peterbilt Tractor; that code-fendants Robert Miller, Kapp and Robert Lewis stole a 1973 Kenworth Tractor; that Kapp, Miller and Ronald Klingler transported a stolen 1978 Freightliner Tractor; and that Klingler and Kapp stole a 1981 International Harvester Tractor. Briggs was neither charged with nor implicated in any of those thefts. The only charge as to Briggs was that Kapp" }, { "docid": "12013747", "title": "", "text": "the United' States to a Special Agent of the Federal Bureau of Investigation in the following manner: said defendant willfully caused to be represented to Special Agent Jerome T. Doherty (sic) of the Federal Bureau of Investigation that the whereabouts of $560.00 of monies taken from the Brooks Field National Bank, San Antonio, Texas, in violation of Title 18, United States Code, Section 2113(a), on June 1, 1971, were unknown to him, the said defendant, when in truth and in fact, as the defendant then and there well knew said representation was false”. . Title 18, U.S.C., § 1510(a) provides: “Whoever willfully endeavors by means of bribery, misrepresentation, intimidation, or force or threats thereof to obstruct, delay, or prevent the communication of information relating to a violation of any criminal statute of the United States by any person to a criminal investigator . shall be fined not more than $5,000, or imprisoned not more than five years, or both”. . Title 18, U.S.C., Section 2312 provides: “Whoever transports in interstate or foreign commerce a motor vehicle or aircraft, knowing the same to have been stolen, shall be fined not more than $5,000 or imprisoned not more than five years, or both.” Title 18, U.S.C., Section 2313 provides: “Whoever receives, conceals, stores, barters, sells, or disposes of any motor vehicle or aircraft, moving as, or which is a part of, or which constitutes interstate or foreign commerce, knowing the same to have been stolen, shall be fined not more than $5,000 or imprisoned not more than five years, or both.” . Inasmuch as we reverse for a new trial as to Count 1 and the evidence may differ upon retrial, we pretermit discussion of the appellant’s other main ground of attack upon liis conviction under Count 1: the insufficiency of the evidence to support conviction. . That Wright was cast in this position in the scheme was recognized by the trial judge when lie gave an instruction telling the jury that Wright’s testimony was that of an accomplice and was to “be closely examined, received with caution, and weighed with great" }, { "docid": "15104000", "title": "", "text": "934; United States v. Kershner, 5 Cir., 1970, 432 F.2d 1066, 1071; United States v. Edwards, 5 Cir., 1974, 488 F.2d 1154, 1160; United States v. Pacheco, 5 Cir., 1974, 489 F.2d 554. We have examined appellants’ allegations of prejudice under the various issues presented, and have found nothing more than a theory that separate trials might afford a better chance of acquittal. This is no justification for the granting of a severance. Tillman v. United States, supra, 406 F.2d at 934. The trial was a lengthy one, lasting seven days, the witnesses were numerous and the documentary evidence was abundant. As a consequence, objections from all parties abounded and the district judge had a tedious job keeping the trial within the proper bounds to assure the defendants a fair trial. A fair trial, not a perfect one, is all they were entitled to, United States v. Harden, 5 Cir., 1972, 469 F.2d 65; United States v. Calles, 5 Cir., 1973, 482 F.2d 1155, and in our opinion this is what they received. Affirmed. . 18 U.S.C. § 2312: “Whoever transports in interstate or foreign commerce a motor vehicle or aircraft, knowing the same to have been stolen, shall be fined not more than $5,000 or imprisoned not more than five years, or both.” 18 U.S.C. § 2313: “Whoever receives, conceals, stores, barters, sells, or disposes of any motor vehicle or aircraft, moving as, or which is a part of, or which constitutes interstate or foreign commerce, knowing the same to have been stolen, shall be fined not more than $5,000 or imprisoned not more than five five years, or both.” The count under 18 U.S.C. § 2314 was withdrawn. . Appellants make the following contentions on appeal: 1. The evidence was insufficient to prove that the vehicle seized, possession of which was attributed to the defendants, was the vehicle alleged to have been stolen. 2. The evidence was insufficient to establish Bryant’s guilt. 3. The Government was improperly allowed to adduce evidence of an extraneous offense, that is, the purported theft of a motor vehicle known as a “backhoe.”" }, { "docid": "12013748", "title": "", "text": "vehicle or aircraft, knowing the same to have been stolen, shall be fined not more than $5,000 or imprisoned not more than five years, or both.” Title 18, U.S.C., Section 2313 provides: “Whoever receives, conceals, stores, barters, sells, or disposes of any motor vehicle or aircraft, moving as, or which is a part of, or which constitutes interstate or foreign commerce, knowing the same to have been stolen, shall be fined not more than $5,000 or imprisoned not more than five years, or both.” . Inasmuch as we reverse for a new trial as to Count 1 and the evidence may differ upon retrial, we pretermit discussion of the appellant’s other main ground of attack upon liis conviction under Count 1: the insufficiency of the evidence to support conviction. . That Wright was cast in this position in the scheme was recognized by the trial judge when lie gave an instruction telling the jury that Wright’s testimony was that of an accomplice and was to “be closely examined, received with caution, and weighed with great care.” Of course in the normal criminal trial the “accomplice charge” is given at a defendant’s request in the hope of weakening the force of the testimony of one who has “turned State’s evidence”. . The arguments are also made that this was simply an attorney’s time-honored advice to a client to keep silent, and further that in no event was there any misrepresentation. Since we direct that the count be dismissed for other reasons, it is unnecessary to discuss these contentions. DYER, Circuit Judge (specially concurring) : I am of the view that the charge in this case did not infringe the appellant’s privilege against compulsory self-incrimination under the Fifth Amendment to the United States Constitution. I concur in the reasoning and the conclusions reached in the majority opinion on the other issues presented in this appeal." }, { "docid": "15104001", "title": "", "text": "18 U.S.C. § 2312: “Whoever transports in interstate or foreign commerce a motor vehicle or aircraft, knowing the same to have been stolen, shall be fined not more than $5,000 or imprisoned not more than five years, or both.” 18 U.S.C. § 2313: “Whoever receives, conceals, stores, barters, sells, or disposes of any motor vehicle or aircraft, moving as, or which is a part of, or which constitutes interstate or foreign commerce, knowing the same to have been stolen, shall be fined not more than $5,000 or imprisoned not more than five five years, or both.” The count under 18 U.S.C. § 2314 was withdrawn. . Appellants make the following contentions on appeal: 1. The evidence was insufficient to prove that the vehicle seized, possession of which was attributed to the defendants, was the vehicle alleged to have been stolen. 2. The evidence was insufficient to establish Bryant’s guilt. 3. The Government was improperly allowed to adduce evidence of an extraneous offense, that is, the purported theft of a motor vehicle known as a “backhoe.” 4. The backhoe transaction was inadmissible as evidence against Bryant. 5. The trial court improperly excluded relevant, material and exculpatory evidence of- , fered by Bryant. 6. Evidence that Impson had previously been convicted of counterfeiting tainted his convictions. 7. Testimony that the bill of sale for the loader tendered by Impson to Bryant was not valid was outside the scope of rebuttal as to Impson and prejudiced him. 8. The defendants were entitled to, and the court should have granted, a severance to each defendant. . Other circumstances bear on this issue. Bryant testified that he liad never been in Macon, Georgia. However, he had been employed by Wheeling Auto Crushers until May 1971, and as late as March or April 1970 Bryant was known to have been in Brunswick, Georgia, where the company was then operating. Wheeling used equipment similar to, but smaller than, the stolen front-end loader. In October 1970, Road Machinery Company at Macon, Georgia (the plant from which the loader was stolen that month) repaired another front-end loader for Bryant’s" }, { "docid": "114624", "title": "", "text": "both public and private, as may be necessary, should be given as free a hand as possible to deal with such situations.” We remanded for a hearing in that case because it was “unclear from the record why the court appointed Stein’s attorney to represent Morgan” and it appeared that the court may have been under an erroneous impression as to counsel’s prior representation of both defendants, no inquiry as to a possible conflict apparently having been made. No such uncertainty exists here, where thorough and repeated inquiries were made and the absence of conflict was assured. In rejecting appellants’ conflict of interest claim, we, of course, do not disparage the importance of a defendant’s right to be represented by counsel possessing zealous and undivided regard for his client’s interests. See, e. g., Glasser v. United States, 315 U.S. 60, 67-76, 62 S.Ct. 457, 86 L.Ed. 680 (1942). However, “defendants who retain counsel also have a right of constitutional dimension to representation by counsel of their own choice. . . . ” United States v. Sheiner, 410 F.2d 337, 342 (2d Cir.1969). Finding all of appellants’ contentions to be without merit, we affirm. . 18 U.S.C. § 2813 provides: “Whoever receives, conceals, stores, barters, sells, or disposes of any motor vehicle or aircraft, moving as, or which is a part of, or which constitutes interstate or foreign commerce, knowing the same to be stolen, shall be fined not more than $5,000 or imprisoned not more than five years, or both.” 18 U.S.C. § 2 provides: “(a) Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission is punishable as a principal. (b) Whoever wilfully causes an act to be done, which if directly performed by him or another, would be an offense against the United States is punishable as a principal.” . The indictment contained six counts. None of the appellants was named in Counts 4-6, which involved the transportation of stolen vehicles in violation of 18 U.S.C. §§ 2312 and 2. A ninth co-defendant, Clifford Johnson, was tried with the eight" }, { "docid": "1574419", "title": "", "text": "or from any steamboat, vessel, or wharf, or from any aircraft, air terminal, airport, aircraft terminal or air navigation facility with intent to convert to his own use any goods or chattels moving as or which are a part of or which constitute an interstate or foreign shipment of freight, express, or other property; or Whoever buys or receives or has in his possession any such goods or chattels, knowing the same to have been embezzled or stolen 18 U.S.C.A. § 659 (West 1976) (emphasis added). . Although § 659 prohibits theft as well as receiving and possessing, Ward was charged only with receiving and possessing these vehicles. . Petitioner’s reliance upon United States v. Sahley, 526 F.2d 913 (5th Cir.1976), is misplaced. In Sahley, the defendant’s conviction on three counts of violating 18 U.S.C.A. § 1014 (1976) by making a material false statement or report to a federally insured bank was predicated on three false assertions contained in one financial statement. A panel of the Former Fifth Circuit vacated the defendant’s sentence because the statutory references to “statement” and “report” made clear Congress’ intent to make each financial report, not each falsehood contained therein, the unit of prosecution. Here, the statute is equally clear in its reference to “shipment.” Because the vehicles in counts 4 and 5 were bound for different destinations, each vehicle constituted a separate shipment of goods, and hence could be the subject of separate prosecutions. . Section 2313 provides: Whoever receives, conceals, stores, barters, sells, or disposes of any motor vehicle or aircraft, moving as, or which is a part of, or which constitutes interstate or foreign commerce, knowing the same to have been stolen, shall be fined not more than $5,000 or imprisoned not more than five years, or both. 18 U.S.C.A. § 2313 (West 1970) (emphasis added). . The government has urged that we adopt the construction of § 2313 suggested by three other circuits. See United States v. Van Cleave, 599 F.2d 954 (10th Cir.1979); United States v. Bennett, 383 F.2d 398 (6th Cir.1967), cert. denied, 390 U.S. 972, 88 S.Ct. 1077," }, { "docid": "21338004", "title": "", "text": "portion of the charge, which read: “If you find that each and all of the essential elements of either the First Count or the Second Count, or both counts, have been established beyond a reasonable doubt, your verdict will be guilty on such count or counts. “If you do not so find in respect of the First Count or the Second Count, or both counts, your verdict will be not guilty on such count or counts.” . We are not to be understood as holding that Travers was necessarily innocent of wrongdoing. From Ms possession of the car stolen two months before in the District of Columbia, which at the time of its discovery on November 16 bore the public serial number of his Virginia junk purchase and the D. C. tags of his Maryland junk purchase, an inference might be drawn that he knew that the car had been stolen. Section 2313 of Title 18 (1958) provides: “Whoever receives, conceals, stores, barters, sells, or disposes of any motor vehicle or aircraft, moving as, or which is a part of, or which constitutes interstate or foreign commerce, knowing the same to have been stolen, shall be fined not more than $5,000 or imprisoned not more than five years, or both.” But appellant was not charged in the present indictment with violation of that statute. Nor could be have been in this jurisdiction, for that violation, if it occurred, took place in Maryland. . See Restatement, Judgments § 68(1) (1942). . And see Hoag v. New Jersey, 356 U.S. 464, 470-471, 78 S.Ct. 829, 2 L.Ed.2d 913 (1958) (dictum); Yates v. United States, 354 U.S. 298, 335-336, 77 S.Ct. 1064, 1 L.Ed.2d 1356 (1957) (dictum); Oollins v. Loisel, 262 U.S. 426, 430, 43 S.Ct. 618, 67 L.Ed. 1062 (1923), (dicturn) ; cf. Emich Motors Corp. v. General Motors, 340 U.S. 558, 568, 71 S.Ct. 98, L.Ed. 534 (1951). Compare United States v. Williams, 341 U.S. 70, 85-86, 71 S.Ct. 581, 95 L.Ed. 758 (1951) (concurring opinion) with^ id., 341 U.S. 95 — 96, 71 S.Ct. 581 (dissenting opinion). . As to" }, { "docid": "8676127", "title": "", "text": "of the conspiracy, each shall be fined not more than $10,-000 or imprisoned not more than five years, or both. If, however, the offense, the commission of which is the object of the conspiracy, is a misdemeanor only, the punishment for such conspiracy shall not exceed the maximum punishment provided for such misdemeanor;” and some of them, including the appellants, were also charged with various substantive crimes in the remaining 43 counts. These counts alleged the transporting of stolen vehicles in interstate commerce, in violation of 18 U.S.C. § 2312: “§ 2312. Transportation of stolen vehicles Whoever transports in interstate or foreign commerce a motor vehicle or aircraft, knowing the same to have been stolen, shall be fined not more than $5,000 or imprisoned not more than five years, or both;” the receiving, concealing and disposing of such vehicles, in violation of 18 U.S.C. § 2313: “§ 2313. Sale or receipt of stolen vehicles Whoever receives, conceals, stores, barters, sells, or disposes of any motor vehicle or aircraft, moving as, or which is part of, or which constitutes interstate or foreign commerce, knowing the same to have been stolen, shall be fined not more than $5,000 or imprisoned not more than five years, or both;” the transporting in interstate commerce of false, forged, altered or stolen securities, in violation of 18 U.S.C. § 2314: “§ 2314. Transportation of stolen goods, securities, moneys, fraudulent State tax stamps, or articles used in counterfeiting. Whoever transports in interstate or foreign commerce any goods, wares, merchandise, securities or money, of the value of $5,000 or more, knowing the same to have been stolen, converted or taken by fraud; or Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, transports or causes to be transported, or induces any person to travel in, or to be transported in interstate commerce in the execution or concealment of a scheme or artifice to defraud that person of money or property having a value of $5,000 or more; or" }, { "docid": "23041534", "title": "", "text": "court. Additionally, the appellant assigns as error the trial court’s permitting the Government to reopen its case in order to offer evidence that the theft occurred in Tennessee, a fact inadvertently omitted in the presentation of the Government’s case. To permit reopening and receipt of additional testimony omitted through mere inadvertence is within the discretion of the trial court, and we find no abuse of discretion in the instant case. We have examined each of the appellant’s contentions and find them all without merit. The judgment of conviction is affirmed. . The appellant was convicted on a count charging a violation of 18 U.S.C. § 2313 (1964) which provides: Whoever receives, conceals, stores, barters, sells, or disposes of any motor vehicle or aircraft, moving as, or which is a part of, or which constitutes interstate or foreign commerce, knowing the same to have been stolen, shall be fined not more than $5,000 or imprisoned not more than five years, or both. A count charging the appellant with violating 18 U.S.C. § 2312 (1964), which proscribes transporting a motor vehicle in interstate commerce knowing it to have been stolen, was dismissed by the trial court upon a motion by the Government before submission of the case to the jury. . Montoya v. United States, 402 F.2d 847, 850 (5th Cir. 1968); Weaver v. United States, 374 F.2d 878, 881 (5th Cir. 1967) ; Curtis v. United States, 297 F.2d 639, 640-641 (5th Cir. 1961). . Montoya v. United States, 402 F.2d 847, 850 (5th Cir. 1968) ; Duncan v. United States, 357 F.2d 195, 196-197 (5th Cir. 1966); Curtis v. United States, 297 F.2d 639, 641 (5th Cir. 1961) ; Vick v. United States, 216 F.2d 228, 232 (5th Cir. 1954). . The witness stated that if the quoted words were not actually used, Hale used words to the same effect. The witness was positive that Hale referred to the vehicle as “my car.” (Emphasis added.) . The original license plate had been replaced by one registered to Charles Ladd. No evidence was presented identifying Ladd or explaining his registration of" }, { "docid": "23003623", "title": "", "text": "by others as yet unknown. Our careful review of the entire record of this case, however, convinces us that there was sufficient and substantial evidence to support the jury convictions of each of the appellants, that the jury was fairly and fully instructed in the law, and that no reversible error intervened to deprive any of the defendants of a fair trial. Affirmed. . 18 U.S.C. § 2312 provides: § 2312. Transportation of stolen vehicles Whoever transports in interstate or foreign commerce a motor vehicle or aircraft, knowing the same to have been stolen, shall be fined not more than $5,000 or imprisoned not more than five years, or both. June 25, 1948, c. 645, 62 Stat. 806. 18 U.S.C. § 2313 provides: § 2313. Sale or receipt of stolen vehicles Whoever receives, conceals, stores, barters, sells, or disposes of any motor vehicle or aircraft, moving as, or which is a part of, or which constitutes interstate or foreign commerce, knowing the same to have been stolen, shall be fined not more than $5,000 or imprisoned not more than five years, or both. June 25, 1948, c. 645, 62 Stat. 806. The remaining counts of the 25-count indictment charged individual defendants with substantive violations of the Dyer Act. Those counts were not tried below and are not a part of this appeal. . Because of the factual complexity of the case, what follows is intended to be more illustrative than all-encompassing in spelling out the nature of the operation. In many facets, the circumstances here are similar to those reported in United States v. Goble, et al., 512 F.2d 458 (6th Cir. decided and filed March 5, 1975). . Quoted by Judge Soper in The Charge to the Jury, 1 F.R.P. 540, 545 (1940). . One additional claim is raised as a common issue. Certain defendants claim that the trial judge should have permitted them to testify and to call other defendants to testify about certain aspects of the conspiracy, without waiver of their Fifth Amendment right not to respond to questions about the car thefts which were also the" }, { "docid": "3995422", "title": "", "text": "and foreign commerce, knowing the same components to have been stolen, unlawfully converted, and taken, in violation of Title 18, United States Code, Section 2315. The government produced no evidence as to the trailer and the jury was instructed that the case was limited to the tractor. . The relevant parts of the statute provide: ' § 2312. Transportation of stolen vehicles Whoever transports in interstate or foreign commerce a motor vehicle or aircraft, knowing the same to have been stolen, shall be fined not more than $5,000 or imprisoned not more than five years, or both. § 2313. Sale or receipt of stolen vehicles Whoever receives, conceals, stores, barters, sells, or disposes of any motor vehicle or aircraft, moving as, or which is a part of, or which constitutes interstate or foreign commerce, knowing the same to have been stolen, shall be fined not more than $5,000 or imprisoned not more than five years, or both. § 2314. Transportation of stolen goods, securities, moneys, fraudulent State tax stamps, or articles used in counterfeiting Whoever transports in interstate or foreign commerce any goods, wares, merchandise, securities or money, of the value of $5,000 or more, knowing the same to have been stolen, converted or taken by fraud; ... Shall be fined not more than $10,000 or imprisoned not more than ten years, or both. § 2315. Sale or receipt of stolen goods, securities, moneys, or fraudulent State tax stamps Whoever receives, conceals, stores, barters, sells, or disposes of any goods, wares, or merchandise, securities, or money of the value of $5,000 or more, .... knowing the same to have been stolen, unlawfully converted, or taken; ... Shall be fined not more than $10,000 or imprisoned not more than ten years, or both. . The court upheld the conviction on the grounds that the presence of the engine block and frame in two separate parts on defendant’s property raised the inference that the vehicle had been stolen by defendant and cut up after-wards. United States v. Bishop, 434 F.2d 1284, 1287 (6th Cir.1970). . The penalty under each of the Dyer" }, { "docid": "1380059", "title": "", "text": "in the car when Mitchell was arrested, no evidence supports the hypothesis that Mitchell was in “sole and exclusive” possession of the vehicle, and thus the trial court gave an improper instruction. Moreover, Mitchell contends the instruction was improper because his possession was not “unexplained.” Mitchell’s sister had testified that Jasper Coulter picked Mitchell up at her apartment a few hours before the arrest. We also disagree with these contentions. The evidence of possession here adequately supported the challenged instruction. Mitchell was driving the car when he was arrested, and he told police that the car belonged to his mother and to his mother’s friend, implying that he possessed it with their permission. As for Mitchell’s “explanation” at trial furnished by his sister’s testimony, it is sufficient to note that the challenged instruction permits the inference of guilt only from unexplained possession of recently stolen property. “[T]he mere fact that there is some evidence tending to explain a defendant’s possession consistent with innocence does not bar instructing the jury on the inference.” Barnes v. United States, 412 U.S. 837, 845 n. 9, 93 S.Ct. 2357, 2362, 37 L.Ed.2d 380 (1973). It is for the jury to decide whether the explanation was adequate to negate the inference. Affirmed. . 18 U.S.C. § 2312 reads: Whoever transports in interstate or foreign commerce a motor vehicle or aircraft, knowing the same to have been stolen, shall be fined not more than $5,000 or imprisoned not more than five years, or both. . 18 U.S.C. § 2313 reads: Whoever receives, conceals, stores, barters, sells, or disposes of any motor vehicle or aircraft, moving as, or which is a part of, or which constitutes interstate or foreign commerce, knowing the same to have been stolen, shall be fined not more than $5,000 or imprisoned not more than five years, or both. . The Supreme Court cases cited by appellant do not reach the issue of whether testimony about a defendant’s post-arrest silence violates the defendant’s right to remain silent under Miranda. That issue is not raised here, presumably because Mitchell signed a written waiver of" }, { "docid": "3782470", "title": "", "text": "the automobile were introduced. Since these constituted an attempted explanation by Defendant of his possession, and gave rise to questions of truthfulness of the .explanation, the instruction was appropriate. Affirmed. . “Whoever transports in interstate or foreign commerce a motor vehicle or aircraft, knowing the same to have been stolen, shall be fined not more than $5,000 or imprisoned not more than five years, or both.” 18 U.S.C.A. § 2312. . Pursuant to 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 ease on the Summary Calendar and to notify the parties in writing. See Murphy v. Houma Well Service, 5 Cir., 1969, 409 F.2d 804, Part I; and Huth v. Southern Pacific Co., 5 Cir., 1969, 417 F.2d 526, Part I. . There is some dispute in the record whether the automobile was stolen on April 21 or April 28. . The Orser charge with paragraph numbers, e. g. [1], and the portions omitted in the Trial Court in italics is set out below : “Possession of property recently stolen, if not satisfactorily explained, is a circumstance from which the jury may reasonably draw the inference and find that the person in possession knew the property had been stolen. “Possession in one state of property recently stolen in another state, if not satisfactorily explained, is a circumstance from which the jury might reasonably infer and find in the light of surrounding circumstances that the person in possession not only knew it to be stolen property, but also transported or caused it to be transported in Interstate Commerce. “The term, ‘recently’ is a relative term which has no fixed meaning. Whether property may be considered as recently stolen, depends upon the nature of the property and all the facts and circumstances shown by the evidence. The longer the period of time since the theft, the weaker the inference which may be drawn from unexplained possession. “If you find from the evidence beyond a reasonable" } ]

[ { "docid": "23153624", "title": "", "text": "by reapplying JMOL standard), cert. denied, — U.S.-, 117 S.Ct. 1818, 137 L.Ed.2d 1027 (1997). Legal standards given to the jury are reviewed without deference to the trial court, whereas the jury’s resolution of factual disputes are reviewed to determine whether there is substantial evidence to support them. See Markman v. Westview Instruments, Inc., 52 F.3d 967, 975-76, 34 USPQ2d 1321, 1325-26 (Fed.Cir.1995) (in banc), aff'd, 517 U.S. 370, 116 S.Ct. 1384, 134 L.Ed.2d 577, 38 USPQ2d 1461 (1996). In reviewing factual issues for substantial evidence, the inquiry is whether a reasonable jury, given the record before it viewed as a whole, could have arrived at the conclusion it did. See Texas Instruments, 90 F.3d at 1563, 39 USPQ2d at 1496. 2. It is standard doctrine that determining infringement is a two-step process. See id., 39 USPQ2d at 1497. First, the court must construe the asserted claims as a matter of law to ascertain their meaning and scope. See id. Second, the claims as construed are compared to the allegedly infringing device. See id. To infringe a claim, each claim limitation must be present in the accused product, literally or equivalently. See Sofamor Danek Group, Inc. v. DePuy-Motech, Inc., 74 F.3d 1216, 1220, 37 USPQ2d 1529, 1531 (Fed.Cir.1996). Thus, the construction of each claim limitation is crucial to the infringement determination. We begin with the first step, claim construction. The pertinent claim limitation here is the means for locking and releasing, recited specifically as: means for locking the connecting means in one of the first and second positions and for selectively releasing the connecting means to allow the connecting means to be slid into the other of the first and second positions therefor; ’282 patent, col. 6, 11. 56-60. As the parties agree, this limitation is a so-called means-plus-function claim limitation drafted pursuant to 35 U.S.C. § 112, ¶ 6 (1994). Section 112, ¶ 6 specifies that such limitations “shall be construed to cover the corresponding structure ... described in the specification and equivalents thereof.” Here, the most closely corresponding structure described in the specification (that is, in the ■written" } ]

[ { "docid": "14575224", "title": "", "text": "front wall occurs at the top, not the bottom, of the central portion, contravening the explicit requirement in claims 2 and 11 to the contrary. Accordingly, literal infringement is precluded. See, e.g., Mas-Hamilton Group v. LaGard, Inc., 156 F.3d 1206, 1211, 48 USPQ2d 1010, 1015 (Fed.Cir.1998) (“To prove literal infringement, the patentee must show that the accused device contains every limitation in the asserted claims. If even one limitation is missing or not met as claimed, there is no literal infringement.”) (internal citations omitted). Moreover, because merger of the bottom side and central portion of the front wall at the interface of D3 and D4 constitutes the very embodiment that Spectrum explicitly relinquished during prosecution, doctrine of equivalents infringement is precluded as well under the opposing doctrine of prosecution history estoppel. See, e.g., Wang Lab., Inc. v. Mitsubishi Elecs. Am., Inc., 103 F.3d 1571, 1577, 41 USPQ2d 1263, 1269 (Fed.Cir.1997) (“Prosecution history estoppel acts as one check on application of the doctrine of equivalents, by precluding a patentee from regaining, through litigation, coverage of subject matter relinquished during prosecution of the application for the patent.”) (internal citations omitted). Spectrum attempts to evade the consequences of a straightforward determination of noninfringement on this basis by presenting, in essence, two arguments. First, citing Moleculon Research Corp. v. CBS, Inc., 793 F.2d 1261, 1271, 229 USPQ 805, 812 (Fed.Cir.1986), for the proposition that a claim employing the transitional term “comprising” does not exclude additional, unrecited elements, Spectrum contends that the open “comprising” language of claims 2 and 11 permits Spectrum to deconstruct Sterilite’s cart and call line “X” the merging interface of the bottom side and front wall in Sterilite’s accused crate, because Sterilite has done nothing more than add an irrelevant, unrecit-ed element to the “front” of an otherwise infringing device. Second, Spectrum argues that nothing of record either limits the front wall recited in claims 2 and 11 to any particular height or precludes claim 2 and 11 (again relying on the open claim language “comprising”) from encompassing crates in which the bottom side merges with both the bottom and top" }, { "docid": "14575223", "title": "", "text": "accused product meets each limitation common to claims 2 and 11. Of particular note is Spectrum’s reliance on line “X” as representing the set of points along which Sterilite’s accused crate meets the limitation in claims 2 and 11 requiring that the upwardly tapering bottom side merge with at least a substantial portion of the bottom edge of the central portion of the front wall. Spectrum recognizes that it must rely on line “X” because unless the merger of the bottom side and the front wall occurs along line “X”, Sterilite’s accused product cannot infringe either claim 2 or 11, whether literally or by equivalents. As the relevant portion of Sterilite’s reply-brief diagram of its accused crate’s side view, shown in Figure 4, makes clear, if the upwardly tapering (D2) bottom side (Dl) of the accused crate is considered to merge with the front wall at the interface of D3 and D4, rather than at the interface of D2 and D3 as asserted by Spectrum, the merger of the accused crate’s bottom side and its front wall occurs at the top, not the bottom, of the central portion, contravening the explicit requirement in claims 2 and 11 to the contrary. Accordingly, literal infringement is precluded. See, e.g., Mas-Hamilton Group v. LaGard, Inc., 156 F.3d 1206, 1211, 48 USPQ2d 1010, 1015 (Fed.Cir.1998) (“To prove literal infringement, the patentee must show that the accused device contains every limitation in the asserted claims. If even one limitation is missing or not met as claimed, there is no literal infringement.”) (internal citations omitted). Moreover, because merger of the bottom side and central portion of the front wall at the interface of D3 and D4 constitutes the very embodiment that Spectrum explicitly relinquished during prosecution, doctrine of equivalents infringement is precluded as well under the opposing doctrine of prosecution history estoppel. See, e.g., Wang Lab., Inc. v. Mitsubishi Elecs. Am., Inc., 103 F.3d 1571, 1577, 41 USPQ2d 1263, 1269 (Fed.Cir.1997) (“Prosecution history estoppel acts as one check on application of the doctrine of equivalents, by precluding a patentee from regaining, through litigation, coverage of subject" }, { "docid": "8569633", "title": "", "text": "if it incorporates every limitation of a claim, either literally or under the doctrine of equivalents.” Nazomi Commc’ns, Inc. v. Arm Holdings, PLC, 403 F.3d 1364, 1732 (Fed.Cir.2005). If, however, even one claim limitation is missing or not met, there is no literal infringement. Mas-Hamilton Group v. LaGard, Inc., 156 F.3d 1206, 1211 (Fed.Cir.1998). In this case, the district court concluded that Publisher does not contain each of the limitations of the asserted claims: In Publisher, users are subscribed to “publications,” which are similar to [the] services [disclosed in the ’050 patent], A publication is a “broadcast” of information to a group of “recipients.” The creator of the publication determines who is a recipient of the publication and when it is sent. The publication sent to a recipient is simply information obtained through a query or queries on a database. The Publisher software is only designed to be run with email. In other words, the recipient output device is simply an email address. There are, however, several different formatting options for such email, depending upon the type of email server employed. See Patent Judgment, 331 F.Supp.2d at 437. As noted by the district court, Publisher “does not make any association between the [output] devices and the format. The system does not know what the devices are or the styles that each device needs to properly receive and display output.” Id. at 439-40. Rather, “[i]t only supports one style per publication.” Id. at 443. Thus, Publisher does not provide an association between devices and device-specific styles on a device by device basis as required by the court’s claim construction. For at least this reason, the district court properly concluded that Business Objects does not literally infringe. The district court further determined that MicroStrategy could not “rely on the doctrine of equivalents to prove infringement” because MicroStrategy’s expert “failed to [opine] in a sufficient manner regarding the doctrine of equivalents.” Id. at 445 (citing Zelinski v. Brunswick Corp., 185 F.3d 1311 (Fed.Cir.1999) (finding a conclusory statement by a patent attorney expert insufficient to prove infringement under the doctrine of equivalents)). Because MicroStrategy" }, { "docid": "20031893", "title": "", "text": "domestic production, use, or sale, of an accused device is not in issue, then, to show infringement of a patent, a patentee need only “supply sufficient evidence to prove that the accused product or process contains, either literally or under the doctrine of equivalents, every limitation of the properly construed claim.” Seal-Flex, Inc. v. Athletic Track and Court Const., 172 F.3d 836, 842 (Fed.Cir.1999). Like anticipation, infringement is a factual inquiry. General Elec. Co. v. Nintendo Co., supra at 1353; Streamfeeder, LLC v. Sure-Feed Systems, Inc., 175 F.3d 974, 981 (Fed.Cir.1999). Unlike anticipation, the standard for prov ing infringement is by a preponderance of the evidence. See, San Huan New Materials High Tech, Inc. v. International Trade Com’n, 161 F.3d 1347, 1357 (Fed.Cir.1998), pet. for cert. dismissed, — U.S. —, 120 S.Ct. 394, 145 L.Ed.2d 306 (1999); Enercon GmbH v. International Trade Com’n, 151 F.3d 1376, 1384 (Fed.Cir.1998), cert. denied, — U.S. —, 119 S.Ct. 1803, 143 L.Ed.2d 1007 (1999). In an infringement analysis, after construing the claims that are alleged to be infringed, the Court compares those claims to the allegedly infringing device. See, Markman I, supra at 976; see also, Cordis v. SciMed Life Systems, Inc., 982 F.Supp. 1358, 1363 (D.Minn.1997). A patent owner may prevail on a claim of infringement on one of two theories: literal infringement, or the doctrine of equivalents. Generally, to show literal infringement, a patentee must prove that “every limitation recited in the claim is found in the accused device, i.e., [that] the properly construed claim reads on the accused device exactly.” Cole v. KimberlyClark Corp., 102 F.3d 524, 532 (Fed.Cir.1996), cert. denied, 522 U.S. 812, 118 S.Ct. 56, 139 L.Ed.2d 20 (1997); see also, Laitram Corp. v. Rexnord, Inc., 939 F.2d 1533, 1539 (Fed.Cir.1991) (“the failure to meet a single limitation is sufficient to negate infringement of the claim.”). Under the doctrine of equivalents, which the Courts apply to prevent “fraud on the patent,” Graver Tank & Mfg. Co. v. Linde Air Prods. Co., 339 U.S. 605, 608, 70 S.Ct. 854, 94 L.Ed. 1097 (1950), by finding infringement where a party steals" }, { "docid": "8970309", "title": "", "text": "to make a sufficient showing on an essential element of its case with respect to which it has the burden of proof, the moving party is entitled to judgment as a matter of law. See Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). IV. DISCUSSION Based on the record before me, I conclude that, with the limited exception noted hereafter, there are genuine issues of material fact that prevent the entry of summary judgment. A. Defendant’s Motion for Summary Judgment of Nonr-Infringement With regard to this motion, there is a material issue of fact regarding Defendants’ infringement of the “control trading” limitation; however, Plaintiffs are barred from asserting the doctrine of equivalents as to this limitation, due to prosecution history estoppel. 1. Literal Infringement In a patent infringement analysis, application of the claim to the accused process or product is a question of fact. Kustom Signals, Inc. v. Applied Concepts, Inc., 264 F.3d 1326, 1332 (Fed.Cir.2001). Summary judgment in patent suits is appropriate when it is apparent that only one conclusion regarding infringement could be reached by a reasonable jury. Telemac Cellular Corp. v. Topp Telecom, Inc., 247 F.3d 1316, 1323 (Fed.Cir.2001). Literal infringement is found only when each and every limitation of a claim is present in the accused product. Telemac Cellular Corp. v. Topp Telecom, Inc., 247 F.3d 1316, 1323 (Fed.Cir.2001). Defendants admit that their system infringes the first two contested claims, as I have construed them, namely “system state” and “bid/offer system state.” (See D.I. 496 at 6; eSpeed II, 2004 U.S. Dist. LEXIS 13486 at *26-*27.) Defendants contend, however, that their system “does not, by deliberate design, provide the end results described in the asserted ’580 patent claims, namely, a period of exclusivity during which participants can 'control trading by transacting additional volume,’ as recited in representative claim 20 .... ” (D.I. 482 at 19.) I have construed the term “control trading” to mean “to exercise authority to hold up a trade for as long as a participant continues to respond to its contra-party’s size offering.” (D.I. 516 at" }, { "docid": "16329369", "title": "", "text": "test for patent infringement requires a two step analysis: “First, the claim must be properly construed to determine its scope and meaning. Second, the claim as properly construed must be compared to the accused device or process.” Carroll Touch, Inc. v. Electro Mech. Sys., Inc., 15 F.3d 1573, 1576 (Fed.Cir.1993). “In order for a court to find infringement, the plaintiff must show the presence of every limitation or its substantial equivalent in the accused device.” KX Industries, 18 Fed.Appx. 871, 875, 2001 WL 902507, *3 (Fed.Cir.2001)(citing Wolverine World Wide, Inc. v. Nike, Inc., 38 F.3d 1192, 1199 (Fed.Cir.1994)). Although claim construction is an issue of law, the determination of infringement is a question of fact. Id. “A district court should approach a motion for summary judgment on the fact issue of infringement with great care.” Cole v. Kimberly-Clark Corp., 102 F.3d 524, 528 (Fed.Cir.1996). Nonetheless, summary judgment of infringement may be granted when a rational jury could only conclude that infringement has occurred. See Karlin Tech. Inc. v. Surgical Dynamics, Inc., 177 F.3d 968, 974-75 (Fed.Cir.1999). INFRINGEMENT UNDER THE DOCTRINE OF EQUIVALENTS A product may infringe a patent either literally or equivalently. Cybor Corp. v. FAS Techs., 138 F.3d 1448, 1459 (Fed.Cir.1998). Plaintiffs cannot argue that each limitation of the claims at issue in patents ’942, ’912, ’274, and ’974, are satisfied exactly by the accused products, as required to prove literal infringement. Instead, they rely on the doctrine of equivalents which “prevents an accused infringer from avoiding liability for infringement by changing only minor or insubstantial details of a claimed invention while retaining the invention’s essential identity.” Festo Corp. v. Shoketsu Kinzoku Kogyo Kabushiki Co., 234 F.3d 558, 564 (Fed.Cir.2000)(“Festo VI”). Infringement under the doctrine of equivalents is found “only when a patentee shows by a preponderance of the evidence that the accused product or process contain[s] elements identical or equivalent to each claimed element of the patented invention.” Warner-Jenkinson Co. v. Hilton Davis Chem. Co., 520 U.S. 17, 40, 117 S.Ct. 1040, 137 L.Ed.2d 146 (1997). Application of the doctrine of equivalents requires a fact intensive analysis to" }, { "docid": "11168192", "title": "", "text": "perform the function in a less restricted manner. Here, the Court agrees with EPC that that structure is the button which receives and transfers forces which overcome the reset button spring and move the locking member away from its engaged position so that the coiled compression spring can then push the diaphragm back to its infold position. 3. Infringement Donaldson concedes that its original Air Alert literally infringes the ’456 patent and thus EPC is entitled to partial summary judgment as to infringement by that device. With regard to its subsequent NG Air Alert device, however, Donaldson maintains its noninfiringement defense and counterclaim. See Doc. no. 100, Second Amended Answer and Counterclaim, §§74 and 82. Thus, the Court’s review of the parties’ cross-motions on infringement will concern only the NG Air Alert. To show literal infringement of a patent, a patentee must supply sufficient evidence to prove that the accused product or process meets every element or limitation of a claim. See KCJ Corp., 223 F.3d at 1358 (“Literal infringement of a claim occurs when every limitation recited in the claim appears in the accused device, i.e., when ‘the properly construed claim reads on the accused device exactly.’ ”) (internal quotation omitted); accord, Rohm and Haas Co. v. Brotech Corp., 127 F.3d 1089, 1091 (Fed.Cir.1997). In contrast, “[infringement under the doctrine of equivalents requires that the accused product contain each limitation of the claim or its equivalent.” KCJ Corp., 223 F.3d at 1358 (citing Warner-Jenkinson Co. v. Hilton Davis Chem. Co., 520 U.S. 17, 40, 117 S.Ct. 1040, 137 L.Ed.2d 146 (1997)). “An element in the accused product is equivalent to a claim limitation if the differences between the two are ‘insubstantial’ to one of ordinary skill in the art.” KCJ Corp., 223 F.3d at 1358. Because the patent at issue involves a mechanical invention the Court will also apply the function-way-result test for additional guidance on the question of equivalence. See Dawn Equip. Co. v. Kentucky Farms, Inc., 140 F.3d 1009, 1016 (Fed.Cir.1998) (discussing ' Supreme Court’s observation in Warner-Jenkinson Co. v. Hilton Davis Chemical Co., 520 U.S. 17," }, { "docid": "8569632", "title": "", "text": "Instead, this paragraph is open to an interpretation requiring support for multiple types of subscriber output devices, see id., col. 5, 11. 19-22, even though, in practice, all the subscribers may receive their subscription via only one format (e.g., e-mail or another suitable format). Therefore, this paragraph does not conflict with a claim construction requiring support for multiple device types or an association of styles with devices on an individual, device-by-device basis. The district court read the specification correctly in its well-reasoned decision. See Patent Judgment, 331 F.Supp.2d at 443 (commenting that, while the system must be structured to support multiple device types, in operation, it is not necessary for the output devices to be different). In sum, based on the claim language in proper context and the specification that supplies much of that context, the district court correctly interpreted the claims. The district court then turned correctly to analyze Business Object’s accused product, i.e. the Broadcast Agent Publisher (Publisher). “[I]nfringement is assessed by comparing the accused device to the claims!;] the accused device infringes if it incorporates every limitation of a claim, either literally or under the doctrine of equivalents.” Nazomi Commc’ns, Inc. v. Arm Holdings, PLC, 403 F.3d 1364, 1732 (Fed.Cir.2005). If, however, even one claim limitation is missing or not met, there is no literal infringement. Mas-Hamilton Group v. LaGard, Inc., 156 F.3d 1206, 1211 (Fed.Cir.1998). In this case, the district court concluded that Publisher does not contain each of the limitations of the asserted claims: In Publisher, users are subscribed to “publications,” which are similar to [the] services [disclosed in the ’050 patent], A publication is a “broadcast” of information to a group of “recipients.” The creator of the publication determines who is a recipient of the publication and when it is sent. The publication sent to a recipient is simply information obtained through a query or queries on a database. The Publisher software is only designed to be run with email. In other words, the recipient output device is simply an email address. There are, however, several different formatting options for such email, depending upon" }, { "docid": "23015530", "title": "", "text": "of Ebco’s WaterGuard I, II, and III no-spill adapters. “To prove literal infringement, the patentee must show that the accused device contains every limitation in the asserted claims. If even one limitation is missing or not met as claimed, there is no literal infringement.” Mas-Hamilton Group v. LaGard, Inc., 156 F.3d 1206, 1211, 48 USPQ2d 1010, 1014-15 (Fed.Cir.1998). Judgment as a matter of law of no literal infringement is appropriate if no reasonable fact finder could determine that the accused devices meet every limitation of the properly construed claims. See Gentry Gallery, Inc. v. Berkline Corp., 134 F.3d 1473, 1476, 45 USPQ2d 1498, 1500 (Fed.Cir.1998). As we have discussed, the feed tube/probe limitation in the asserted claims is properly construed to refer to a single feed tube/probe with a single flow path for both liquid and air. There is no dispute that the WaterGuard devices use separate feed tubes for water and air. Thus, no reasonable fact finder could determine that the accused devices meet every limitation of the properly construed claims of the ’531 and ’855 patents. Consequently, we reverse the district court’s literal infringement decision and hold that Ebco is entitled to judgment as a matter of law concerning that issue. 2. Doctrine of Equivalents Judgment as a matter of law of no infringement under the doctrine of equivalents is appropriate if no reasonable fact finder could determine that a claim limitation is met in the accused device by a substantial equivalent. See Gentry Gallery, 134 F.3d at 1476, 45 USPQ2d at 1500. “Arguments and amendments made to secure allowance of a claim, especially those distinguishing prior art, presumably give rise to prosecution history estoppel.” Wang Lab., Inc. v. Mitsubishi Elees., 103 F.3d 1571, 1578, 41 USPQ2d 1263, 1269 (Fed.Cir.1997) (citation omitted). Prosecution history estoppel prevents operation of the doctrine of equivalents from expanding a claim limitation to include subject matter surrendered during the patent’s prosecution. See id.; see also Bai, 160 F.3d at 1354, 48 USPQ2d at 1677. The prosecution history of the ’531 patent shows that Elkay surrendered coverage of a separate feed tube or flow" }, { "docid": "14575235", "title": "", "text": "claim),” 793 F.2d at 1271, 229 USPQ at 812, but in the very same sentence the court limited this broad view of “comprising” to avoid altering the scope of the particular claim step at issue. See id. Neither may the term “comprising” alter the scope of the merger element in the claim at issue here. “Comprising” is not a weasel word with which to abrogate claim limitations. See id. To summarize, we conclude that the limitation in claims 2 and 11 requiring that the bottom side merge with the bottom edge of the central portion of the front wall excludes the possibility that the bottom side also merges with the top edge. The claim term “comprising” cannot restore this excluded subject matter. V Spectrum argues that Sterilite’s accused crate meets each limitation in claim 2, and therefore literally infringes this claim. Spectrum correctly understands that “[i]f even one limitation is missing or not met as claimed, there is no literal infringement.” Mas-Hamilton Group v. LaGard, Inc., 156 F.3d 1206, 1211, 48 USPQ2d 1010, 1015 (Fed.Cir.1998). Summary judgment of no literal infringement is proper, therefore, when no reasonable jury could find that every limitation recited in a properly construed claim is found in an accused device. See Bai v. L & L Wings, Inc., 160 F.3d 1350, 1353-54, 48 USPQ2d 1674, 1676 (Fed.Cir.1998) (citing Cole v. Kimberly-Clark Corp., 102 F.3d 524, 532, 41 USPQ2d 1001, 1007 (Fed.Cir.1996)). As discussed, claim 2 excludes from its literal scope the possibility that a crate’s bottom side merges with both the bottom and top edge of the central portion of the front wall. Yet Spectrum unequivocally asserts that this is precisely the configuration found in Sterilite’s accused product. Accordingly, no reasonable jury could find that Sterilite’s accused crate meets all the limitations in claim 2, and thus Sterilite’s crate cannot literally infringe claim 2 as a matter of law. Spectrum next argues that even if not literally infringed, Sterilite’s accused crate nevertheless infringes claim 2 under the doctrine of equivalents. Spectrum also argues that Sterilite’s accused crate infringes claim 11 under the doctrine of equivalents." }, { "docid": "22847261", "title": "", "text": "asserted claim. Mas-Hamilton Group v. LaGard, Inc., 156 F.3d 1206, 1211, 48 USPQ2d 1010, 1014-15 (Fed.Cir.1998). Infringement under the doctrine of equivalents requires the patentee to prove that the accused device contains an equivalent for each limitation not literally satisfied. Dawn Equip. Co. v. Kentucky Farms, 140 F.3d 1009, 1015, 46 USPQ2d 1109, 1113 (Fed.Cir.1998). A determination of infringement, whether literal or under the doctrine of equivalents, is a question of fact. Bai v. L & L Wings, Inc., 160 F.3d 1350, 1353, 48 USPQ2d 1674, 1676 (Fed.Cir.1998). Summary judgment of no literal infringement is proper when, construing the facts in a manner most favorable to the nonmovant, no reasonable jury could find that the accused system meets every limitation recited in the properly construed claims. Bai, 160 F.3d at 1353. A. Based on its construction of the phrase “located at predesignated sites such as consumer stores,” the district court held that Coolsavings’ system did not literally infringe Claims 1 or 25 of the '041 patent. Because this phrase does not limit Claim 1 and the district court did not further construe Claim 1, this court vacates the judgment of no literal infringement of Claim 1 and remands for claim construction and appropriate infringement proceedings. With respect to Claim 25, this court construed the phrase “located at predesignated sites such as consumer stores” to require that the physical position of the terminal be designated before placement of the terminal at a point of sale location. For Coolsavings to be liable for literal infringement Coolsavings’ accused system must designate the physical position of the terminals before location of the terminals at a point of sale. Coolsavings’ system, however, does not designate (or even recognize) the physical position of computers connecting to its website; thus, Coolsavings’ system does not literally satisfy this limitation of Claim 25. Under the proper claim construction, this court therefore affirms the district court’s holding that Coolsavings’ system does not literally infringe Claim 25 of the '041 patent. Because this holding is dispositive on literal infringement, this court need not opine on Catalina’s argument that an Internet-accessible home" }, { "docid": "16251179", "title": "", "text": "Inc., 355 F.3d 1327, 1333-34 (Fed.Cir.2004); ACTV, Inc., 346 F.3d at 1087 (“In construing a means-plus-function limitation drafted in accordance with § 112, ¶ 6, the recited function within that limitation must first be identified. Then, the written description must be examined to determine the structure that corresponds to and performs that function.”) (citations omitted). Infringement, in turn, depends upon a comparison of the properly construed claims of the patent to the accused device. See, e.g., Deering Precision Instruments, L.L.C. v. Vector Distrib. Sys., Inc., 347 F.3d 1314, 1322 (Fed.Cir.2003) (“An infringement analysis, whether literal or under the doctrine of equivalents, requires two steps: (1) construction of the claims to determine the scope and meaning of the asserted claims; and (2) comparison of the properly construed claims with the allegedly infringing device.”), cert. denied, — U.S. -, 124 S.Ct. 1426, 158 L.Ed.2d 88 (2004). A patentee may prove infringement of a means-plus-function claim under either a literal infringement theory or a doctrine of equivalents theory. See Lockheed Martin Corp. v. Space Sys./Loral, Inc., 324 F.3d 1308, 1320 (Fed. Cir.2003) (“An accused structure that does not literally infringe a means-plus-function claim may nevertheless infringe under the doctrine of equivalents.”). “Literal infringement of a § 112 ¶ 6 claim requires that the relevant structure in the accused device perform the identical function recited in the claim and be identical or equivalent to the corresponding structure in the specification.” Id. (emphasis added). For purposes of literal infringement, an accused device is “equivalent to the corresponding structure in the specification” if it is “insubstantially different with respect to structure.” See, e.g., Odetics, Inc. v. Storage Tech. Corp., 185 F.3d 1259, 1267 (Fed.Cir.1999) (emphasis added). Infringement under the doctrine of equivalents likewise turns on whether or not there are only “insubstantial differences” between the patented claim and the accused infringing device, see Talbert Fuel Sys. Patents Co. v. Unocal Corp., 347 F.3d 1355, 1360 (Fed.Cir.2003) (citing Warner-Jenkinson Co. v. Hilton Davis Chem. Co., 520 U.S. 17, 39-10, 117 S.Ct. 1040, 137 L.Ed.2d 146 (1997)), but that does not mean that the analysis of claim construction," }, { "docid": "23015529", "title": "", "text": "1, 3, and 5 of the ’531 patent. Because Elkay’s statement put competitors on clear notice of that linkage and because the ’531 and ’855 patents stem from the same genus, it is proper to consider the prosecution history of claim 1 of the ’855 patent to be an amalgam of the prosecution histories of both patents. Consequently, we hold that Elkay’s relinquishment of a potential construction of the feed tube limitation in claim 1 of the ’531 patent to include separate feed tubes for liquid and air applies to the feed probe limitation in claim 1 of the ’855 patent. Therefore, as with the ’531 patent, we conclude that the feed probe limitation in claim 1 of the ’855 patent is properly construed as referring to a single feed probe with a single flow path for both liquid and air. B. Comparing the Construed Claims to the Accused Devices 1. Literal Infringement The literal infringement issue in this case centers on the feed tube/probe limitation of the asserted independent claims and the relevant structure of Ebco’s WaterGuard I, II, and III no-spill adapters. “To prove literal infringement, the patentee must show that the accused device contains every limitation in the asserted claims. If even one limitation is missing or not met as claimed, there is no literal infringement.” Mas-Hamilton Group v. LaGard, Inc., 156 F.3d 1206, 1211, 48 USPQ2d 1010, 1014-15 (Fed.Cir.1998). Judgment as a matter of law of no literal infringement is appropriate if no reasonable fact finder could determine that the accused devices meet every limitation of the properly construed claims. See Gentry Gallery, Inc. v. Berkline Corp., 134 F.3d 1473, 1476, 45 USPQ2d 1498, 1500 (Fed.Cir.1998). As we have discussed, the feed tube/probe limitation in the asserted claims is properly construed to refer to a single feed tube/probe with a single flow path for both liquid and air. There is no dispute that the WaterGuard devices use separate feed tubes for water and air. Thus, no reasonable fact finder could determine that the accused devices meet every limitation of the properly construed claims of the ’531" }, { "docid": "22847260", "title": "", "text": "— col. 2,1. 4, col. 2,11. 32-38, and col. 4, 11. 65-67. As discussed above, the applicants stated during prosecution that their invention involved terminals “located in stores” for the dispensing of coupons “on-site.” This descriptive language during the acquisition of the patent does not make the store location more than an example of a point of sale location. This court thus' holds that the phrase “located at predesignated sites such as consumer stores” requires designation of the physical site of the terminal before location of the terminal at a point of sale location. III. After claim construction, the fact finder compares the properly construed claims to the accused device or process. Cybor Corp., 138 F.3d at 1454. To prove infringement, the patentee must show that the accused device meets each claim limitation either literally or under the doctrine of equivalents. Seal Flex, Inc. v. Athletic Track and Court Const., 172 F.3d 836, 842, 50 USPQ2d 1225, 1228 (Fed.Cir.1999). Literal infringement requires the patentee to prove that the accused device contains each limitation of the asserted claim. Mas-Hamilton Group v. LaGard, Inc., 156 F.3d 1206, 1211, 48 USPQ2d 1010, 1014-15 (Fed.Cir.1998). Infringement under the doctrine of equivalents requires the patentee to prove that the accused device contains an equivalent for each limitation not literally satisfied. Dawn Equip. Co. v. Kentucky Farms, 140 F.3d 1009, 1015, 46 USPQ2d 1109, 1113 (Fed.Cir.1998). A determination of infringement, whether literal or under the doctrine of equivalents, is a question of fact. Bai v. L & L Wings, Inc., 160 F.3d 1350, 1353, 48 USPQ2d 1674, 1676 (Fed.Cir.1998). Summary judgment of no literal infringement is proper when, construing the facts in a manner most favorable to the nonmovant, no reasonable jury could find that the accused system meets every limitation recited in the properly construed claims. Bai, 160 F.3d at 1353. A. Based on its construction of the phrase “located at predesignated sites such as consumer stores,” the district court held that Coolsavings’ system did not literally infringe Claims 1 or 25 of the '041 patent. Because this phrase does not limit Claim 1 and" }, { "docid": "20031892", "title": "", "text": "do not seek Summary Judgment on their claim that Bridgewood’s automatic transmission fluid exchanging device infringes Claim 13 of the Viken Patent. Our analysis of these allegations of infringement is necessarily curtailed by our decision to estop Bridge-wood from denying that it infringed Claims 1, 2, 3, 4, and 12, of the Viken Patent. Summary Judgment is granted in favor of the Plaintiffs on those issues, although resolution of Bridgewood’s liability necessarily awaits a decision on Bridge-wood’s affirmative defenses. In practical terms, therefore, our focus is drawn to Bridgewood’s Motion for Summary Judgment on the Plaintiffs’ assertion, that Bridgewood’s fluid changing apparatus infringes Claim 13 of the Viken Patent. i. Standard of Review. Patent infringement occurs when a device, that is literally covered by the claims of an existing patent, or is equivalent to the claimed subject matter, is made, used, or sold, without the authorization of the patent holder, during the term of the patent. See, Title 35 U.S.C. § 271; Multiform Desiccants, Inc. v. Medzam, Ltd., 133 F.3d 1473, 1476 (Fed.Cir.1998). When the domestic production, use, or sale, of an accused device is not in issue, then, to show infringement of a patent, a patentee need only “supply sufficient evidence to prove that the accused product or process contains, either literally or under the doctrine of equivalents, every limitation of the properly construed claim.” Seal-Flex, Inc. v. Athletic Track and Court Const., 172 F.3d 836, 842 (Fed.Cir.1999). Like anticipation, infringement is a factual inquiry. General Elec. Co. v. Nintendo Co., supra at 1353; Streamfeeder, LLC v. Sure-Feed Systems, Inc., 175 F.3d 974, 981 (Fed.Cir.1999). Unlike anticipation, the standard for prov ing infringement is by a preponderance of the evidence. See, San Huan New Materials High Tech, Inc. v. International Trade Com’n, 161 F.3d 1347, 1357 (Fed.Cir.1998), pet. for cert. dismissed, — U.S. —, 120 S.Ct. 394, 145 L.Ed.2d 306 (1999); Enercon GmbH v. International Trade Com’n, 151 F.3d 1376, 1384 (Fed.Cir.1998), cert. denied, — U.S. —, 119 S.Ct. 1803, 143 L.Ed.2d 1007 (1999). In an infringement analysis, after construing the claims that are alleged to be infringed, the" }, { "docid": "15067905", "title": "", "text": "of the infringement analysis requires comparison of the accused device to the properly construed claims. Cybor, 138 F.3d at 1454. To prove infringement, the patentee must show that the accused device meets each claim limitation, either literally or under the doctrine of equivalents. Seal-Flex, Inc. v. Athletic Track & Court Constr., 172 F.3d 836, 842 (Fed.Cir.1999). With respect to literal infringement, it is clear that the VX-10 does not literally meet each limitation of any of the asserted claims 1, 2, 4, and 5 of the '428 patent. In particular, the accused device does not penetrate the imaginary plane at any point, and therefore does not literally infringe the asserted claims of the '428 patent. Deering admits this by arguing that the placement of the weight 0.10 inches away from the plane amounts to literal infringement. In short, because no portion of the weight of the VX-10 is “substantially in” the plane under either the district court’s or our narrower construction, the VX-10 cannot literally infringe the claims of the '428 patent. With respect to the doctrine of equivalents, the district court relied on this court’s holding in Festo I to determine that Deering was estopped from asserting infringement under the doctrine of equivalents. Festo I was vacated by the Supreme Court in Festo II. Accordingly, we vacate the district court’s finding of no infringement under the doctrine of equivalents based on Festo I and address whether prosecution history estoppel, as discussed in the Supreme Court’s decision in Festo II, and this court’s opinion on remand, Festo Corp. v. Shoketsu Kinzoku Kogyo Kabushiki Co., 344 F.3d 1359 (Fed.Cir.2003) (en banc) (“Festo III ”), is applicable to the claims at issue. The parties dispute whether prosecution history estoppel applies to Deering’s allegations of infringement under the doctrine of equivalents. There are two distinct theories that fall under the penumbra of prosecution history estoppel— amendment-based estoppel and argument-based estoppel. Elkay Mfg. Co. v. Ebco Mfg. Co., 192 F.3d 973, 979 (Fed.Cir.1999) (holding that the scope of coverage of the claims may change if a patentee has “relinquished [a] potential claim construction in" }, { "docid": "15067904", "title": "", "text": "because, as discussed above, the term “substantially” is a term of magnitude requiring a “not insubstantial” portion of the weight to intersect the plane containing the fulcrum. Epcon, 279 F.3d at 1081. Because this construction is actually narrower than the district court’s construction, it does not affect the district court’s ultimate finding of noninfringement with respect to the VX-10. Accordingly, in light of the ordinary meaning of the term “substantially” and in view of the written description, we construe the Zero Position Limitation as requiring a not insubstantial portion of the weight to intersect the plane containing the fulcrum. On appeal, Deering argues that the term “substantially in” means “at or near the imaginary plane.” Deering argues that any other interpretation reads the term “substantially,” one of approximation, out of the claim. As discussed above, the term “substantially” in this context is used as a term of magnitude, describing the extent of the portion of the weight in the plane defined by the fulcrum, not as a term of approximation. B. Infringement The second step of the infringement analysis requires comparison of the accused device to the properly construed claims. Cybor, 138 F.3d at 1454. To prove infringement, the patentee must show that the accused device meets each claim limitation, either literally or under the doctrine of equivalents. Seal-Flex, Inc. v. Athletic Track & Court Constr., 172 F.3d 836, 842 (Fed.Cir.1999). With respect to literal infringement, it is clear that the VX-10 does not literally meet each limitation of any of the asserted claims 1, 2, 4, and 5 of the '428 patent. In particular, the accused device does not penetrate the imaginary plane at any point, and therefore does not literally infringe the asserted claims of the '428 patent. Deering admits this by arguing that the placement of the weight 0.10 inches away from the plane amounts to literal infringement. In short, because no portion of the weight of the VX-10 is “substantially in” the plane under either the district court’s or our narrower construction, the VX-10 cannot literally infringe the claims of the '428 patent. With respect to" }, { "docid": "22847259", "title": "", "text": "of a terminal site before location of a terminal at that site. Catalina’s argument that “predesignated sites” refers to the recognition of a terminal by a host computer at some point before coupon selection ignores the physical dimension indicated by the phrase “located at” immediately preceding “predesignated sites.” Recognition simply does not amount to predesignation. Thus, a coupon dispensing entity must designate a location for a terminal before placing it at that site. This claim language limits the scope of the claims. The district court correctly found that the term “such as” means “of a kind or character about to be indicated, suggested, or exemplified; for instance.” Despite correctly characterizing “such as” as exemplary language, the district court erroneously equated “point of sale” with “consumer store.” “Such as” introduces an example of a broader genus rather than limiting the genus to the exemplary species. Moreover, the specification of the '041 patent uses the phrase “such as consumer stores” as an example of a possible point of sale location. See, e.g., '041 patent, col. 1,1. 67 — col. 2,1. 4, col. 2,11. 32-38, and col. 4, 11. 65-67. As discussed above, the applicants stated during prosecution that their invention involved terminals “located in stores” for the dispensing of coupons “on-site.” This descriptive language during the acquisition of the patent does not make the store location more than an example of a point of sale location. This court thus' holds that the phrase “located at predesignated sites such as consumer stores” requires designation of the physical site of the terminal before location of the terminal at a point of sale location. III. After claim construction, the fact finder compares the properly construed claims to the accused device or process. Cybor Corp., 138 F.3d at 1454. To prove infringement, the patentee must show that the accused device meets each claim limitation either literally or under the doctrine of equivalents. Seal Flex, Inc. v. Athletic Track and Court Const., 172 F.3d 836, 842, 50 USPQ2d 1225, 1228 (Fed.Cir.1999). Literal infringement requires the patentee to prove that the accused device contains each limitation of the" }, { "docid": "14575236", "title": "", "text": "Summary judgment of no literal infringement is proper, therefore, when no reasonable jury could find that every limitation recited in a properly construed claim is found in an accused device. See Bai v. L & L Wings, Inc., 160 F.3d 1350, 1353-54, 48 USPQ2d 1674, 1676 (Fed.Cir.1998) (citing Cole v. Kimberly-Clark Corp., 102 F.3d 524, 532, 41 USPQ2d 1001, 1007 (Fed.Cir.1996)). As discussed, claim 2 excludes from its literal scope the possibility that a crate’s bottom side merges with both the bottom and top edge of the central portion of the front wall. Yet Spectrum unequivocally asserts that this is precisely the configuration found in Sterilite’s accused product. Accordingly, no reasonable jury could find that Sterilite’s accused crate meets all the limitations in claim 2, and thus Sterilite’s crate cannot literally infringe claim 2 as a matter of law. Spectrum next argues that even if not literally infringed, Sterilite’s accused crate nevertheless infringes claim 2 under the doctrine of equivalents. Spectrum also argues that Sterilite’s accused crate infringes claim 11 under the doctrine of equivalents. While it is true that a product can infringe an asserted claim under the doctrine of equivalents if each element in the claim, even if not literally present, is met by a substantial equivalent, see Warner-Jenkinson Co. v. Hilton Davis Chem. Co., 520 U.S. 17, 117 S.Ct. 1040, 1049, 1053, 137 L.Ed.2d 146, 41 USPQ2d 1865, 1871, 1875 (1997), the countervailing doctrine of prosecution history estop-pel “bar[s] recapture by the patentee of scope that was surrendered in order to obtain allowance of the claims.” Pall Corp. v. Micron Separations Inc., 66 F.3d 1211, 1218, 36 USPQ2d 1225, 1230 (Fed.Cir.1995); see also Wang Lab., Inc. v. Mitsubishi Elecs. Am., Inc., 103 F.3d 1571, 1577, 41 USPQ2d 1263, 1269 (Fed.Cir.1997). Whether prosecution history estoppel applies is a matter of law. Id. If we determine, upon reviewing the relevant prosecution history, that estoppel applies, doctrine of equivalents infringement is precluded as a matter of law, and summary judgment of noninfringement is appropriate. Id. Here, as already discussed, Spectrum clearly relinquished from the scope of both claims 2 and" }, { "docid": "22856326", "title": "", "text": "“said selected number.” This reference to “number” in the singular sense bolsters the interpretation that “selecting one of said ... numbers” is limited to selecting a single number. Nothing in the written description, drawings, or prosecution history indicates that the phrases “one of said ... numbers” or “said selected number” should be given anything other than their ordinary meaning. See York Prods., Inc. v. Central Tractor Farm & Family Ctr., 99 F.3d 1568, 1572, 40 USPQ2d 1619, 1622 (Fed.Cir.1996) (“Without an express intent to impart a novel meaning to claim terms, an inventor’s claim terms take on their ordinary meaning.”). Therefore, the term “number(s),” as used in claim 1, refers to single numbers, as opposed to combinations of numbers, and the recited function of claim 1 is limited to assigning and selecting single numbers. Literal Infringement of Claim 1 Having considered claim construction, we turn to the issue of infringement of claim 1. We address literal infringement first. “To prove literal infringement, the patentee must show that the accused device contains every limitation in the asserted claims. If even one limitation is missing or not met as claimed, there is no literal infringement.” Mas-Hamilton Group v. LaGard, Inc., 156 F.3d 1206, 1211, 48 USPQ2d 1010, 1014-15 (Fed.Cir.1998) (citations omitted). As noted above, in order to establish literal infringement of a means-plus-function claim, the patentee must establish that the accused device employs structure identical or equivalent to the structure disclosed in the patent and that the accused device performs the identical function specified in the claim. See Valmont Indus., 983 F.2d at 1042, 25 USPQ2d at 1454; Pennwalt, 833 F.2d at 934, 4 USPQ2d at 1739. It is undisputed that the first three limitations of claim 1 are met in the accused device, the WMS 400 slot machine. The issue, then, is whether IGT carried its burden of establishing that, as properly construed, the last three limitations of claim 1 read on the WMS 400 slot machine. As a preliminary matter, the WMS 400 slot machine does not contain structure identical to that disclosed in the Telnaes patent for the last" } ]

[ { "docid": "6261201", "title": "", "text": "of the trial court that the Uhlig claims were valid locations, attention was called to the fact that those claims were located on January 1, 1889, while the Yes You Do was located more than eight years thereafter, viz., on January 1, 1898. A mining claim was declared to be a possessory right and real estate under the statutes of Utah, and it was held that one Mayberry, the locator of the Levi P. claim, not having instituted a suit to recover possession of the premises in dispute within seven years after the location of the Uhlig claims, was barred of all right to such premises by the terms of section 2859 of the Revised Statutes of Utah, and that his right to contest the title of the defendants to the conflict areas “was also waived by his failure to adverse the application for a patent of the Uhlig Nos. 1 and 2.” The court added: “In view of these facts the plaintiff, even if J. Fewson Smith, Jr., had not been a deputy United States mineral surveyor, as the location of the Yes You Do was not made until eight years after the possession of the Uhlig Nos. 1 and 2 was begun, could not avail himself of any rights which the said Mayberry may have had.” This latter ruling of the Supreme Court of Utah forms the basis for the first of two grounds of a motion to dismiss this writ of error, which motion will now be passed upon. ' The first is, in substance, that, assuming that there was a Federal question determined by the Supreme Court of Utah, its decision was not necessary, and whether it was or not jurisdiction does not exist, because there was another ground upon which the decree of the trial court was affirmed, non-Federal in its nature, and broad enough to maintain the judgment, viz., the ruling of the bar of the statute of limitations. The second ground is thus stated: “That under the decision of the Supreme Court of the State of Utah, this court has ho jurisdiction to" } ]

[ { "docid": "22120004", "title": "", "text": "in one of these actions, 61.06 miles of whose road .is in Fresno County. The company complied with the several acts of Congress, and there is in operation a continuous line of railway from the Missouri River to the Pacific Ocean, the Central Pacific Railroad Company owning and operating the portion thereof between Ogden, in the Territory of Utah, and San Francisco. When the present action was instituted against this company the United States had and now have a lien, created by the acts of Congress of 1862 and 1864, for $30,000,000, with a large amount of interest, upon its road, rolling-stock, fixtures and franchises; and there were also outstanding bonds for a like amount issued by the company prior to January 1, 1875, and secured by a mortgage upon, the same property. Such were the relations which these two. .companies held to the United States and to the State when the assessments in question were made for purposes of taxation. It is necessary now to refer to those provisions of the constitution and laws of the State which, it is claimed, sustain these assessments. The constitution of California, adopted in 1879, exempts from taxation growing crops, property used exclusively for public schools, and such as may belong to-the United States, or to that State, or to any of her county or municipal corporations, and declares that the legislature “ may provide, except in the case of credits secured by mortgage or trust deed, for a reduction from credits of debts due to bona fide residents ” of the State. It is provided in the first section of Article XIII. that, with these exceptions — “ all property in the State, not exempt under the laws of the United States, shall be taxed in proportion to its value, to be ascertained as provided by law. The word ‘property,’ as used in this article and section, is hereby declared to include moneys, credits, bonds, stocks, dues, franchises, and all other matters and things, real, personal and mixed, capable of private ownership.” The fourth section of the same article provides: “ A" }, { "docid": "16067807", "title": "", "text": "from these claims. There is no evidence that Webb was a locator, co-owner or owner of any of the claims, or that she had any other business relationship to the claims which would result in her receipt of income or other benefits from the claims. We are not persuaded that Webb had an indirect interest under the statute. The IBLA’s conclusion that Webb had an indirect interest is based solely on the regulation defining “indirect interest” as “substantial holdings of a spouse”, 43 C.F.R. 20.735-24(a)(4)(ii). 92 Interior Dec. at 86. The government contends the financial interdependence of spouses under state law amply supports the agency’s determination that an employee is indirectly interested in the property of her spouse. Appellant’s Brief at 24. This contention is based on Utah statutes which provide: spouses are jointly liable for family expenses (Utah Code Ann. § 30-2-9); each spouse has the duty to support the other in time of need (Utah Code Ann. §§ 78-45-3 and 78-45-4); upon divorce marital property is distributed as reasonable and necessary (Utah Code Ann. § 30-3-5); and upon death the surviving spouse has an elective share of the estate (Utah Code Ann. § 75-2-201). Appellant’s Brief at 25. We do not agree that these state statutes give the spouse an indirect interest in an unpatented mining claim. The locator of an unpatented mining claim, properly located, has a vested property interest. Cole v. Ralph, 252 U.S. 286, 295, 40 S.Ct. 321, 325, 64 L.Ed. 567 (1920); Shell Oil Co. v. Andrus, 591 F.2d 597, 603 (10th Cir.1979), aff'd, 446 U.S. 657, 100 S.Ct. 1932, 64 L.Ed.2d 593 (1980). The Supreme Court rejected the argument that a Montana statute, which gave a widow an elective share in her husband’s estate under dower, gave the widow a right of dower in an unpatented mining claim that her husband had owned during their marriage. Black v. Elkhorn Mining Co., 163 U.S. 445, 16 S.Ct. 1101, 41 L.Ed. 221 (1896). In coming to this conclusion the Court recognized that the states treat a locator’s possessory interest in an unpatented mining claim as" }, { "docid": "7815513", "title": "", "text": "the plaintiff, his ancestor, predecessor, or grantor, was seized or possessed of the property in question, within five years before the commencement of the action.” . A third person also had an interest in the Kasey mining claims and sold his interest to appellee under the same option agreement, hut he is not involved in this appeal . 30 U.S.C. § 42. . E.g., 30 U.S.C. §§ 524, 525; cf. generally, 33 Cal.Jur.2cl, Mines and Minerals, §§ 112-13. . Some state statutes do. E.g.: Idaho Code § 5-203, Nevada Revised Statutes- §§ 11.060 and 11.080. . This same definition exists in California-Civil Code § 14 and California Penal Code § 7. . As enacted in 1873-74. As enacted in 1872, it read: “[t]iie term land,’ and the phrases ‘real estate’ and ‘real property,’ include lands, tenements, and heredita-ments, and all rights thereto, and interests therein.” West’s Ann.Califomia Code of Civil Procedure § 17 note. We see no significance in the changed wording. . Cf. also: Spencer v. Winselman, 1871, 42 Cal. 479; Tyee Consol. Min. Co. v. Langstedt, 9 Cir. 1905, 136 F. 124; Lavagnino v. Uhlig, 26 Utah. 1, 71 P. 1046 (1903), affirmed 198 U.S. 443, 25 S.Ct. 716, 49 L.Ed. 1119, and authorities cited at 71 P. at 1051. . E.g., Watterson v. Cruse, 1918, 179 Cal. 379, 382, 176 P. 870, 872; Buchner v. Malloy, 1909, 155 Cal. 253, 100 P. 687; Dalton v. Clark, 1933, 129 Cal.App. 136, 140, 18 P.2d 752. . Belk v. Meagher, 1881, 104 U.S. 279, 283-84, 26 L.Ed. 735; Benson Mining & Smelting Co. v. Alta Mining & Smelting Co., 1892, 145 U.S. 428, 430, 12 S.Ct. 877, 36 L.Ed. 762; La Laguna Ranch Co. v. Dodge, 1941, 18 Cal.2d 132, 114 P.2d 351, 135 A.L.R. 546; Fulkerson v. Chisna Min. & Imp. Co., 9 Cir., 1903, 122 F. 782; Wetsel v. Superior Court, 1953, 119 Cal.App.2d 703, 708, 260 P.2d 242; South End Min. Co. v. Tinney, 1894, 22 Nev. 221, 38 P. 401, 402. Compare, Dougherty v. California Kettleman Oil Royalties, Inc., 1937, 9 Cal.2d 58, 76-77, 69" }, { "docid": "19156190", "title": "", "text": "and that is enough to sustain taxation. The revenue act of the Territory (Rev. Stats. Arizona, § 2630) provides “ that- all property of every kind and nature whatsoever within this Territory .shall be subject to taxation,” and § 2631 defines the term “ real estate,” as used in the act, “ to mean and include the ownership of, or claim to, or possession of or right of possession to any land within the Territory.” It has been held that possessory rights founded upon mere occupation and improvements upon government land, though invalid as against the government, may be made the subject of barter and sale, and may be treated under the laws of the State and Territory as having all the attributes of property. Lamb v. Davenport, 18 Wall. 307; Bishop of Nesqually v. Gibbon, 158 U. S. 155, 168. In Central Pacific Railroad, v. Nevada, 162 U. S. 512, it was decided that the possessory claim of the railroad company to lands within the State of Nevada was subject to taxation, notwithstanding the fact that the lands might thereafter be determined to be mineral lands, and so excluded from the operation of the railroad grant. See also Northern Pacific Railroad Company v. Patterson, 154 U. S. 130, 132. Within the reasoning of these decisions, as it does not appear that these lands were not held by perfect grants under the laws of Mexico, or that they were' not in the possession of the appellants, and covered with valuable improvements, it must be held that the objection to their taxation cannot be sustained. Another objection is that a levy of fifty cents on the hundred dollars included in these taxes was made solely for the purpose of raising money to pay interest on bonds, and it is insisted that the bonds for which the levy was made were void under the act of July 30, 1886, c. 818, 24 Stat. 170, which prohibits a county from becoming indebted to an amount exceeding four per cent of the value of the taxable property within the county. The bonds, which were" }, { "docid": "22868355", "title": "", "text": "settlement, illustrates the principle and its limitation. The property of the United States is not subject to state taxation (Van Brocklin v. Tennessee, 117 U. S. 151), but the property of individual owners, although derived from the United States under its public land laws, may be taxed. The power to tax exists as soon as the ownership is changed. Witherspoon v. Duncan, 4 Wall. 210, 219. Though the legal title remains in the Government, if the proceedings have reached the point where nothing more remains to be done by the entryman and the Government no longer has any beneficial interest in the land and does not exclude the entryman from the use of it, he is regarded as the beneficial owner and the land as subject to taxation. Bothwell v. Bingham County, 237 U. S. 642, 647. Again, the possessory right of a qualified locator after discovery of minerals is a property right in the full sense, unaffected by the fact that the paramount title to the land is in the United States, and such interest from early times has been held to be vendible, inheritable, and taxable. Forbes v. Gracey, 94 U. S. 762, 766, 767; Elder v. Wood, 208 U. S. 226, 232; Union Oil Co. v. Smith, 249 U. S. 337, 349; Irwin v. Wright, 258 U. S. 219, 231. It is thus apparent that the mere fact that a property right is created by statute to fulfil a governmental purpose does not make it nontaxable when it is held in private ownership and exercised for private advantage. See Susquehanna Power Co. v. State Tax Commission (No. 1), 283 U. S. 291, 297. We are of the opinion that no controlling distinction can be based, in the case of copyrights, upon the character of the right granted. The argument that it .is in the nature of a franchise or privilege bestowed by the Government, is met by the fact that it is not a franchise or privilege to be exercised on behalf of the Government or in performing a function of the Government. The ‘ mining claim’" }, { "docid": "17271849", "title": "", "text": "and from then until August, 1914, approximately 900,000 tons of tailings were accumulated upon desert land owned by plaintiff, non-mineral in character, and located about three miles from its mining claims. At the time of the accumulation of these tailings there was no known process by which the small percentage of metals which they contained could be profitably recovered. In August, 1914, plaintiff stopped work on its mining claims and has never since resumed. The court below expressly found that at the date last mentioned all ores which could be profitably mined under processes then or since known had been taken out, and that plaintiff’s mine, excluding the tailings, had nfever since been of any value; that plaintiff had never abandoned its property but had maintained its title and paid and discharged all taxes assessed against it; and that, on January 1, 1919, the said tailings deposit was of the value of $20,000. In January, 1914, plaintiff made an agreement with the Utah Leasing Company for the treatment and reduction of this deposit upon a royalty of ten per cent. The leasing company took possession of the tailings, constructed reduction works, using in connection therewith some of the plaintiff’s improvements on its mining property, and, as a result of its operations, recovered from the tailings in the year 1918 the net amount of $120,547, ten per cent, only of which was paid over tp the plaintiff, under the terms of the agreement. The taxing authorities, claiming to act under the state constitution and laws, multiplied the amount thus recovered by three and fixed the value of plaintiff’s mining property for the year 1919 for taxing purposes at the multiple thereof, viz., $361,641. The defendant thereupon assessed and collected from plaintiff $6,907.34 as a tax against plaintiff’s mining property for the year 1919, based upon a valuation computed in the manner just stated. The Constitution of Utah declares (§§ 2 and 3, Article XIII) that all property in the State shall be taxed in proportion to its value, and requires the legislature to provide a uniform and equal rate of assessment" }, { "docid": "22907168", "title": "", "text": "except when, coupled with ownership of the land or improvements in the same person.” Title 18 Cal. Adm. Code § 21 (b) (1971) provides: “ ‘Taxable possessory interest’ means a possessory interest in nontaxable publicly owned real property, as such property is defined in section 104 of the Revenue and Taxation Code . . . .” Section 104, Cal. Rev. & Tax. Code (West 1970), provides: “ ‘Real estate’ or ‘real property’ includes: “(a) The possession of, claim to, ownership of, or right to the possession of land.” All parties agree that the national forests owned by the Federal Government are tax-exempt land by reason of the Supremacy Clause of the United States Constitution, e. g., United States v. Allegheny County, 322 U. S. 174 (1944), and that no tax may be imposed either on the land itself or on the United States. With respect to non-tax-exempt land, California imposes a property tax on the owner. No tax is imposed directly on a renter of non-tax- exempt land. However, the tax on the owner is presumably reflected in the rent and the renter may thus pay the tax indirectly. In computing the value of appellants’ possessory interests on which the tax was imposed, Fresno County used the value of one year of occupancy. Tuolumne County used the present discounted value of five years’ occupancy — the length of time which it estimated the average Forest Service employee remained in a Forest Service house. The tax was in the form of a forced purchase from a state official of stamped paper on which such notes were required to be printed. The tax could be avoided by an annual lump-sum payment to the state official of $15,000. The Court stated: '‘[Normally in] imposing a tax the legislature acts upon its constituents. This is in general a sufficient security against erroneous and oppressive taxation. “The people of a State, therefore, give to their government a right of taxing themselves and their property, . . . resting confidently on the interest of the legislator, and on the influence of the constituents over their representative," }, { "docid": "17271851", "title": "", "text": "and taxation of all property according to its value in money, and prescribe such regulations as shall secure a just valuation for the taxation of all property, so that every person and corporation shall pay a tax in proportion to such value. By an amendment to § 4, Article XIII, adopted in 1918, it is provided that all metaliferous mines or mining claims, in addition to an arbitrary valuation of $5 per acre, shall be assessed “ at a value based on some multiple or sub-multiple of the net annual proceeds thereof. All other mines or mining claims and other valuable mineral deposits, including lands containing coal or hydrocarbons, shall be assessed at their full value.” The legislature, at its session in 1919, enacted a statute in pursuance of this constitutional provision, providing that metaliferous mines or mining claims shall be assessed, in addition to the $5 per acre, upon a value to be determined by taking the multiple of three times the net annual proceeds thereof. Other mines and valuable mineral deposits are to be assessed at their full value. The words “ net annual proceeds ” are defined to be the net proceeds realized during the preceding calendar year from the sale, or conversion into money or its equivalent, of all ores extracted by the owner, lessee, contractor or other person working upon or operating the property during or previous to the year for which the assessment is made, including all dumps and tailings, after making certain deductions. \"Séssion Laws, 1919, c. 114, § 5864. Upon the facts stated and under these constitutional and statutory provisions, the lower court upheld the validity of the tax. The plaintiff contended in the court below that the tailings deposit was neither a mine nor a part of a mine, but a thing separate and apart from its mining claims, constituting a “ valuable mineral deposit ” and taxable as such upon the value and not a multiple thereof; that the agreement with the leasing company was a sale of the deposit, which thereupon ceased to be assessable as its property, or" }, { "docid": "2695720", "title": "", "text": "must consider these issues to be premature and do not consider them. The state taxation of the same activities must be examined. We have already noted that taxation by two entities is not necessarily unconstitutional. The plaintiffs ask us to decide, however, a different question which is not in any way bound to the validity of the Navajo tax. We are asked to decide the validity of a state severance tax on oil produced from Navajo lands. This state tax is challenged on the theory that 25 U.S.C. § 398c which permits such a tax has been repealed by the Indian Mineral Leasing Act of 1938, 25 U.S.C. §§ 396a-396g. This question is outside the jurisdiction of the federal courts as it concerns the validity of the state tax. 28 U.S.C. § 1341 states: “The district courts shall not enjoin, suspend or restrain the assessment, levy or collection of any tax under State law where a plain, speedy and efficient remedy may be had in the courts of such State.” Several recent Supreme Court cases have reaffirmed the limiting power of this statute. California v. Grace Brethren Church, 457 U.S. 393, 102 S.Ct. 2498, 73 L.Ed.2d 93; Fair Assessment in Real Estate Assn. v. McNary, 454 U.S. 100, 102 S.Ct. 177, 70 L.Ed.2d 271; Rosewell v. LaSalle National Bank, 450 U.S. 503, 101 S.Ct. 1221, 67 L.Ed.2d 464. In Grace Brethren Church, section 1341 operated to bar jurisdiction even where, as here, the interpretation of a federal statute was at issue. The plaintiffs argue that there is no “plain, speedy and efficient” remedy at state law. They contend that with respect to some of the state taxes at issue that the remedies are administrative, and Utah law precludes the examination of constitutional issues in an administrative forum. It is true that the first step in a state challenge of some of the taxes at issue is before the State Tax Commission. See Utah Code Ann. §§ 59-24 — 1 through 9 (Tax Court Act). This is only the first step and under Utah law this proceeding is for the purpose" }, { "docid": "8745592", "title": "", "text": "any civil action is commenced in the district court involving fewer than 10 water claimants or less than the major part of the rights to the use of water from any river system, lake, underground water basin, or other source, the court in its discretion, may, if a general determination of the rights to the use of water from said water source has not already been made, proceed, as in this chapter provided, to make such a general determination. In any such action for the determination of water rights the state of Utah shall be joined as a necessary party.” The procedure in statutory suits for the determination of water rights in Utah, whether initiated under one or the other of the foregoing sections, is set out in Section 73-4-3 et seq., Utah Code Annotated 1953. The nature of the proceedings is suggested in the form of summons quoted at the beginning of this opinion, and I shall not attempt here to further detail them. It should be noted that in such a. general determination suit the rights to the use of water may be determined not only as between and among the claimants and users on one side and the State of Utah on the other, but also as between and among all the claimants and users thereof. Huntsville Irr. Ass’n v. District Court of Weber County, 72 Utah 431, 270 P. 1090. Under the modern Utah law of partition, the rights of each party, plaintiff as well as defendant, may be determined, including the rights of unknown parties when jurisdiction in rem has been acquired by publication of summons, 78-39-8, Utah Code Annotated 1953; while partition must involve real property, water rights in Utah are treated as, and are deemed to be, real estate. Hammond v. Johnson, 94 Utah 20, 66 P.2d 894; 73-1-10, Ibid. In spite of these modern similarities, and not unmindful of the contrary decision in North Side Canal Co., Limited v. Twin Falls Canal Co., D.C.Idaho S.D.1926, 12 F.2d 311, I am of the opinion that suits for the general determination of water rights" }, { "docid": "22241759", "title": "", "text": "Graves v. Elliott and Graves v. Schmidlapp, we repeat that there is no constitutional rule of immunity from taxation of intangibles by more than one State. In case of shares of stock, “jurisdiction to tax” is not restricted to the domiciliary State. Another State which has extended benefits or protection, or which can demonstrate “the practical fact of its power” or sovereignty as respects the shares (Blackstone v. Miller, p. 205), may likewise constitutionally make its exaction. In other words, we restore these intangibles to the constitutional status which they occupied up to a few years ago. See Greves v. Shaw, 173 Mass. 205, 53 N. E. 372; Larson v. MacMiller, 56 Utah 84, 189 P. 579, and cases collected in 42 A. L. R. pp. 365 et seq. We reverse the judgment below and remand the cause to the Supreme Court of Utah for proceedings not inconsistent with this opinion. Reversed. N. Y. L. 1930, c. 710, § 1, amended L. 1934, c. 639, § 1; McKinney’s Cons. L., Bk. 59, Tax Law, § 249-0. This section was repealed by L. 1940, c. 138. For the present provision, see McKinney, op. cit., Cum. Ann. Pt. (1941) § 249-o. Rev. Stat. Utah, 1933, § 80-12-2 provides: “A tax equal to the sum of the following percentages of the market value of the net estate shall be imposed upon the transfer of the net estate of every decedent, whether a resident or nonresident of this state: “Three per cent of the amount by which the net estate exceeds $10,000 and does not exceed $25,000; “Five per cent of the amount by which the net estate exceeds $25,000.” , \" ' Sec. 80-12-3 provides: “The value of the gross estate of a decedent shall be determined by including the value at the time of his death of all property, real or personal, within the jurisdiction of this state, and any interest therein, whether tangible or intangible, which shall pass to any person, in trust or otherwise, by testamentary disposition or by law of inheritance or succession of this or any other state" }, { "docid": "22120005", "title": "", "text": "of the State which, it is claimed, sustain these assessments. The constitution of California, adopted in 1879, exempts from taxation growing crops, property used exclusively for public schools, and such as may belong to-the United States, or to that State, or to any of her county or municipal corporations, and declares that the legislature “ may provide, except in the case of credits secured by mortgage or trust deed, for a reduction from credits of debts due to bona fide residents ” of the State. It is provided in the first section of Article XIII. that, with these exceptions — “ all property in the State, not exempt under the laws of the United States, shall be taxed in proportion to its value, to be ascertained as provided by law. The word ‘property,’ as used in this article and section, is hereby declared to include moneys, credits, bonds, stocks, dues, franchises, and all other matters and things, real, personal and mixed, capable of private ownership.” The fourth section of the same article provides: “ A mortgage, deed of trust, contract, or other obligation by which a debt is secured, shall, for the purposes of assessment and taxation, be deemed and treated as an interest in the property affected thereby. Except as to railroad a/nd other quasipullic corporations, in case of debts so secured, the value of the property affected by such mortgage, deed of trust, contract, or obligation, less the value of such security, shall be assessed and taxed to the owner of the property, and the value of such security shall be assessed and taxed to the owner thereof, in the county, city, or district in which the property affected thereby is situate. The taxes so levied shall be a lien upon the property and security, and may be paid by either party to such security ; if paid by the owner of the security, the tax so levied upon the property affected thereby shall become a part of the debt so secured ; if the owner of the property shall pay the tax so levied on such security," }, { "docid": "8837449", "title": "", "text": "pay for it. It would follow that military commanders would receive requests for transfers away from taxing states to non-taxing states. There would be the negative effect on morale that accompanies disproportionate pay for similar rank. Those currently stationed in non-taxing states, if transferred to a taxing state, might choose discharge or retirement from the service. The above considerations persuade us' that the tax in this case is one that is imposed upon federal functions and properties, and therefore that it cannot be sustained. The judgments below are affirmed. . California Constitution, art. 13, § 1 provides in part that “[ujnless otherwise provided by this Constitution or the laws of the United States: “(a) All property is taxable * * *. “(b) All property * * * shall be taxed in proportion to its full value.” Section 107.1 of the California Revenue & Taxation Code provides in part: “The full cash value of [a] possessory interest, when arising out of a lease of exempt property, is the excess, if any, of the value of the lease on the open market, as determined by the formula contained in the case of De Luz Homes, Inc. v. County of San Diego (1955), 45 Cal.2d 546, 290 P.2d 544, over the present worth of the rentals under said lease for the unexpired term thereof. “A possessory interest taxable under the provisions of this section shall be assessed to the lessee on the same basis or percentage of valuation employed as to other tangible property on the same roll. “This section applies only to possessory interests created prior to the date on which the decision of the California Supreme Court in De Luz Homes, Inc. v. County of San Diego (1955), 45 Cal.2d 546, 290 P.2d 544 became final. It does not, however, apply to any of such interests created prior to that date that thereafter have been, or may hereafter be, extended or renewed, irrespective of whether the renewal or extension is provided for in the instrument creating the interest.” Section 107 defines “possessory interests” as: “(a) Possession of, claim to, or right" }, { "docid": "13906193", "title": "", "text": "of the transferee. Id. § 547(e)(1)(A). Under this provision the date a transfer is perfected turns on state law, see 4 L. King, Collier on Bankruptcy II 547.46[1] (15th ed. 1985) — in this case, the law of the state of Utah. Under Utah law, a valid written agreement to transfer an interest in real property is immediately binding on the parties to the agreement and on others having actual notice of the transaction; but until it is recorded, such an agreement does not affect the rights of third parties without notice. See Utah Code Ann. § 57-1-6 (1953). Relying on two ancient Utah cases, Neponset Land & Livestock Co. v. Dixon, 10 Utah 334, 37 P. 573 (1894); and Toland v. Corey, 6 Utah 392, 24 P. 190 (1890), aff'd without opinion, 154 U.S. 499, 14 S.Ct. 1144, 38 L.Ed. 1062 (1894), the appellants respond that they perfected their interest by taking possession of the property at the time of the original transaction. The citations to Toland and Neponset are misplaced. At most, these cases stand for the principle that occupancy serves as actual notice of ownership. Nothing in the record of the present case, however, indicates that the appellants occupied, operated, or took possession of the apartments. The appellants declined to present such evidence at trial, and the only pieces of evidence to support their claim of possession to which they point are tax returns showing that they derived income from the property. While the returns indicate who enjoyed the fruits of the property, they do little to settle the question of who retained possession and exercised control. Certainly, the returns themselves, being confidential documents, did not serve to put third parties on notice as to the appellants’ property rights. In the face of the trustee’s unrefuted testimony that Frontier operated the apartments, the appellants have failed to show that they exercised the sort of possessory rights that would constitute actual notice of ownership, and thus perfect the transfer, under Utah law. We therefore conclude that the transfer of the apartments took place when the warranty deed was" }, { "docid": "22907191", "title": "", "text": "at 464. But an attempt to reimburse all federal employees for taxes legally owed would entail a great deal more than the economic burden represented by the value of the taxes. Appellees Fresno and Tuolumne Counties have different methods of computing the value of the possessory' interest, ante, at 456 n. 4. Once these counties determine the assessed vahiation of the possessory interests, presumably they apply different tax rates to determine the actual dollar value of each appellant’s tax. The Forest Service owns residences in many coun ties throughout the United States. The administrative burden of determining the correct amount of tax owed on each unique residence operating under myriad payment systems and due dates would be immense. In my judgment, this administrative cost provides another reason why this exercise of a State’s taxing power runs afoul of the Supremacy Clause. Moreover, I do not believe the State’s power can be exercised in a manner which requires the Federal Government to surrender its own tax exemption in order to protect its employees from a discriminatory tax. I do not understand the relevance of the Federal Government’s so-called advantage in the employment market. Title 18 Cal. Adm. Code § 21 (b) (1971), quoted ante, at 455 n. 3. See Cedars of Lebanon Hospital v. County of Los Angeles, 35 Cal. 2d 729, 221 P. 2d 31 (1950) (private hospital); Church Divinity School v. County of Alameda, 152 Cal. App. 2d 496, 314 P. 2d 209 (1957) (college-level private school); Serra Retreat v. County of Los Angeles, 35 Cal. 2d 755, 221 P. 2d 59 (1950), and Saint Germain Foundation v. County of Siskiyou, 212 Cal. App. 2d 911, 28 Cal. Rptr. 393 (1963) (religious organizations). “The United States asks this Court to strike down as unconstitutional a tax statute of the State of Michigan as applied to a lessee of government property. In general terms this statute, Public Act 189 of 1953, provides that when tax-exempt real property is used by a private party in a business conducted for profit the private party is subject to taxation to the same extent" }, { "docid": "8081069", "title": "", "text": "curiae press upon us the economic plight of the Indians and persuasively attack the concept that a tax upon the use of a thing is not a tax upon the thing itself, but as we see it these arguments are foreclosed by the decisions cited. The judgment appealed from is affirmed. . See 26 Stat. 712, January 12, 1891, 73 Stat. 602, 25 U.S.C. Sections 951-960 (1959). . “ ‘Possessory interest’ means the following: (a) Possession of, claim to, or right to the possession of land or improvements, except when coupled with ownership of the land or improvements in the same person. (b) Taxable improvements on tax-exempt land. Except as provided in this section, possessory interests shall not be considered as sufficient security for the payment of any taxes. Leasehold estates for the production of gas, petroleum, and other hydrocarbon substances from beneath the surface of the earth, and other rights relating to such substances which constitute incorporeal heredita-ments or profits a prendre, are sufficient security for the payment of taxes levied thereon. Such estates and rights shall not be classified as possessory interests, but shall be placed on the secured roll. In the event of delinquency in the payment of any installment of taxes on such leasehold estates or rights, they shall be subject to seizure and sale in the same manner as provided for the seizure and sale of possessory interests in Sections 2914 and 2919, inclusive, at any time within three years after the delinquency. Suit may be brought against an assessee of such taxes in the event of delinquency in the payment thereof.” California Revenue and Taxation Code, Section 107. . See footnote 1, supra. . Department of Employment et al. v. United States et al., 385 U.S. 355, 87 S.Ct. 464, 17 L.Ed.2d 414 (1966), United States v. Livingston, 179 F.Supp. 9 (E.D.S.C.1959), affirmed without opinion 364 U.S. 281, 80 S.Ct. 1611, 4 L.Ed. 2d 1719 (1960). It is to be noted that in one of these cases a public corporation was a co-plaintiff with the United States, and that in the other a private" }, { "docid": "14529452", "title": "", "text": "of the United States, should grant relief, even though complainants be entitled to it only under the Constitution of their own state. We do not think, however, that the Constitution of South Carolina is infringed. Article 10, § 1, upon which complainants rely, is as follows: “Taxation and Assessment. — The General Assembly shall provide by law for a uniform and equal rate of assessment and taxation, and shall prescribe regulations to secure a just valuation for taxation of all property, real, personal and possessory, except mines and mining claims, the products of which alone shall be taxed; and also excepting such property as may bo exempted by law for municipal, educational, literary, scientific, religious or charitable purposes: Provided, however, that the General Assembly may impose a capitation tax upon such domestic animals as from their nature and habits are r destructive of other porperty: And provid- ' ed, further, that the General Assembly may provide for a graduated tax on incomes, and for a graduated license on occupations and business.” It will be noted that the section relied on expressly authorizes graduated license taxes on occupations and business, and, if the tax in question be considered an occupation or business tax, graduation in accordance with sales would seem to be expressly authorized. If it be considered a tax on sales, there is nothing in the section of the Constitution to invalidate any of its provisions, as it is undoubtedly made at a uniform and equal rate, levying the same tax on all articles of merchandise of the same sort sold within the state. The idea that the rule of uniformity is violated because only one tax is imposed on each article and only one stamp is required to be placed on it, even though it may have been sold a number of times, is not well grounded. It is a matter of common knowledge that a tax of this sort is shifted from dealer to dealer and is ultimately paid by the consumer, and we can think of no better way of securing uniformity in a sales tax than" }, { "docid": "17271850", "title": "", "text": "royalty of ten per cent. The leasing company took possession of the tailings, constructed reduction works, using in connection therewith some of the plaintiff’s improvements on its mining property, and, as a result of its operations, recovered from the tailings in the year 1918 the net amount of $120,547, ten per cent, only of which was paid over tp the plaintiff, under the terms of the agreement. The taxing authorities, claiming to act under the state constitution and laws, multiplied the amount thus recovered by three and fixed the value of plaintiff’s mining property for the year 1919 for taxing purposes at the multiple thereof, viz., $361,641. The defendant thereupon assessed and collected from plaintiff $6,907.34 as a tax against plaintiff’s mining property for the year 1919, based upon a valuation computed in the manner just stated. The Constitution of Utah declares (§§ 2 and 3, Article XIII) that all property in the State shall be taxed in proportion to its value, and requires the legislature to provide a uniform and equal rate of assessment and taxation of all property according to its value in money, and prescribe such regulations as shall secure a just valuation for the taxation of all property, so that every person and corporation shall pay a tax in proportion to such value. By an amendment to § 4, Article XIII, adopted in 1918, it is provided that all metaliferous mines or mining claims, in addition to an arbitrary valuation of $5 per acre, shall be assessed “ at a value based on some multiple or sub-multiple of the net annual proceeds thereof. All other mines or mining claims and other valuable mineral deposits, including lands containing coal or hydrocarbons, shall be assessed at their full value.” The legislature, at its session in 1919, enacted a statute in pursuance of this constitutional provision, providing that metaliferous mines or mining claims shall be assessed, in addition to the $5 per acre, upon a value to be determined by taking the multiple of three times the net annual proceeds thereof. Other mines and valuable mineral deposits are to" }, { "docid": "14529451", "title": "", "text": "prevent fraudulent evasion of the tax. It can no more be considered a deprivation of property without due process than any other exorcise of the taxing power. The contention that the goods are destroyed or greatly reduced in value is, we think, without foundation in fact. If they are repacked after being stamped, they sustain practically no damage, and all that is involved is labor and expense, trifling in comparison with the amount of the tax itself. The claim under the equal protection clause is that advantage is given those purchasing from manufacturers within the state, m that the state manufacturers are required to affix stamps before sale. The point here involved is the same as that involved in the contention that there is a discrimination against the products of other states, and this we have already dealt with. Complainants contend further that the statute violates article 10, § 1, of the Constitution of the state of South Carolina, and that this eourt, having acquired jurisdiction under the allegations as to violation of the Constitution of the United States, should grant relief, even though complainants be entitled to it only under the Constitution of their own state. We do not think, however, that the Constitution of South Carolina is infringed. Article 10, § 1, upon which complainants rely, is as follows: “Taxation and Assessment. — The General Assembly shall provide by law for a uniform and equal rate of assessment and taxation, and shall prescribe regulations to secure a just valuation for taxation of all property, real, personal and possessory, except mines and mining claims, the products of which alone shall be taxed; and also excepting such property as may bo exempted by law for municipal, educational, literary, scientific, religious or charitable purposes: Provided, however, that the General Assembly may impose a capitation tax upon such domestic animals as from their nature and habits are r destructive of other porperty: And provid- ' ed, further, that the General Assembly may provide for a graduated tax on incomes, and for a graduated license on occupations and business.” It will be noted" }, { "docid": "17271852", "title": "", "text": "be assessed at their full value. The words “ net annual proceeds ” are defined to be the net proceeds realized during the preceding calendar year from the sale, or conversion into money or its equivalent, of all ores extracted by the owner, lessee, contractor or other person working upon or operating the property during or previous to the year for which the assessment is made, including all dumps and tailings, after making certain deductions. \"Séssion Laws, 1919, c. 114, § 5864. Upon the facts stated and under these constitutional and statutory provisions, the lower court upheld the validity of the tax. The plaintiff contended in the court below that the tailings deposit was neither a mine nor a part of a mine, but a thing separate and apart from its mining claims, constituting a “ valuable mineral deposit ” and taxable as such upon the value and not a multiple thereof; that the agreement with the leasing company was a sale of the deposit, which thereupon ceased to be assessable as its property, or the basis for assessment of its worked out and worthless mine; that since 1914 its mining claims, having become valueless and yielding no net proceeds, were not taxable; that the tax assessed was therefore in contravention of § 3, Article XIII, of the Constitution of Utah, requiring a uniform and equal rate of assessment of property according to its value in money, so that every person and corporation should pay a tax in proportion to such value; and also was in contravention of the clauses of the Fourteenth Amendment to the Constitution of the United States in respect of due process and equal protection of the laws. The court below denied these contentions and sustained the tax and the case comes here for review upon writ of error. The defendant has submitted a motion to dismiss the writ of error and of this we first dispose. The ground of the motion is that the case was tried by the court without a jury; that no exceptions were taken during the trial and no request for" } ]

[ { "docid": "22604371", "title": "", "text": "nor deny to any person mthin its jurisdiction the equal protection of the laws.” (Emphasis added.) Appellants argue at the outset that undocumented aliens, because of their immigration status, are not “persons within the jurisdiction” of the State of Texas, and that they therefore have no right to the equal protection of Texas law. We reject this argument. Whatever his status under the immigration laws, an alien is surely a “person” in any ordinary sense of that term. Aliens, even aliens whose presence in this country is unlawful, have long been recognized as “persons” guaranteed due process of law by the Fifth and Fourteenth Amendments. Shaughnessy v. Mezei, 345 U. S. 206, 212 (1953); Wong Wing v. United States, 163 U. S. 228, 238 (1896); Yick Wo v. Hopkins, 118 U. S. 356, 369 (1886). Indeed, we have clearly held that the Fifth Amendment protects aliens whose presence in this country is unlawful from invidious discrimination by the Federal Government. Mathews v. Diaz, 426 U. S. 67, 77 (1976). Appellants seek to distinguish our prior cases, emphasizing that the Equal Protection Clause directs a State to afford its protection to persons within its jurisdiction while the Due Process Clauses of the Fifth and Fourteenth Amendments contain no such assertedly limiting phrase. In appellants’ view, persons who have entered the United States illegally are not “within the jurisdiction” of a State even if they are present within a State’s boundaries and subject to its laws. Neither our cases nor the logic of the Fourteenth Amendment supports that constricting construction of the phrase “within its jurisdiction.” We have never suggested that the class of persons who might avail themselves of the equal protection guarantee is less than coextensive with that entitled to due process. To the contrary, we have recognized that both provisions were fashioned to protect an identical class of persons, and to reach every exercise of state authority. “The Fourteenth Amendment to the Constitution is not confined to the protection of citizens. It says: ‘Nor shall any state deprive any person of life, liberty, or property without due process of" } ]

[ { "docid": "22069554", "title": "", "text": "context overseas can be reduced to the issue of what process is ‘due’ a defendant in the particular circumstances of a particular case”). Since respondent is not a United States citizen, he can derive no comfort from the Reid holding. Verdugo-Urquidez also relies on a series of cases in which we have held that aliens enjoy certain constitutional rights. See, e. g., Plyler v. Doe, 457 U. S. 202, 211-212 (1982) (illegal aliens protected by Equal Protection Clause); Kwong Hai Chew v. Colding, 344 U. S. 590, 596 (1953) (resident alien is a “person” within the meaning of the Fifth Amendment); Bridges v. Wixon, 326 U. S. 135, 148 (1945) (resident aliens have First Amendment rights); Russian Volunteer Fleet v. United States, 282 U. S. 481 (1931) (Just Compensation Clause of Fifth Amendment); Wong Wing v. United States, 163 U. S. 228, 238 (1896) (resident aliens entitled to Fifth and Sixth Amendment rights); Yick Wo v. Hopkins, 118 U. S. 356, 369 (1886) (Fourteenth Amendment protects resident aliens). These cases, however, establish only that aliens receive constitutional protections when they have come within the territory of the United States and developed substantial connections with this country. See, e. g., Plyler, supra, at 212 (The provisions of the Fourteenth Amendment “ ‘are universal in their application, to all persons within the territorial jurisdiction . . .’”) (quoting Yick Wo, supra, at 369); Kwong Hai Chew, supra, at 596, n. 5 (“The Bill of Rights is a futile authority for the alien seeking admission for the first time to these shores. But once an alien lawfully enters and resides in this country he becomes invested with the rights guaranteed by the Constitution to all people within our borders”) (quoting Bridges, supra, at 161 (concurring opinion) (emphasis added)). Respondent is an alien who has had no previous significant voluntary connection with the United States, so these cases avail him not. Justice Stevens’ concurrence in the judgment takes the view that even though the search -took place in Mexico, it is nonetheless governed by the requirements of the Fourth Amendment because respondent was “lawfully" }, { "docid": "23232375", "title": "", "text": "within the country to be an infamous crime, punishable by deprivation of liberty and property.” Applying the reasoning of Yick Wo, the Court held that all persons within the territory of the United States are entitled to the protection guaranteed by the fifth and sixth amendments. The fourteenth amendment makes this shield equally strong against state action. In Plyler v. Doe, the Court affirmed that illegal aliens are persons within the meaning of the equal protection clause of the fourteenth amendment. And those who are “persons” entitled to equal protection are also entitled to due process. To be sure, the Constitution does not forbid all differences in governmental treatment between citizens and aliens, or between aliens who have been legally admitted to the United States and those who are present illegally. The due process clause does not guarantee aliens, whether present legally or illegally, the same rights as citizens. Excludable aliens, in turn, are situated differently even from illegal aliens who have landed in this country and integrated to some degree into the population. The government may therefore make classifications based on alienage, and these are, depending on their nature, subject either to “close judicial scrutiny” or to rational-basis analysis. In the absence of legitimate, countervailing state concerns, whose relative weight we need not now assess, even illegal aliens, however, are entitled to the guarantees of the fifth and fourteenth amendments. The “entry fiction” that excludable aliens are to be treated as if detained at the border despite their physical presence in the United States determines the aliens’ rights with regard to immigration and deportation proceedings. It does not limit the right of excludable aliens detained within United States territory to humane treatment. The basis for limiting the constitutional protection afforded excludable aliens has been the overriding concern that the United States, as a sovereign, maintain its right to self-determination. “As the history of its immigration policy makes clear, this nation has long maintained as a fundamental aspect of its right to self-determination the prerogative to determine whether, and in what numbers, outsiders without any cognizable connection to this society" }, { "docid": "5479403", "title": "", "text": "of nationality; and the equal protection of the laws is a pledge of the protection of equal laws. Yick Wo v. Hopkins, 118 U.S. 356, 369, 6 S.Ct. 1064, 30 L.Ed. 220 (1886). While we respect the historical tradition of the “entry fiction,” we do not believe it applies to deprive aliens living in the United States of their status as “persons” for the purposes of constitutional due process. As we understand the entry fiction doctrine, and the Supreme Court’s discussion of it in Zadvydas [v. Davis, 533 U.S. 678, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001)], excludable aliens are treated differently for due process purposes that deportable aliens: they are entitled to less process. In Landon v. Plasencia, the Court explained that “once an alien gains admission to our country and begins to develop the ties that go with permanent residence his constitutional status changes accordingly.” Our cases frequently suggest that a continuously present resident alien is entitled to a fair hearing when threatened with deportation. Landon, 459 U.S. at 32, 103 S.Ct. 321[, 74 L.Ed.2d 21] (citations omitted). And in Mezei, the Court held that: It is true that aliens who have once passed through our gates, even illegally, may be expelled only after proceedings conforming to traditional standards of fairness encompassed in due process of law. But an alien on the threshold of initial entry stands on a different footing: “Whatever the procedure authorized by Congress is, it is due process as far as an alien denied entry is concerned.” Mezei 345 U.S. at 212, 73 S.Ct. 625[, 97 L.Ed. 956] (citations omitted) (quoting United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 544, 70 S.Ct. 309, 94 L.Ed. 317 (1950)) (emphasis added). The fact that excludable aliens are entitled to less process, however, does not mean that they are not at all protected by the Due Process Clauses of the Fifth and Fourteenth Amendments. If ex-cludable aliens were not protected by even the substantive component of constitutional due process, as the government appears to argue, we do not see why the United States government could" }, { "docid": "7532414", "title": "", "text": "The class of persons, including illegal aliens, which also may avail itself of the equal protection guarantee is coextensive with that class entitled to due process. Plyler v. Doe, 457 U.S. 202, 210-16, 102 S.Ct. 2382, 2391-94, 72 L.Ed.2d 786 (1982). That constitutional respect for all persons within the territorial jurisdiction is without regard to any differences of race, of color, or of nationality, Yick Wo v. Hopkins, 118 U.S. 356, 369, 6 S.Ct. 1064, 1070, 30 L.Ed. 220 (1886). That does not mean, however, that the court for sentencing purposes after the defendant has entered a plea of guilty to a drug violation may not properly take note of the defendant’s illegal alien status from a country with a known reputation for illegal drug activity. At the sentencing hearing the government showed acute awareness of the distinction between what was appropriate and what was not. The government specifically disavowed any suggestion that the defendant or others similarly situated be treated more harshly solely because of their nationality or alien status. That obviously would be unconstitutional. The defendant objects to what the government labeled a “disturbing trend” in drug cases in that drug cases frequently involve recent immigrants of Cuban and Colombian origin. That does in fact appear to be a disturbing problem publically recognized, disturbing not just to prosecutors, but to courts and to citizens generally. Nor need the sentencing judge shut his eyes to the reality of the factual situation before him and pretend that the defendant is not an illegal alien from Colombia who has pleaded guilty to a drug violation. There can be no dispute but that the sentencing judge has wide discretion in considering all reliable and pertinent information which might reasonably bear on the sentencing decision. Wasman v. United States, 468 U.S. 559, 563-64, 104 S.Ct. 3217, 3220-21, 82 L.Ed.2d 424 (1984). That wide discretion will not be disturbed in the absence of gross abuse. United States v. Wilkins, 659 F.2d 769, 773 (7th Cir.), cert. denied, 454 U.S. 1102, 102 S.Ct. 681, 70 L.Ed.2d 646 (1981). The sentencing considerations of a trial judge" }, { "docid": "4043991", "title": "", "text": "the maintenance of a republican form of government. Such matters are so exclusively entrusted to the political branches as to be largely immune from judicial inquiry or interference.”)- The power of the national government to act in the immigration sphere is thus essentially plenary. Aliens can of course claim some constitutional protections. The language of the due process clause refers to “persons,” not “citizens,” and it is well established that aliens within the territory of the United States may invoke its provisions. See, e.g., Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 1070, 30 L.Ed. 220 (1886); Wong Wing v. United States, 163 U.S. 228, 16 S.Ct. 977, 981, 41 L.Ed. 140 (1896) (illegal resident alien could not be punished by sentence to hard labor without due process of law). While the cases have drawn a line for some purposes between excludable aliens who failed to effect entry into the country unimpeded and resident aliens, in this Circuit it is clear that the former also can be considered persons entitled to protection under the 14th Amendment. See Lynch v. Cannatella, 810 F.2d 1363, 1375 (5th Cir.1987) (“Ex-cludable aliens are not non-persons.”). We cannot suppose that the result in Wong Wing would have been different had the alien there been excludable rather than resident. However, alien status can affect our analysis of constitutional rights. Because of their special position, certain classifications and restrictions that would be intolerable if applied to citizens are allowable when applied to resident aliens. See, e.g., Cabell v. Chavez-Salido, 454 U.S. 432, 102 S.Ct. 735, 740, 70 L.Ed.2d 677 (1982) (state’s exclusion of resident aliens from basic governmental functions did not violate the constitution). See also DeCanas v. Bica, 424 U.S. 351, 96 S.Ct. 933, 47 L.Ed.2d 43 (1976). More importantly for the issue before us, courts have long recognized that the governmental power to exclude or expel aliens may restrict aliens’ constitutional rights when the two come into direct conflict. See Mathews v. Diaz, 426 U.S. 67, 96 S.Ct. 1883, 1891, 48 L.Ed.2d 478 (1976) (“In the exercise of its broad power over naturalization" }, { "docid": "23015674", "title": "", "text": "to the protection of citizens. It says: “Nor shall any state deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” These provisions are universal in their application, to all persons within the territorial jurisdiction, without regard to any differences of race, of color, or of nationality; and the equal protection of the laws is a pledge of the protection of equal laws. Yick Wo v. Hopkins, 118 U.S. 356, 369, 6 S.Ct. 1064, 30 L.Ed. 220 (1886). While we respect the historical tradition of the “entry fiction,” we do not believe it applies to deprive aliens living in the United States of their status as “persons” for the purposes of constitutional due process. In fact, in Mathews v. Diaz, the Supreme Court held in regard to Cuban aliens who were in the United States on immigration parole pursuant to 8 U.S.C. § 1182(d)(5), that “[e]ven one whose presence in this country is unlawful, involuntary, or transitory is entitled to that constitutional protection [of the Due Process Clauses of the Fifth and Fourteenth Amendments].” Mathews v. Diaz, 426 U.S. 67, 75 n. 7, 77, 96 S.Ct. 1883, 48 L.Ed.2d 478 (1976); see also Plyler v. Doe, 457 U.S. 202, 210, 102 S.Ct. 2382, 72 L.Ed.2d 786 (1982) (“Whatever his status under the immigration laws, an alien is surely a ‘person’ in any ordinary sense of that term.”). As we understand the entry fiction, and the Supreme Court’s discussion of it in Zadvydas, excludable aliens are treated differently for due process purposes than deportable aliens: they are entitled to less process. In Landon v. Plasencia, the Court explained that “once an alien gains admission to our country and begins to develop the ties that go with permanent residence his constitutional status changes accordingly. Our cases have frequently suggested that a continuously present resident alien is entitled to a fair hearing when threatened with deportation.” Landon, 459 U.S. at 32, 103 S.Ct. 321 (citations omitted) (emphasis added). And in Mezei, the Court held that: It" }, { "docid": "7532412", "title": "", "text": "HARLINGTON WOOD, Jr., Circuit Judge. Two issues are raised, both of which relate to the impact which the defendant’s illegal alien status may have had on the sentence imposed. The first requires consideration of references made by the court and Assistant United States Attorney during sentencing to the defendant as an illegal alien from Colombia. It is claimed those references violated the defendant’s due process and equal protection rights. The second claim is that the court in imposing sentence relied on unsubstantiated information about the defendant’s illegal entry into the United States. Background Edgar Gomez, the defendant, was indicted in March 1984 along with nine other persons for conspiracy to distribute a Schedule II controlled substance in violation of 21 U.S.C. § 846, and for related offenses. Gomez entered a plea of guilty to the conspiracy count in September 1985, and the matter was referred to the probation office for presentence investigation. The extensive drug activities of Gomez need not be set forth here in detail for our purposes. When the report was completed it contained the government’s explanation of the offense, and information provided by Gomez and his family. At the sentencing hearing the government advised the court, among other things, of the great problem caused by aliens engaging in drug transactions and suggested that the sentence of Gomez be used to send a deterrence message to others. When sentence was imposed, the tri al judge took note that Gomez was an illegal alien from South America who like some other aliens was engaging in drug trafficking, adding that the sentence of fifteen years imprisonment was intended as a deterrent to others. Gomez seeks remand for resentencing. Analysis It is clear that both the government and the sentencing judge noted Gomez’s status as an illegal alien from a Latin American country with an illegal drug reputation. If misused those considerations could violate the constitutional protections to which aliens, including illegal aliens, are entitled under the Fifth and Fourteenth Amendments. An illegal alien comes within the scope of the word “person” guaranteed due process under the Fifth and Fourteenth Amendments." }, { "docid": "9828210", "title": "", "text": "punishment without trial. In Yick Wo v. Hopkins, another early immigration case, the Supreme Court announced that the Fourteenth Amendment’s protections extend to aliens as well: The Fourteenth Amendment to the Constitution is not confined to the protection of citizens. It says: “Nor shall any State deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” These provisions are universal in their application, to all persons within the territorial jurisdiction, without regard to any differences of race, of color, or of nationality; and the equal protection of the laws is a pledge of the protection of equal laws. Yick Wo v. Hopkins, 118 U.S. 356, 369, 6 S.Ct. 1064, 30 L.Ed. 220 (1886) (finding imprisonment of Chinese immigrants under state statute unconstitutional because it violated Equal Protection Clause of Fourteenth Amendment); see also Flores, 507 U.S. at 315-16, 113 S.Ct. 1439 (O’Connor, J., concurring) (emphasizing that juvenile aliens have a constitutionally protected liberty interest, rooted in the Due Process Clause, in freedom from institutional confinement); Diaz, 426 U.S. at 77, 96 S.Ct. 1883 (noting that there are millions of aliens in this country and that “[t]he Fifth Amendment, as well as the Fourteenth Amendment, protects every one of these [aliens] from deprivation of life, liberty, or property without due process of law” whether they are here unlawfully or not). As the Supreme Court has evaluated whether to extend entitlements or rights to aliens in addition to those protected by the Fifth, Sixth, and Fourteenth Amendments, the Court has demonstrated a willingness to draw lines between the rights due to citizens and those due to aliens. See Diaz, 426 U.S. at 80, 96 S.Ct. 1883 (noting that “Congress regularly makes rules that would be unacceptable if applied to citizens”). The Court has also expressed its willingness to distinguish among different classifications of aliens. However, it has never held that aliens are utterly beyond the purview of the Constitution. Thus, in Diaz, the Court held that Congress may constitutionally condition an alien’s receipt of federal" }, { "docid": "22975763", "title": "", "text": "immigration laws, an alien is surely a ‘person! in any ordinary sense of that term. Aliens, even aliens whose presence in this country is unlawful, have long been recognized as ‘persons’ guaranteed due process of law by the Fifth and Fourteenth Amendments.”); Yick Wo v. Hopkins, 118 U.S. 356, 369, 6 S.Ct. 1064, 30 L.Ed. 220 (1886) (“[The Fourteenth Amendment’s] provisions are universal in their application, to all persons within the territorial jurisdiction, without regard to any differences of race, of color, or of nationality.”). At the same time, under the “entry fiction” recognized in Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 73 S.Ct. 625, 97 L.Ed. 956 (1953), an alien seeking admission has not “entered” the United States, even if the alien is in fact physically present. See id. at 213, 215, 73 S.Ct. 625; see also Kaplan v. Tod, 267 U.S. 228, 230, 45 S.Ct. 257, 69 L.Ed. 585 (1925) (though present in the United States, excluded alien “was still in theory of law at the boundary line and had gained no foothold in the United States”). Applying this legal fiction, Mezei held that the procedural due process rights of an alien detained on Ellis Island were not violated when he was excluded without a hearing. See Mezei, 345 U.S. at 214, 73 S.Ct. 625. Mezei explained: It is true that aliens who have once passed through our gates, even illegally, may be expelled only after proceedings conforming to traditional standards of fairness encompassed in due process of law. But an alien on the threshold of initial entry stands on a different footing: “Whatever the procedure authorized by Congress is, it is due process as far as an alien denied entry is concerned.” Id. at 212, 73 S.Ct. 625 (internal citations omitted). The entry fiction thus appears determinative of the procedural rights of aliens with respect to their applications for admission. The entry doctrine has not, however, been applied, by the Supreme Court or by this court, to deny all constitutional rights to non-admitted aliens. As Barrera-Echavarria v. Rison, 44 F.3d 1441 (9th Cir.1995) (en" }, { "docid": "23521899", "title": "", "text": "citizens. It says: ‘Nor shall any State deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.’ These provisions are universal in their application, to all persons within the territorial jurisdiction, without regard to any differences of race, of color, or of nationality; and the equal protection of the laws is a pledge of the protection of equal laws. Yick Wo v. Hopkins, 118 U.S. 356, 369, 6 S.Ct. 1064, 1070, 30 L.Ed. 220, 226 (1886) (emphasis supplied). The problem here is the fiction that ex-cludable aliens are not within the “territorial limits” of the United States. Though that fiction serves its purpose to limit the procedural rights .of an excludable alien “regarding his application” for admission, Landon v. Plascencia, supra, it strains credulity to maintain that an alien within our territorial limits may claim none of the rights accorded our citizens. And, indeed, in situations where excludable aliens within our borders have claimed deprivations of fundamental rights, the courts have been quick to respond. In Rodriquez-Fernandez v. Wilkinson, 654 F.2d 1382 (10th Cir.1981), the Tenth Circuit held “punishment” of excludable aliens was improper without the “substantive and procedural due process guarantees of the Fifth Amendment.” “Surely Congress could not order the killing of Rodriquez-Fernandez and others in his status on the ground that Cuba would not take them back and this country does not want them.” Id. at 1387. And, in United States v. Henry, 604 F.2d 908 (5th Cir.1979), the court held that an excludable alien is entitled to fifth amendment rights once criminal proceedings against him have commenced. Id. at 914. See also Plyer v. Doe, 457 U.S. 202, 210, 102 S.Ct. 2382, 2391, 72 L.Ed.2d 786 (1982) (whatever status is under immigration laws, undocumented alien is surely “person” in ordinary sense of word under fifth and fourteenth amendments) (deportable alien). See generally Note, The Constitutional Rights of Excluded Aliens: Proposed Limitations on the Indefinite Detention of the Cuban Refugees, 70 Geo.L.J. 1303 (1982). Although the class members ultimately seek" }, { "docid": "1214869", "title": "", "text": "concerns, and defendant can defend itself adequately without information about the anonymous plaintiffs’ identities. Accordingly, we find that the anonymous plaintiffs may proceed without identifying themselves. We note, finally, that we find misplaced defendant’s concern that this court’s acknowledgment of the Doe plaintiffs’ right to proceed anonymously would “recognize” and “affirm” an “interest in evading the laws of the United States.” (Memorandum of Law in Opposition to Plaintiffs’ Cross-Motion for Summary Judgment (Doc. 150) at 107). A venerable principle of constitutional law holds that all persons in the United States have rights under the Fourteenth Amendment to the United States Constitution, whether they are citizens or not. See Plyler v. Doe, 457 U.S. 202, 210, 102 S.Ct. 2382, 72 L.Ed.2d 786 (1982) (holding that “[w]hatever his status under the immigration laws, an alien is surely a ‘person’ in any ordinary sense of that term. Aliens, even aliens whose presence in this country is unlawful, have long been recognized as ‘persons’ guaranteed due process of law by the Fifth and Fourteenth Amendments.”); Yick Wo v. Hopkins, 118 U.S. 356, 369, 6 S.Ct. 1064, 30 L.Ed. 220 (1886) (holding that “[t]he Fourteenth Amendment to the Constitution is not confined to the protection of citizens. It says: ‘Nor shall any State deprive any person of life, liberty or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.’ These provisions are universal in their application, to all persons within the territorial jurisdiction, without regard to any differences of race, or of nationality; and the equal protection of the laws is a pledge of the protection of equal laws.”). The Doe plaintiffs’ interest in this case is in vindicating rights they claim are guaranteed them under the Constitution, and' those rights exist whatever their status under the nation’s immigration laws. Allowing the Doe plaintiffs to proceed anonymously in the unique conditions of this case would not reward them for evading the country’s immigration laws. It would instead provide them an opportunity to secure the rights guaranteed them by the Constitution of the United States." }, { "docid": "8821942", "title": "", "text": "contend their Eighth Amendment claim is cognizable. Because we affirm the district court’s dismissal of the Eighth Amendment claim on other grounds, we do not reach this argument. .In Eisentrager, the Supreme Court held that German nationals who were imprisoned at a U.S. army base in Germany and convicted of war crimes committed during World War II had no habeas corpus right under the U.S. Constitution. In Verdugo-Urquidez, the Court held that a Mexican citizen whose residence in Mexico was searched by agents of the United States Drug Enforcement Administration could not assert a claim under the Fourth Amendment to the U.S. Constitution. The Court explained that it had “rejected the claim that aliens are entitled to Fifth Amendment rights outside the sovereign territory of the United States” and described holdings such as Plyler v. Doe, 457 U.S. 202, 210-12, 102 S.Ct. 2382, 72 L.Ed.2d 786 (1982) (illegal aliens residing in United States protected by Equal Protection Clause), and Kwong Hai Chew v. Colding, 344 U.S. 590, 596, 73 S.Ct. 472, 97 L.Ed. 576 (1953) (resident alien “person” within meaning of Fifth Amendment), and Bridges v. Wixon, 326 U.S. 135, 148, 65 S.Ct. 1443, 89 L.Ed. 2103 (1945) (resident aliens have First Amendment rights), and Russian Volunteer Fleet v. United States, 282 U.S. 481, 489, 51 S.Ct. 229, 75 L.Ed. 473 (1931) (foreign corporation doing business in America entitled to just compensation under Fifth Amendment for property taken by U.S. government), and Wong Wing v. United States, 163 U.S. 228, 238, 16 S.Ct. 977, 41 L.Ed. 140 (1896) (resident aliens entitled to Fifth and Sixth Amendment rights), and Yick Wo v. Hopkins, 118 U.S. 356, 369, 6 S.Ct. 1064, 30 L.Ed. 220 (1886) (Fourteenth Amendment protects resident aliens), as \"establish[ing] only that aliens receive constitutional protections when they have come within the territory of the United States and developed substantial connections with this country.” 494 U.S. at 269, 271, 110 S.Ct. 1056. In Zadvydas, the Court reaffirmed the constitutional distinction between persons present in the United States and persons outside the United States. The Court held that a federal statute" }, { "docid": "1214999", "title": "", "text": "who break the laws to enter, work or reside in this country should not have access to the courts because they are ''criminals” undeserving of the rights those courts seek to protect. \"Illegal means illegal,” after all. Such argument, however, flies in the face of long-established principles of constitutional law, not to mention the concept of justice. All persons in the United States have rights under the Fourteenth Amendment to the United States Constitution, whether they are citizens or not. See Plyler, 457 U.S. at 210, 102 S.Ct. 2382 (holding that \"[wjhat-ever his status under the immigration laws, an alien is surely a ‘person’ in any ordinary sense of that term. Aliens, even aliens whose presence in this country is unlawful, have long been recognized as ‘persons’ guaranteed due process of law by the Fifth and Fourteenth Amendments.”); Yick Wo v. Hopkins, 118 U.S. 356, 369, 6 S.Ct. 1064, 30 L.Ed. 220 (1886) (holding that “[t]he Fourteenth Amendment to the Constitution is not confined to the protection of citizens. It says: •‘Nor shall any State deprive any person of life, liberty or property without due process of law; nor deny to any person within its jurisdiction the equal ’ protection of the laws.’ These provisions are universal in their application, to all persons within the territorial jurisdiction, without regard to any differences of race, or of nationality; and the equal protection of the laws is a pledge of the protection of equal laws.”). . Indeed, it appears that the \"zone of interests” test should not be an issue in this case at all, since the plaintiffs here do not challenge the application of a particular provision of federal or state law, but are instead seeking to vindicate their rights against enactment of ordinances to which they are clearly subject. Litigating the \"zone of interests” test in a case where the plaintiffs bring suit against ordinances aimed at them and their interests appears exceedingly pointless. . In any case, federal courts have found that a challenge to a state law that argues for preemption based on a contrary provision of federal" }, { "docid": "9828209", "title": "", "text": "not wholly without constitutional protection. Indeed, the Supreme Court has accorded aliens a panoply of Fifth, Sixth, and Fourteenth Amendment rights. Should an excludable alien be accused of committing a crime, he would be entitled to the constitutional protections of the Fifth and Sixth Amendments. See Wong Wing v. United States, 163 U.S. 228, 238, 16 S.Ct. 977, 41 L.Ed. 140 (1896) (“[I]t must be concluded that all persons within the territory of the United States are entitled to the protection guaranteed by [the fifth and sixth] amendments, and that even aliens shall not be held to answer for a capital or other infamous crime, unless on a presentment or indictment of a grand jury, nor be deprived of life, liberty, or property without due process of law.”). Thus, in Wong Wing v. United States, the Court struck down a federal statute imposing a maximum of one year of hard labor on a Chinese alien upon a determination of his deportability, finding it a violation of the alien’s due process right to be free from punishment without trial. In Yick Wo v. Hopkins, another early immigration case, the Supreme Court announced that the Fourteenth Amendment’s protections extend to aliens as well: The Fourteenth Amendment to the Constitution is not confined to the protection of citizens. It says: “Nor shall any State deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” These provisions are universal in their application, to all persons within the territorial jurisdiction, without regard to any differences of race, of color, or of nationality; and the equal protection of the laws is a pledge of the protection of equal laws. Yick Wo v. Hopkins, 118 U.S. 356, 369, 6 S.Ct. 1064, 30 L.Ed. 220 (1886) (finding imprisonment of Chinese immigrants under state statute unconstitutional because it violated Equal Protection Clause of Fourteenth Amendment); see also Flores, 507 U.S. at 315-16, 113 S.Ct. 1439 (O’Connor, J., concurring) (emphasizing that juvenile aliens have a constitutionally protected liberty interest, rooted in the Due" }, { "docid": "9828291", "title": "", "text": "despite the majority’s assertion to the contrary. . In Verdugo-Urquidez, the Supreme Court reviewed several of the cases cited by the majority herein. According to the Verdugo-Urquidez Court, those cases stand for the proposition that aliens enjoy constitutional protections once they enter the United States; Verdugo-Urquidez also relies on a series of cases in which we have held that aliens enjoy certain constitutional rights. See, e.g., Plyler v. Doe, 457 U.S. 202, 211-212, 102 S.Ct. 2382, 2391-92, 72 L.Ed.2d 786 (1982) (illegal aliens protected by Equal Protection Clause); Kwong Hai Chew v. Colding, 344 U.S. 590, 596, 73 S.Ct. 472, 477, 97 L.Ed. 576 (1953) (resident alien is a \"person” within the meaning of the Fifth Amendment); Bridges v. Wixon, 326 U.S. 135, 148, 65 S.Ct. 1443, 1449, 89 L.Ed. 2103 (1945) (resident aliens have First Amendment rights); Russian Volunteer Fleet v. United States, 282 U.S. 481, 51 S.Ct. 229, 75 L.Ed. 473 (1931) (Just Compensation Clause of Fifth Amendment); Wong Wing v. United States, 163 U.S. 228, 238, 16 S.Ct. 977, 981, 41 L.Ed. 140 (1896) (resident aliens entitled to Fifth and Sixth Amendment rights); Yick Wo v. Hopkins, 118 U.S. 356, 369, 6 S.Ct. 1064, 1070, 30 L.Ed. 220 (1886) (Fourteenth Amendment protects resident aliens). These cases, however, establish only that aliens receive constitutional protections when they have come within the territory of the United States and developed substantial connections with this country. See, e.g., Plyler, supra, 457 U.S., at 212, 102 S.Ct., at 2392 (The provisions of the Fourteenth Amendment \" 'are universal in their application, to all persons within the territorial jurisdiction ...' ”) (quoting Yick Wo, supra, 118 U.S., at 369, 6 S.Ct., at 1070); Kwong Hai Chew, supra, 344 U.S., at 596, n. 5, 73 S.Ct., at 477, n. 5 (“The Bill of Rights is a futile authority for the alien seeking admission for the first time to these shores. But once an alien lawfully enters and resides in this country he becomes invested with the rights guaranteed by the Constitution to all people within our borders”) (quoting Bridges, supra, 326 U.S., at 161," }, { "docid": "23232374", "title": "", "text": "court should decide that the injuries allegedly inflicted upon the stowaways did violate their constitutional rights. A. In support of the proposition that excludable aliens possess no constitutional rights, the harbor police defendants rely on dicta contained in the Eleventh Circuit’s opinion in Garcia-Mir v. Meese in which that court wrote that excludable aliens “have virtually no constitutional rights.” Reliance on this partial sentence overstates the scope of the opinion from which it is taken and — even if construed literally— does not mean that such aliens have no constitutional protection whatever. The fourteenth amendment due process clause protects all “persons” not merely those who are citizens or legal resi dents. Long ago, in Yick Wo v. Hopkins, the Supreme Court noted that its protections apply universally to “all persons within the territorial jurisdiction, without regard to any differences of race, of color, or of nationality.” In Wong Wing v. United States, the Court held that the due process clause affords illegal aliens present in the United States protection from federal legislation declaring “unlawful residence within the country to be an infamous crime, punishable by deprivation of liberty and property.” Applying the reasoning of Yick Wo, the Court held that all persons within the territory of the United States are entitled to the protection guaranteed by the fifth and sixth amendments. The fourteenth amendment makes this shield equally strong against state action. In Plyler v. Doe, the Court affirmed that illegal aliens are persons within the meaning of the equal protection clause of the fourteenth amendment. And those who are “persons” entitled to equal protection are also entitled to due process. To be sure, the Constitution does not forbid all differences in governmental treatment between citizens and aliens, or between aliens who have been legally admitted to the United States and those who are present illegally. The due process clause does not guarantee aliens, whether present legally or illegally, the same rights as citizens. Excludable aliens, in turn, are situated differently even from illegal aliens who have landed in this country and integrated to some degree into the population. The" }, { "docid": "6092103", "title": "", "text": "United States, without distinguishing between those who are here legally or illegally, or between residents and visitors. See, e.g., Yick Wo v. Hopkins, 118 U.S. 356, 369, 6 S.Ct. 1064, 1070, 30 L.Ed. 220 (1886) (“The Fourteenth Amendment ... is not confined to the protection of citizens.... [Its] provisions are universal in their application, to all persons within the territorial jurisdiction [of the United States].”); In re Ross, 140 U.S. 453, 464, 11 S.Ct. 897, 900, 35 L.Ed. 581 (1891) (holding that although fifth and sixth amendments do not apply to trials conducted in consular courts, their guarantees apply to “citizens and others within the United States, or who are brought there for trial”); Wong Wing v. United States, 163 U.S. 228, 238, 16 S.Ct. 977, 981, 41 L.Ed. 140 (1896) (holding that “all persons within the territory of the United States are entitled to the protection guaranteed by [the fifth and sixth] amendments”); United States ex rel. Turner v. Williams, 194 U.S. 279, 291, 24 S.Ct. 719, 722, 48 L.Ed. 979 (1904) (observing that fifth and sixth amendments protect aliens once they are in this country); Mathews v. Diaz, 426 U.S. 67, 77, 96 S.Ct. 1883, 1890, 48 L.Ed.2d 478 (1976) (explaining that all aliens within the jurisdiction of the United States enjoy the protections of the fifth and fourteenth amendments and may not be invidiously discriminated against by the federal government). In other cases, the Court has considered specifically the constitutional protections enjoyed by illegal aliens. See, e.g., Plyler v. Doe, 457 U.S. 202, 211, 102 S.Ct. 2382, 2391, 72 L.Ed.2d 786 (1982) (holding that under the Equal Protection Clause of the fourteenth amendment, states may not discriminate against illegal aliens by withholding free public education; rejecting argument that illegal aliens are not within the jurisdiction of the states or the federal government and therefore are not entitled to equal protection rights). From these cases, we learn that aliens within the United States enjoy the benefits of the first, fifth, sixth and fourteenth amendments. The question we consider today is whether an alien, Verdugo-Urquidez, can claim benefits under" }, { "docid": "23438746", "title": "", "text": "342 U.S. 524, 72 S.Ct. 525, 96 L.Ed. 547 (1952). Nevertheless, if an alien in Rodriguez-Fernandez’ position should be accused of committing a crime against the laws of this country, he would be entitled to the constitutional protections of the Fifth and Fourteenth Amendments. Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 (1886), stated, “The Fourteenth Amendment to the Constitution is not confined to the protection of citizens. It says: ‘Nor shall any State deprive any person of life, liberty or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.’ These provisions are universal in their application, to all persons within the territorial jurisdiction, without regard to any difference of race, of color, or of nationality; and the- equal protection of the laws is a pledge of the protection of equal laws.” 118 U.S. at 369, 6 S.Ct. at 1070. In Wong Wing v. United States, 163 U.S. 228, 16 S.Ct. 977, 41 L.Ed. 140 (1896), the Court extended this concept. “Applying this reasoning to the 5th and 6th Amendments, it must be concluded that all persons within the territory of the United States are entitled to the protection guaranteed by those amendments, and that even aliens shall not. be held to answer for a capital or other infamous crime, unless on a presentment or indictment of a grand jury, nor be deprived of life, liberty, or property without due process of law.” 163 U.S. at 238, 16 S.Ct. at 981. The Court there struck down as unconstitutional a statute allowing administrative officials to arrest and imprison for up to one year Chinese found to be illegally within the country. The opinion quoted with apparent approval language from Fong Yue Ting v. United States, 149 U.S. 698, 13 S.Ct. 1016, 37 L.Ed. 905 (1893), which declared orders of deportation are not punishment for crime, but distinguished “those provisions of the statute which contemplate only the exclusion or expulsion of Chinese persons and those which provide for their imprisonment at hard labor, pending which their" }, { "docid": "5479402", "title": "", "text": "that the application of the expedited removal statute deprives them of due process. Respondents argue that because petitioners have not technically entered the United States, they have virtually no constitutional rights with respect to their applications or immigration status. While petitioners’ status certainly limits the level of constitutional protections afforded to them, the Sixth Circuit has made clear that even aliens who have not technically entered the United States because of the entry fiction doctrine are nonetheless entitled to a minimum constitutional protection: Excludable aliens — like all aliens — are clearly protected by the Due Process Clauses of the Fifth and Fourteenth Amendments: The fourteenth amendment to the constitution is not confined to the protection of citizens. It says: “Nor shall any state deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” These provisions are universal in their application, to all persons within the territorial jurisdiction, without regard to any differences of race, of color, or of nationality; and the equal protection of the laws is a pledge of the protection of equal laws. Yick Wo v. Hopkins, 118 U.S. 356, 369, 6 S.Ct. 1064, 30 L.Ed. 220 (1886). While we respect the historical tradition of the “entry fiction,” we do not believe it applies to deprive aliens living in the United States of their status as “persons” for the purposes of constitutional due process. As we understand the entry fiction doctrine, and the Supreme Court’s discussion of it in Zadvydas [v. Davis, 533 U.S. 678, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001)], excludable aliens are treated differently for due process purposes that deportable aliens: they are entitled to less process. In Landon v. Plasencia, the Court explained that “once an alien gains admission to our country and begins to develop the ties that go with permanent residence his constitutional status changes accordingly.” Our cases frequently suggest that a continuously present resident alien is entitled to a fair hearing when threatened with deportation. Landon, 459 U.S. at 32, 103 S.Ct. 321[," }, { "docid": "7532413", "title": "", "text": "contained the government’s explanation of the offense, and information provided by Gomez and his family. At the sentencing hearing the government advised the court, among other things, of the great problem caused by aliens engaging in drug transactions and suggested that the sentence of Gomez be used to send a deterrence message to others. When sentence was imposed, the tri al judge took note that Gomez was an illegal alien from South America who like some other aliens was engaging in drug trafficking, adding that the sentence of fifteen years imprisonment was intended as a deterrent to others. Gomez seeks remand for resentencing. Analysis It is clear that both the government and the sentencing judge noted Gomez’s status as an illegal alien from a Latin American country with an illegal drug reputation. If misused those considerations could violate the constitutional protections to which aliens, including illegal aliens, are entitled under the Fifth and Fourteenth Amendments. An illegal alien comes within the scope of the word “person” guaranteed due process under the Fifth and Fourteenth Amendments. The class of persons, including illegal aliens, which also may avail itself of the equal protection guarantee is coextensive with that class entitled to due process. Plyler v. Doe, 457 U.S. 202, 210-16, 102 S.Ct. 2382, 2391-94, 72 L.Ed.2d 786 (1982). That constitutional respect for all persons within the territorial jurisdiction is without regard to any differences of race, of color, or of nationality, Yick Wo v. Hopkins, 118 U.S. 356, 369, 6 S.Ct. 1064, 1070, 30 L.Ed. 220 (1886). That does not mean, however, that the court for sentencing purposes after the defendant has entered a plea of guilty to a drug violation may not properly take note of the defendant’s illegal alien status from a country with a known reputation for illegal drug activity. At the sentencing hearing the government showed acute awareness of the distinction between what was appropriate and what was not. The government specifically disavowed any suggestion that the defendant or others similarly situated be treated more harshly solely because of their nationality or alien status. That obviously would be" } ]

[ { "docid": "20168867", "title": "", "text": "09-01, at 17). As long as the borrower has complied with the terms of the TPP and the income representations have been verified, the servicer is directed to offer the borrower a permanent modification at the end of the three-month period. (See id. at 17-18). The controlling supplemental directive anticipates that the servicer will verify the borrower’s representations regarding their income during the trial period. (See id.). B. Contractual Language in the Trial Period Plan Agreements The government created one uniform agreement to be executed by servicers and eligible borrowers. The TPP is a four-page document and “has the appearances of a contract.” Durmic v. J.P. Morgan Chase Bank, N.A., 2010 WL 4825632, at *1 (D.Mass. Nov. 24, 2010). The first sentence of the TPP provides: If I am in compliance with this Loan Trial Period and my representations in Section 1 continue to be true in all material respects, then the Lender will provide me with a Loan Modification Agreement, as set forth in Section 3, that would amend and supplement (1) the Mortgage on the Property, and (2) the Note secured by the Mortgage. (SAC, Ex. 7, Bosque TPP). Four sentences later, the TPP states, “I understand that after I sign and return two copies of this Plan to the Lender, the Lender will send me a signed copy of the Plan if I qualify for the Offer or will send me written notice that I do not qualify for the offer.” (Id.). Section 2 of the TPP sets forth the amount and date of each monthly payment, and states that “TIME IS OF THE ESSENCE under this Plan.” (Id. ¶2). It next details three conditions under which the TPP would not result in a permanent modification: if, prior to the Modification Effective Date, (1) if the Lender does not provide the borrower with a fully executed copy of the plan and permanent modification agreement, (2) if the borrower does not make all payments provided under the plan, or (3) if the financial representations made in the eligibility assessment stage are no longer correct. (See id. ¶2^)). Section" } ]

[ { "docid": "22239019", "title": "", "text": "it formulated using the waterfall method. The trial period under the TPP lasted three or more months, during which time the lender “must service the mortgage loan ... in the same manner as it would service a loan in forbearance.” Supplemental Directive 09-01. After the trial period, if the borrower complied with all terms of the TPP Agreement — including making all required payments and providing all required documentation — and if the borrower’s representations remained true and correct, the servicer had to offer a permanent modification. See Supplemental Directive 09-01 (“If the borrower complies with the terms and conditions of the Trial Period Plan, the loan modification will become effective on the first day of the month following the trial period.... ”). Treasury modified its directives on the timing of the verification process in a way that affects this case. Under the original guidelines that were in effect when Wigod applied for a modification, a servicer could initiate a TPP based on a borrower’s undocumented representations about her finances. See Supplemental Directive 09-01 (“Servicers may use recent verbal [sic] financial information to prepare and offer a Trial Period Plan. Servicers are not required to verify financial information prior to the effective date of the trial period.”). Those guidelines were part of a decision to roll out HAMP very quickly. C. Plaintiff’s Loan In September 2007, Wigod obtained a home mortgage loan for $728,500 from Wachovia Mortgage, which later merged into Wells Fargo. (For simplicity, we refer only to Wells Fargo here.) Finding herself in financial distress, Wigod submitted a written request to Wells Fargo for a HAMP modification in April 2009. At that time, Treasury’s original guidelines were still in force, so Wells Fargo could choose whether (A) to offer Wigod a trial modification based on unverified oral representations, or (B) to require her to provide documentary proof of her financial information before commencing the trial plan. Wigod alleges that Wells Fargo took option (B). Only after Wigod provided all required financial documentation did Wells Fargo, in mid-May 2009, determine that Wigod was eligible for HAMP and send her" }, { "docid": "5275088", "title": "", "text": "of trial payments. They allege that they complied with their trial plans and made the required payments, and should have been offered permanent modifications. The district court dismissed both actions under Rule 12(b)(6), so we accept the allegations of the complaints as true. Kahle v. Gonzales, 487 F.3d 697, 699 (9th Cir. 2007). • According to Corvello’s complaint, he provided Wells Fargo with his financial information via a financial worksheet in June of 2009. ■ Wells Fargo then sent him a TPP. The TPP stated in the first line that if Corvello’s representations were accurate and he complied with the terms of the trial plan, he would receive a modification offer. - The TPP also, and on the same page, assured him, as it was required to do by the applicable Treasury Directive, that the bank would tell him one way or another on his eligibility for a modification. It read: If I am in compliance with this Loan Trial Period and my representations in Section 1 continue to be true in all material respects, then the Lender will provide me with a Loan Modification Agreement, as set forth in Section 3, that would amend and supplement (1) the Mortgage on the Property, and (2) the Note secured by the Mortgage.... I understand that after I sign and return two copies of this Plan to the Lender, the Lender will send me a signed copy of this Plan if I qualify for the Offer or will send me written notice that I do not qualify for the Offer. Paragraph 2F of the TPP alerted the borrower to the obligations of the parties before there could be a permanent modification. It required, in addition to the borrower making the payments and maintaining the accuracy of the representations, that the servicer provide an executed copy of the TPP and Modification Agreement to the borrower. It stated as follows: If prior to the Modification Effective Date, (i) the Lender does not provide me a fully executed copy of this Plan and the Modification Agreement; (ii) I have not made the Trial Period payments" }, { "docid": "19596168", "title": "", "text": "documents remained unmodified and in force, but under ... the TPP, Wells Fargo still had an obligation to offer [the plaintiff] a permanent modification once she satisfied all her obligations under the agreement.\" Id . at 563 ; see also Oskoui v. J.P. Morgan Chase Bank, N.A. , 851 F.3d 851, 859 (9th Cir. 2017) (\"Once [the plaintiff] made her three payments, Chase was obligated by the explicit language of its offer [in the TPP] to send her an Agreement for her signature 'which will modify the loan as necessary to reflect this new payment amount.' ... Chase must abide by its own language.\"); George v. Urban Settlement Servs. , 833 F.3d 1242, 1260 (10th Cir. 2016) (\"[W]e conclude that the language in BOA's TPP documents clearly and unambiguously promises to provide permanent HAMP loan modifications to borrowers who comply with the terms of their TPPs.\"); Young v. Wells Fargo Bank, N.A. , 717 F.3d 224, 234 (1st Cir. 2013) (finding \"[t]he TPP's plain terms therefore required Wells Fargo to offer her a permanent modification,\" where the TPP provided that if plaintiff made timely payments, provided any necessary information, and truthfully represented her financial situation, the lender \"will\" send her a \"Modification Agreement for her signature which will modify her Loan Documents\"); Corvello v. Wells Fargo Bank, NA , 728 F.3d 878, 883 (9th Cir. 2013) (finding that \"the bank was contractually obligated under the terms of the TPP to offer a permanent modification to borrowers who complied with the TPP by submitting accurate documentation and making trial payments\"). We find the reasoning of the First, Seventh, Ninth, and Tenth Circuits persuasive. Courts within this circuit have also considered this question but have come to varying conclusions. See Williams v. Saxon Mortg. Servs., Inc. , No. 13-10817, 2014 WL 765055, at *2 (E.D. Mich. Feb. 26, 2014) (finding that the TPP obligated the defendant to modify the plaintiffs' loan because the TPP said it would \"modify Plaintiffs' loan if Plaintiffs complied with the terms of the trial period and if all of Plaintiff's representations about their financial situation continued to" }, { "docid": "22239020", "title": "", "text": "may use recent verbal [sic] financial information to prepare and offer a Trial Period Plan. Servicers are not required to verify financial information prior to the effective date of the trial period.”). Those guidelines were part of a decision to roll out HAMP very quickly. C. Plaintiff’s Loan In September 2007, Wigod obtained a home mortgage loan for $728,500 from Wachovia Mortgage, which later merged into Wells Fargo. (For simplicity, we refer only to Wells Fargo here.) Finding herself in financial distress, Wigod submitted a written request to Wells Fargo for a HAMP modification in April 2009. At that time, Treasury’s original guidelines were still in force, so Wells Fargo could choose whether (A) to offer Wigod a trial modification based on unverified oral representations, or (B) to require her to provide documentary proof of her financial information before commencing the trial plan. Wigod alleges that Wells Fargo took option (B). Only after Wigod provided all required financial documentation did Wells Fargo, in mid-May 2009, determine that Wigod was eligible for HAMP and send her a TPP Agreement. The TPP stated: “I understand that after I sign and return two copies of this Plan to the Lender, the Lender will send me a signed copy of this Plan if I qualify for the [permanent modification] Offer or will send me written notice that I do not qualify for the Offer.” TPP ¶ 2. On May 28, 2009, Wigod signed two copies of the TPP Agreement and returned them to the bank, along with additional documents and the first of four modified trial period payments. Wells Fargo then executed the TPP Agreement and sent a copy to Wigod in early June 2009. The trial term ran from July 1, 2009 to November 1, 2009. The TPP Agreement provided: “If I am in compliance with this Loan Trial Period and my representations in Section 1 continue to be true in all material respects, then the Lender will provide me with a [permanent] Loan Modification Agreement.” TPP ¶ 1. Wigod timely made, and Wells Fargo accepted, all four payments due under the trial" }, { "docid": "22239018", "title": "", "text": "to 31 percent.” Third, the servicer applied a Net Present Value (NPV) test to assess whether the modified mortgage’s value to the servicer would be greater than the return on the mortgage if unmodified. The NPV test is “essentially an accounting calculation to determine whether it is more profitable to modify the loan or allow the loan to go into foreclosure.” Williams v. Geithner, No. 09-1959 ADM/JJG, 2009 WL 3757380, at *3 n. 3 (D.Minn. Nov. 9, 2009). If the NPV result was negative — that is, the value of the modified mortgage would be lower than the servicer’s expected return after foreclosure — the servicer was not obliged to offer a modification. If the NPV was positive, however, the Treasury directives said that “the servicer MUST offer the modification.” Supplemental Directive 09-01. B. The Trial Period Plan Where a borrower qualified for a HAMP loan modification, the modification process itself consisted of two stages. After determining a borrower was eligible, the servicer implemented a Trial Period Plan (TPP) under the new loan repayment terms it formulated using the waterfall method. The trial period under the TPP lasted three or more months, during which time the lender “must service the mortgage loan ... in the same manner as it would service a loan in forbearance.” Supplemental Directive 09-01. After the trial period, if the borrower complied with all terms of the TPP Agreement — including making all required payments and providing all required documentation — and if the borrower’s representations remained true and correct, the servicer had to offer a permanent modification. See Supplemental Directive 09-01 (“If the borrower complies with the terms and conditions of the Trial Period Plan, the loan modification will become effective on the first day of the month following the trial period.... ”). Treasury modified its directives on the timing of the verification process in a way that affects this case. Under the original guidelines that were in effect when Wigod applied for a modification, a servicer could initiate a TPP based on a borrower’s undocumented representations about her finances. See Supplemental Directive 09-01 (“Servicers" }, { "docid": "4431971", "title": "", "text": "2011 WL 1770947, at *3 (D.Minn. May 9, 2011). HAMP uses a two-step process for modifications. See U.S. Dep’t of Treasury, Supplemental Directive 09-01, Introduction to the Home Affordable Modification Program 14 (2009). Step one involves a trial plan in which a servicer and borrower agree to trial payments. Participating servicers must evaluate several criteria, including a NPV calculation, when considering whether to offer a modification. Williams, 2009 WL 3757380, at *2-3 & *3 n. 3. If a borrower meets all HAMP criteria and makes trial payments, step two involves modification of the underlying loan. See Supplemental Directive 09-01, at 14. The Trial Period Plan is “three months in duration (or longer if necessary to comply with applicable contractual obligations).” Id. at *17. Defendant cites Cox v. Mortgage Electronic Registration Systems, 794 F.Supp.2d 1060 (D.Minn.2011), in support of its argument that Bohnhoff s claims are barred by a lack of private remedy under HAMP. Bohnhoff responds that Cox does not stand for the proposition that HAMP creates an absolute shield for lenders under state law. The court agrees. Cox did not consider whether state law claims that implicate HAMP are preempted. Instead, in Cox, the court determined that the lack of a private cause of action reinforces the fact that HAMP, the ESS A and entry into a Trial Period Plan do not create an unconditional entitlement to a loan modification. As a result, each of the state-law claims in Cox failed on the merits. This case is similar. All of Bohnhoffs claims relate to her belief that she is entitled to modification based on the TPP and Wells Fargo’s conduct associated with the request. Accordingly, as in Cox, the court addresses each claim. II. Standard of Review To survive a motion to dismiss for failure to state a claim, “ ‘a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.’ ” Braden v. Wal-Mart Stores, Inc., 588 F.3d 585, 594 (8th Cir.2009) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009))." }, { "docid": "20168868", "title": "", "text": "on the Property, and (2) the Note secured by the Mortgage. (SAC, Ex. 7, Bosque TPP). Four sentences later, the TPP states, “I understand that after I sign and return two copies of this Plan to the Lender, the Lender will send me a signed copy of the Plan if I qualify for the Offer or will send me written notice that I do not qualify for the offer.” (Id.). Section 2 of the TPP sets forth the amount and date of each monthly payment, and states that “TIME IS OF THE ESSENCE under this Plan.” (Id. ¶2). It next details three conditions under which the TPP would not result in a permanent modification: if, prior to the Modification Effective Date, (1) if the Lender does not provide the borrower with a fully executed copy of the plan and permanent modification agreement, (2) if the borrower does not make all payments provided under the plan, or (3) if the financial representations made in the eligibility assessment stage are no longer correct. (See id. ¶2^)). Section 3 explains how the permanent loan modification will be calculated. It then provides: If I comply with the requirements in Section 2 and my representations in Section 1 continue to be true in all material respects, the Lender will send me a Modification Agreement for my signature which will modify my Loan Documents as necessary to reflect this new payment amount.... (Id. ¶ 3). C. The Circumstances of the Named Plaintiffs In April 2009, Wells Fargo voluntarily entered into a contract with the Department of the Treasury to participate in HAMP. (See SAC, Ex. 1, Servicer Partic ipation Agreement). The named plaintiffs then sought to participate in the HAMP program. After conducting an NPV analysis and examining plaintiffs’ financial documents, Wells Fargo determined that each of the seven named plaintiffs was eligible to participate in the HAMP program. Each plaintiff signed and returned a TPP to Wells Fargo, and then timely made all three required monthly payments under the terms of their individual TPP. (SAC ¶¶ 54-55 (Bosques); ¶¶ 70-72 (Meek); ¶¶ 86, 89-90 (Williams);" }, { "docid": "20168894", "title": "", "text": "Lender and the Borrower and includes distinctly contractual phrases such as ‘under seal’ and 'time is of the essence.’ ” 2010 WL 4825632, at *1 n. 4. . Montero did not continue making payments beyond the modification effective date in his TPP because a Wells Fargo employee told him that he should not send any additional payments, but instead to wait for his permanent modification agreement to arrive in the mail. (SAC ¶¶ 129-30, 133). . The parties have stipulated that Wells Fargo would not initiate a foreclosure sale on the Ryan and Voltaire and property until after entry of judgment in this action. (SAC ¶ 117). . Defendants also cite cases holding that borrowers may not sue as third-party beneficiaries to a Servicer Participation Agreement contract between Treasury and a mortgage servicer. See, e.g., Hoffman, 2010 WL 2635773, at *3; Escobedo v. Countrywide Home Loans, Inc., 2009 WL 4981618, at *2-3 (S.D.Cal. Dec. 15, 2009). Plaintiffs in this case have not, however, asserted breach of contract claims as third-party beneficiaries. . At times, the TPP speaks in definite language, stating that the servicer \"will” provide borrowers who comply with permanent loan modifications. (SAC, Ex. 7, Bosque TPP). Elsewhere, the TPP seems to anticipate that servicers retain discretion to deny borrowers who comply with their duties a permanent modification. (See id.). Whether, however, the TPP obligates servicers to provide borrowers who are in compliance with a permanent loan modification or merely a decision on a permanent loan modification is an issue better resolved at a later stage of the proceedings. . The declaration of Ben Windust submitted by Wells Fargo suggests a class of between 18 and 2,600 members. Windust testifies that there are approximately 18 borrowers in Massachusetts who received TPPs but have not received a permanent modification or a denial of eligibility. (Windust Decl. ¶ 35). However, there are 2,600 borrowers who were on TPPs but already received a denial of eligibility by Wells Fargo. {Id.. ¶ 38). It is unclear whether the borrowers in this latter group received their denials of eligibility before the modification effective date" }, { "docid": "20328799", "title": "", "text": "68, citing HAMP, Supplemental Directive 09-01, 4/6/2009, at 1 (HAMP SD). Servicers were also required to suspend foreclosure proceedings during the HAMP evaluation process and during any ensuing trial modification period. CAC ¶ 69. A HAMP modification (as envisioned) consists of two stages. In the first, a Participating Servicer accepts applications from borrowers, and, if they meet certain criteria, offers them a TPP. The TPP initiates a three-month period during which the homeowner is to make the modified mortgage payments. If the homeowner successfully completes the TPP, at the second stage of the process, the servicer offers the homeowner a permanent mortgage modification. The goal of the HAMP modification is to give the homeowner-occupant a five-year breathing space in which to reorganize his or her finances and avoid foreclosure. Id. ¶ 70. The first sentence of the form HAMP TPP Agreement states: [i]f I am in compliance with this Trial Period Plan (the “Plan”) and my representations in Section 1 continue to be true in all material respects, then the Servicer will provide me with a Home Affordable Modification Agreement (“Modification Agreement”), as set forth in Section 3, that would amend and supplement (1) the Mortgage on the Property, and (2) the Note secured by the Mortgage. Id. ¶ 74. Section 3 of the form HAMP TPP Agreement iterates: [i]f I comply with the requirements in Section 2 and my representations in Section 1 continue to be true in all material respects, the Servicer will send me a Modification Agreement for my signature which will modify my Loan Documents as necessary to reflect this new payment amount and waive any unpaid late charges accrued to date. Id. ¶ 75. The TPP Agreement requires borrowers to undertake duties that are outside the ordinary covenants of a mortgage. The borrower must agree to undergo credit counseling, submit additional financial information, establish escrow accounts, and divulge details of his or her personal economic circumstances. Id. ¶ 77. . With some minor exceptions, HAMP directs that “[i]f the borrower complies .with the terms and conditions of the Trial Period Plan, the loan modification will" }, { "docid": "16817276", "title": "", "text": "Fargo with proof of income documents upon Plaintiffs request for a loan modification and if Wells Fargo requests additional documents throughout the trial payment period. Based on the parties’ evidence, there is, however, a question of fact regarding Plaintiffs compliance with the TPP’s requirement to submit proof of income documents. According to the June 30, 2010, denial letter, Wells Fargo denied Plaintiff a permanent loan modification because Plaintiff did not provide the documents requested. Because Plaintiffs failure to submit the requested documents is a basis upon which Wells Fargo denied Plaintiff a permanent loan modification, if the documents were submitted as Plaintiff states, she may have been entitled to a permanent loan modification. Thus, Wells Fargo’s denial of the permanent loan modification may be a breach of the TPP. See Williams v. Geithner, No. 09-1959, 2009 WL 3757380, at *3 (D.Minn. Nov. 9, 2009) (finding that “[i]f the borrower remains current throughout the trial period, the servicer must then provide a loan modification”); Wells Fargo v. Meyers, 30 Misc.3d 697, 913 N.Y.S.2d 500, 504 (2010) (finding that homeowners that complied with all requirements of a trial modification plan were entitled to compel specific performance of the modification agreement by Wells Fargo). Accordingly, there is a genuine dispute of fact as to whether a rational juror would find that Plaintiff submitted the requested proof of income documents, in compliance with the terms of the TPP, and whether Wells Fargo breached the TPP. 3. Whether Wells Fargo is obligated to provide Plaintiff a permanent loan modifications if she satisfied all preliminary conditions? Even assuming Plaintiff submitted the requested documents, Defendants argue that the plain terms of the TPP do not obligate Wells Fargo to make a permanent loan modification. Defendants point the Court to Section 2.F of the TPP, which provides: If prior to the Modification Effective Date, (i) the Lender does not provide me a fully executed copy of this Plan and the Modification Agreement; (ii) I have not made the Trial Period payments required under Section 2 of this Plan; or (in) the Lender determines that my representations in Section" }, { "docid": "5275089", "title": "", "text": "then the Lender will provide me with a Loan Modification Agreement, as set forth in Section 3, that would amend and supplement (1) the Mortgage on the Property, and (2) the Note secured by the Mortgage.... I understand that after I sign and return two copies of this Plan to the Lender, the Lender will send me a signed copy of this Plan if I qualify for the Offer or will send me written notice that I do not qualify for the Offer. Paragraph 2F of the TPP alerted the borrower to the obligations of the parties before there could be a permanent modification. It required, in addition to the borrower making the payments and maintaining the accuracy of the representations, that the servicer provide an executed copy of the TPP and Modification Agreement to the borrower. It stated as follows: If prior to the Modification Effective Date, (i) the Lender does not provide me a fully executed copy of this Plan and the Modification Agreement; (ii) I have not made the Trial Period payments required under Section 2 of this Plan; or (iii) the Lender determines that my representations in Section 1 are no longer true and correct, the Loan Documents will not be modified and this Plan will terminate. Paragraph 2G of the TPP stated that no modification would take effect until the borrower received a signed copy of the Modification Agreement. It read as follows: I understand that the Plan is not a modification of the Loan Documents and that the Loan Documents will not be modified unless and until (i) I meet all of the conditions required for modification, (ii) I receive a fully executed Copy of a Modification Agreement, and (iii) the Modification Effective Date has passed.... After Corvello signed and returned the TPP, and despite the notification representation on the first page of the TPP, Wells Fargo, according to the complaint, never told Corvello whether he qualified for a modification. Corvello alleges he complied with the TPP’s terms, and made all three payments on time. Wells Fargo still never offered him a permanent modification," }, { "docid": "22239030", "title": "", "text": "is addressed knows or has reason to know that the person making it does not intend to conclude a bargain until he has made a further manifestation of assent.”), quoting Restatement (Second) of Contracts § 26 (1981). Here the TPP spelled out two conditions precedent to Wells Fargo’s obligation to offer a permanent modification: Wigod had to comply with the requirements of the trial plan, and her financial information had to remain true and accurate. But these were conditions to be satisfied by the promisee (Wigod) rather than conditions requiring further manifestation of assent by the promisor (Wells Fargo). These conditions were therefore consistent with treating the TPP as an offer for permanent modification. Wells Fargo insists that its obligation to modify Wigod’s mortgage was also contingent on its determination, after the trial period began, that she qualified under HAMP guidelines. That theory conflicts with the plain terms of the TPP. At the beginning, when Wigod received the unsigned TPP, she had to furnish Wells Fargo with “documents to permit verification of ... [her] income ... to determine whether [she] qualified] for the offer.” TPP ¶ 2. The TPP then provided: “I understand that after I sign and return two copies of this Plan to the Lender, the Lender will send me a signed copy of this Plan if I qualify for the Offer or will send me written notice that I do not qualify for the offer.” TPP ¶ 2 (emphasis added). Wigod signed two copies of the Plan on May 29, 2009, and returned them along with additional financial documentation to Wells Fargo. Under the terms of the TPP Agreement, then, that moment was Wells Fargo’s opportunity to determine whether Wigod qualified. If she did not, it could have and should have denied her a modification on that basis. Instead, Wells Fargo countersigned on June 4, 2009 and mailed a copy to Wigod with a letter congratulating her on her approval for a trial modification. In so doing, Wells Fargo communicated to Wigod that she qualified for HAMP and would receive a permanent “Loan Modification Agreement” after the" }, { "docid": "20168893", "title": "", "text": "additional incentive payments under HAMP if the borrower stays less than 90 days delinquent on the modified loan. (See Windust Decl. ¶ 8). . The contract that Wells Fargo signed incorporates all guidelines, procedures, and \"supplemental documentation, instructions, bulletins, frequently asked questions, letter, directive, or other communications” issued by Treasury, Fannie Mae, or Freddie Mac regarding servicers’ duties under HAMP. (SAC ¶ 38; Ex. 1). . There are several other eligibility requirements. Among other things, the mortgage loan must be secured by property containing no more than four units, and, depending on the number of units, the guidelines set ceilings on the unpaid principal balance. (See SD 09-01, at 2-3). . SD 09-01 provides, \"If the borrower complies with the terms and conditions of the Trial Period Plan, the loan modification will become effective on the first day of the month following the trial period as specified in the Trial Period Plan.\" (SD 09-01, at 18). . As Judge Stearns noted in Dunnic, the TPP \"characterizes itself as an agreement, contains signature lines for the Lender and the Borrower and includes distinctly contractual phrases such as ‘under seal’ and 'time is of the essence.’ ” 2010 WL 4825632, at *1 n. 4. . Montero did not continue making payments beyond the modification effective date in his TPP because a Wells Fargo employee told him that he should not send any additional payments, but instead to wait for his permanent modification agreement to arrive in the mail. (SAC ¶¶ 129-30, 133). . The parties have stipulated that Wells Fargo would not initiate a foreclosure sale on the Ryan and Voltaire and property until after entry of judgment in this action. (SAC ¶ 117). . Defendants also cite cases holding that borrowers may not sue as third-party beneficiaries to a Servicer Participation Agreement contract between Treasury and a mortgage servicer. See, e.g., Hoffman, 2010 WL 2635773, at *3; Escobedo v. Countrywide Home Loans, Inc., 2009 WL 4981618, at *2-3 (S.D.Cal. Dec. 15, 2009). Plaintiffs in this case have not, however, asserted breach of contract claims as third-party beneficiaries. . At times, the" }, { "docid": "22239017", "title": "", "text": "to modify the loans of those eligible under the program. In exchange, servicers would receive a $1,000 payment for each permanent modification, along with other incentives. The SPAs stated that servicers “shall perform the loan modification ... described in ... the Program guidelines and procedures issued by the Treasury ... and ... any supplemental documentation, instructions, bulletins, letters, directives, or other communications ... issued by the Treasury.” In such supplemental guidelines, Treasury directed servicers to determine each borrower’s eligibility for a modification by following what amounted to a three-step process: First, the borrower had to meet certain threshold requirements, including that the loan originated on or before January 1, 2009; it was secured by the borrower’s primary residence; the mortgage payments were more than 31 percent of the borrower’s monthly income; and, for a one-unit home, the current unpaid principal balance was no greater than $729,750. Second, the servicer calculated a modification using a “waterfall” method, applying enumerated changes in a specified order until the borrower’s monthly mortgage payment ratio dropped “as close as possible to 31 percent.” Third, the servicer applied a Net Present Value (NPV) test to assess whether the modified mortgage’s value to the servicer would be greater than the return on the mortgage if unmodified. The NPV test is “essentially an accounting calculation to determine whether it is more profitable to modify the loan or allow the loan to go into foreclosure.” Williams v. Geithner, No. 09-1959 ADM/JJG, 2009 WL 3757380, at *3 n. 3 (D.Minn. Nov. 9, 2009). If the NPV result was negative — that is, the value of the modified mortgage would be lower than the servicer’s expected return after foreclosure — the servicer was not obliged to offer a modification. If the NPV was positive, however, the Treasury directives said that “the servicer MUST offer the modification.” Supplemental Directive 09-01. B. The Trial Period Plan Where a borrower qualified for a HAMP loan modification, the modification process itself consisted of two stages. After determining a borrower was eligible, the servicer implemented a Trial Period Plan (TPP) under the new loan repayment terms" }, { "docid": "20168891", "title": "", "text": "Massachusetts still face an unwarranted risk of foreclosure by defendant, plaintiffs may re-file their motion for preliminary injunctive relief. V. Conclusion For the foregoing reasons, defendant’s motion to dismiss is DENIED. Plaintiffs’ motion for provisional class certification and preliminary injunction are DENIED without prejudice to their future renewal. Plaintiffs’ motion for expedited discovery is GRANTED, and the Court hereby orders defendant, within 30 days, to produce documents and make available Ben Win-dust for a deposition involving the following three topics: (1) Wells Fargo’s policies regarding foreclosure proceedings on borrowers participating in HAMP, as well as the number of HAMP participants in Massachusetts in danger of or currently being foreclosed upon, (2) the manner in which Wells Fargo determines whether a borrower is eligible for a HAMP modification, and (3) the number and identities of borrowers who received TPP agreements and who are awaiting HAMP eligibility determinations, as well as those borrowers who received written denials of eligibility after the modification effective dates specified in their TPPs. So Ordered. . Section 110 of the statute contains an identical directive for any federal property managers who own or control mortgages and mortgage backed securities. See 12 U.S.C. § 5220(b)(1). It further defines \"modifications” to include \"reduction in interest rates; ... reduction of loan principal; and ... other similar modifications.” Id. § 5220(b)(2). . Section 109(c) of the statute, entitled \"Consent to Reasonable Loan Modification Requests,” provides: Upon any request arising under existing investment contracts, the Secretaiy shall consent, where appropriate, and considering net present value to the taxpayer, to reasonable requests for loss mitigation measures, including term extensions, rate reductions, principal write downs, increases in the proportion of loans within a trust or other structure allowed to be modified, or removal of other limitation on modification. 12 U.S.C. § 5219(c). . The Department of the Treasury created the Making Home Affordable Program jointly with the Federal Housing Finance Agency, the Federal National Mortgage Association (\"Fannie Mae”), and the Federal Home Loan Mortgage Corporation (\"Freddie Mac”). See Williams v. Geithner, 2009 WL 3757380, at *2 (D.Minn. Nov. 9, 2009). . Wells Fargo receives" }, { "docid": "16817275", "title": "", "text": "borrower was reviewed for Hamp and never turned in requested docs [and] then never sent in requested docs after that to restart a new review.” Both entries purportedly establish that a representative of Wells Fargo contacted Plaintiff on the above dates for updated proof of income documents, which were not received. As a result, the permanent loan modification was denied and Wells Fargo proceeded to foreclosure. The second exhibit is a letter that Sandy Johnson, Executive Mortgage Specialist for Wells Fargo, sent to Plaintiffs counsel in response to a complaint filed with the Office of the Comptroller of the Currency regarding Plaintiffs loan modification. According to the letter, “Wells Fargo ... made three call attempts to request the documentation from [Plaintiff] on July 14, 2010, July 17, 2010, and July 20, 2010, of which messages were left advising [Plaintiff] to contact [Wells Fargo]. As [Plaintiff] did not provide us with the necessary documentation as requested, we were unable to approve HAMP for the loan.” Neither party disputes that the TPP requires Plaintiff to provide Wells Fargo with proof of income documents upon Plaintiffs request for a loan modification and if Wells Fargo requests additional documents throughout the trial payment period. Based on the parties’ evidence, there is, however, a question of fact regarding Plaintiffs compliance with the TPP’s requirement to submit proof of income documents. According to the June 30, 2010, denial letter, Wells Fargo denied Plaintiff a permanent loan modification because Plaintiff did not provide the documents requested. Because Plaintiffs failure to submit the requested documents is a basis upon which Wells Fargo denied Plaintiff a permanent loan modification, if the documents were submitted as Plaintiff states, she may have been entitled to a permanent loan modification. Thus, Wells Fargo’s denial of the permanent loan modification may be a breach of the TPP. See Williams v. Geithner, No. 09-1959, 2009 WL 3757380, at *3 (D.Minn. Nov. 9, 2009) (finding that “[i]f the borrower remains current throughout the trial period, the servicer must then provide a loan modification”); Wells Fargo v. Meyers, 30 Misc.3d 697, 913 N.Y.S.2d 500, 504 (2010)" }, { "docid": "11254442", "title": "", "text": "did so, and once the loan was 60 days delinquent, filled out a hardship packet as requested by Plaintiff. (Id.) In June of 2009, Defendants were informed via telephone that they had been accepted into the TPP program and that if they made three on time payments in the modified amount, their modification would become permanent. (Id.) Defendants executed the TPP Agreement and returned it to Plaintiff. (Id.) The cover letter enclosing Defendants’ TPP states 'that homeowners “may qualify” for HAMP, cautions that they “may not qualify for this loan modification program,” invites homeowners to “see if [they] qualify,” mentions the possibility that homeowners “don’t qualify,” discusses events that will take place “if [Plaintiff is] able to modify” their loan, and makes clear to Defendants that Plaintiff would modify their loan only “[i]f [they] qualify under [HAMP] and comply with the terms of the [TPP].” (Doc. 9-2 at 33-36). Likewise, the TPP Agreement itself provides that it is “not a modification of the Loan Documents,” that “all terms and provisions of the Loan Documents remain in full force and effect,” that the TPP Agreement should not “be understood or construed to be a satisfaction or release in whole or in part of the obligations contained in the Loan Documents,” and that the TPP Agreement would not “take effect unless and until both [Defendants and Plaintiff] sign it and [Plaintiff] provides [Defendants] with a copy of this Plan with [Plaintiffs] signature.” {Id. at 30-32). The TPP Agreement also states: If I am in compliance with this Loan Trial Period and my representations in Section 1 continue to be true in all material respects, then the lender will provide me with a Loan Modification Agreement, as set forth in Section 3 [below], that would amend and supplement (1) the Mortgage on the Property, and (2) the Note secured by the Mortgage. {Id. at 30). In July of 2009, Defendants were forced to file for bankruptcy but continued to make TPP payments on their mortgage. (Doc. 28 at 8). Shortly thereafter, Plaintiff moved to have the stay lifted on the bankruptcy to allow" }, { "docid": "11735094", "title": "", "text": "... encourage the servicers of the underlying mortgages” to minimize foreclosures. Id. § 109; 12 U.S.C. § 5219(a)(1). To effectuate these goals, the Secretary was given the power to “use loan guarantees and credit enhancements to facilitate loan modifications to prevent avoidable foreclosures.” Id. Pursuant to this authority, the Secretary created an array of programs designed to identify likely candidates for loan modifications and encourage lenders to renegotiate their mortgages. HAMP is one of these programs. HAMP urges banks and loan servicers to offer loan modifications to eligible borrowers with the goal of “reducing [their] mortgage payments to sustainable levels, without discharging any of the underlying debt.” Bosque v. Wells Fargo Bank, N.A., 762 F.Supp.2d 342, 347 (D.Mass.2011); see generally Jean Braucher, Humpty Dumpty and the Foreclosure Crisis: Lessons from the Lackluster First Year of the Home Ajfordable Modification Program, 52 Ariz. L. Rev. 727, 748-53 (2010) (providing background on HAMP’s features). The Secretary, through Fannie Mae, entered into agreements with numerous home loan servicers, including Wells Far go, pursuant to which the servicers “agreed to identify homeowners who were in default or would likely soon be in default on their mortgage payments, and to modify the loans of those eligible under the program.” Wigod v. Wells Fargo Bank, N.A., 673 F.3d 547, 556 (7th Cir.2012). The servicers are to conduct an initial evaluation of a particular homeowner’s eligibility for a loan modification using a set of guidelines promulgated by the Treasury Department. Id. If the borrower meets those criteria, “the guidelines direct the servicer to offer that individual a Trial Period Plan (‘TPP’)” as a precursor to obtaining a permanent modification. Markle v. HSBC Mortg. Corp. (USA), 844 F.Supp.2d 172, 177 (D.Mass.2011). If the borrower complies with the TPP’s terms, including making required monthly payments, providing the necessary supporting documentation, and maintaining eligibility, the guidelines state that the servicer should offer the borrower a permanent loan modification. See Wigod, 673 F.3d at 557; see also Markle, 844 F.Supp.2d at 177 (“The standard-form TPP represents to borrowers that they will obtain a permanent modification at the end of the trial" }, { "docid": "22239021", "title": "", "text": "a TPP Agreement. The TPP stated: “I understand that after I sign and return two copies of this Plan to the Lender, the Lender will send me a signed copy of this Plan if I qualify for the [permanent modification] Offer or will send me written notice that I do not qualify for the Offer.” TPP ¶ 2. On May 28, 2009, Wigod signed two copies of the TPP Agreement and returned them to the bank, along with additional documents and the first of four modified trial period payments. Wells Fargo then executed the TPP Agreement and sent a copy to Wigod in early June 2009. The trial term ran from July 1, 2009 to November 1, 2009. The TPP Agreement provided: “If I am in compliance with this Loan Trial Period and my representations in Section 1 continue to be true in all material respects, then the Lender will provide me with a [permanent] Loan Modification Agreement.” TPP ¶ 1. Wigod timely made, and Wells Fargo accepted, all four payments due under the trial plan. On the pleadings, we must assume that she complied with all other obligations under the TPP Agreement. Nevertheless, Wells Fargo declined to offer Wigod a permanent HAMP modification, informing her only that it was “unable to get you to a modified payment amount that you could afford per the investor guidelines on your mortgage.” After the expiration of the TPP, Wells Fargo warned Wigod that she owed the outstanding balance and late fees and, in a subsequent letter, that she was in default on her home mortgage loan. Over the next few months, Wigod protested Wells Fargo’s decision in a number of telephone conversations, but to no avail. During that time, she continued to make mortgage payments in the reduced amount due under the TPP, even after the trial term ended on November 1, 2009. In the meantime, Wells Fargo sent Wigod monthly notices threatening to foreclose if she failed to pay the accumulating amount of delinquency based on the original loan terms. According to Wigod, Wells Fargo improperly re-evaluated her for HAMP after" }, { "docid": "5275087", "title": "", "text": "the HAMP program, the servi-cer must not only alert the borrower, but must consider alternatives. The servicer should “promptly communicate that [ineligibility] determination to the borrower in writing and consider the borrower for another foreclosure prevention alternative.” Id. For borrowers who have made all their payments and whose representations remain accurate, the servicer must offer a permanent home loan modification. Id. Wells Fargo never offered plaintiffs Phillip Corvello and Karen and Jeffrey Lucia a modification. They filed separate actions against Wells Fargo, and their cases were consolidated. Their situations differ factually in that Corvello’s dealings with Wells Fargo were in writing, while the Lucias dealt with the bank by phone. They both contend that they reached agreements with Wells Fargo whereby Wells Fargo was required to offer them permanent mortgage modifications if they complied with the requirements of their trial plans, including proving their eligibility for the permanent modification and making the trial payments. If they did not qualify for the modification, their agreements required Wells Fargo to alert them immediately and end the period of trial payments. They allege that they complied with their trial plans and made the required payments, and should have been offered permanent modifications. The district court dismissed both actions under Rule 12(b)(6), so we accept the allegations of the complaints as true. Kahle v. Gonzales, 487 F.3d 697, 699 (9th Cir. 2007). • According to Corvello’s complaint, he provided Wells Fargo with his financial information via a financial worksheet in June of 2009. ■ Wells Fargo then sent him a TPP. The TPP stated in the first line that if Corvello’s representations were accurate and he complied with the terms of the trial plan, he would receive a modification offer. - The TPP also, and on the same page, assured him, as it was required to do by the applicable Treasury Directive, that the bank would tell him one way or another on his eligibility for a modification. It read: If I am in compliance with this Loan Trial Period and my representations in Section 1 continue to be true in all material respects," } ]

[ { "docid": "22558629", "title": "", "text": "incapacitated to be eligible for benefits, see, e.g., Howard v. Heckler, 782 F.2d 1484, 1488 (9th Cir.1986) (claim of pain-induced disability not gainsaid by capacity to engage in, periodic restricted travel); Gallant, 753 F.2d at 1453 (ordering award of benefits for constant back and leg pain despite claimant’s ability to cook meals and wash dishes), and many home activities are not easily transferable to what may be the more grueling environment of the workplace, where it might be impossible to periodically rest or take medication. Yet if a claimant is able to spend a substantial part of his day engaged in pursuits involving the performance of physical functions that are transferable to a work setting, a specific finding as to this fact may be sufficient to discredit an allegation of disabling excess pain. Another such form of evidence is an unexplained, or inadequately explained, failure to seek treatment or follow a prescribed course of treatment. While there are any number of good reasons for not doing so, see, e.g., 20 C.F.R. § 404.1530(c) (1988); Gallant, 753 F.2d at 1455, a claimant’s failure to assert one, or a finding by the AU that the profferred reason is not believable, can cast doubt on the sincerity of the claimant’s pain testimony. While other sorts of evidence may also be capable of rebutting excess pain testimony, they are of no consequence here, because the AU determined that the two forms of evidence discussed above were inconsistent with Fair’s allegations of disabling pain. In re Fair, No. [ XXX-XX-XXXX ] (Mar. 28, 1986), at 3, 5, 7, 8. The ALJ made specific findings as to the following: —Although Fair alleged “persistent and increasingly severe” pain and discomfort over a period of many years, “he denied having received more than rather minimal conservative treatment for his various complaints.” Id. at 3. —Fair “last received physical therapy for his back complaints approximately two years ago and has not been hospitalized for evaluation or treatment of any of his alleged symptoms since 1982, when he was hospitalized overnight for a myelogram.” Id. —Fair’s treating physician “testified that" } ]

[ { "docid": "23242539", "title": "", "text": "claimant’s subjective allegation of pain. Murray v. Heckler, 722 F.2d 499, 502 (9th Cir.1983). The AU made the following findings regarding Miller’s allegation of pain: The level of pain suffered by the claimant is not severe nor is it incapacitating as indicated by the lack of any significant objective findings in the medical evidence; it is noted that there is no evidence of any significant loss of range in the spine, arms, or legs, nor is there any evidence of any related muscle spasm or fasiculations in these areas. In light of Dr. Dhalla’s report, which found no significant limitations due to pain, the AU’s findings are supported by substantial evidence. Miller argues, however, that the AU erred by failing to give adequate weight to the opinion of his treating physician, Dr. Silver, who asserted that Miller was totally disabled by pain. We disagree. In Murray, we adopted the rule that a treating physician’s opinion can be disregarded only if the AU makes “findings setting forth specific, legitimate reasons for doing so that are based on substantial evidence in the record.” 722 F.2d at 502. In Murray, the AU had accepted the conclusion of a nontreating physician even though three treating physicians had reached the opposite conclusion based on identical clinical findings. Id. at 501. In Allen v. Heckler, 749 F.2d 577, 579 (9th Cir.1984) (as amended on denial of rehearing, February 20, 1985), we held that Murray was inapplicable when the nontreating physician relies on independent clinical findings that differ from the findings of the treating physician. In this case, Dr. Silver made no findings. Because Dr. Dhalla’s conclusions are based on independent clinical findings, Murray is inapplicable. See Allen, 749 F.2d at 579 (“[T]o the extent that [the nontreating physician’s] opinion rests on objective clinical tests, it must be viewed as substantial evidence that [the claimant] is no longer disabled,”). D. Narcotics Use The AU made the following findings regarding Miller’s use of prescription narcotics: There is no evidence of any significant mental impairment since the claimant’s extensive use of medication does not appear to have affected his" }, { "docid": "22064063", "title": "", "text": "district court’s decision upholding the Commissioner’s denial of benefits. Harman v. Apfel, 211 F.3d 1172, 1174 (9th Cir.2000). We must affirm the Commissioner’s decision if it is supported by substantial evidence and if the Commissioner applied the correct legal standards. Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir.1999). Evidence can be “substantial” if it is more than a scintilla, even though less than a preponderance. Id. at 1098. If the evidence can support either outcome, we may not substitute our judgment for that of the ALJ. Id. However, we cannot affirm the Commissioner’s decision “simply by isolating a specific quantum of supporting evidence.” Id. (internal quotation marks and citation omitted). Instead, we must consider the record as a whole, “weighing both evidence that supports and evidence that detracts” from the Commissioner’s conclusion. Id. (internal quotation marks and citation omitted). DISCUSSION A. Opinion Evidence Title II’s implementing regulations distinguish among the opinions of three types of physicians: “(1) those who treat the claimant (treating physicians); (2) those who examine but do not treat the claimant (examining physicians); and (3) those who neither examine nor treat the claimant [but who review the claimant’s file] (non-examining [or reviewing] physicians).” Lester v. Chater, 81 F.3d 821, 830 (9th Cir.1995); see 20 C.F.R. § 404.1527(d). Generally, a treating physician’s opinion carries more weight than an examining physician’s, and an examining, physician’s opinion carnes more weight than a reviewing physician’s. Lester, 81 F.3d at 830; 20 C.F.R. § 404.1527(d). In addition, the regulations give more weight to opinions that are explained than to those that are not, see 20 C.F.R. § 404.1527(d)(3), and to the opinions of specialists concerning matters relating to their specialty over that of nonspecialists, see id. § 404.1527(d)(5). In disability benefits cases, physicians typically provide two types of opinions: medical opinions that speak to the nature and extent of a claimant’s limitations, and opinions concerning the ultimate issue of disability, i.e., opinions about whether a claimant is capable of any work, given her or his limitations. Under the regulations, if a treating physician’s medical opinion is supported by medically acceptable diagnostic" }, { "docid": "22997644", "title": "", "text": "to terminate Allen’s benefits rested on Dr. Schostal’s opinion that Allen did not have “clearcut symptoms of Meniere’s Disease” and was not precluded from some sort of sedentary employment. Dr. Wilson, of course, felt otherwise. Thus, there was a conflict in the medical reports and testimony. In such a situation, the findings of the AU are supported by substantial evidence. See Allen, 726 F.2d at 1473; Galli v. Celebrezze, 339 F.2d 924, 925 (9th Cir.1964); see also Rhinehart v. Finch, 438 F.2d 920, 921 (9th Cir.1971) (“Where there is conflicting evidence sufficient to support either outcome, we must affirm the decision actually made.”). Our decision in Murray v. Heckler, 722 F.2d 499 (9th Cir.1983), does not require a different outcome. In Murray, the ALJ, in deciding to terminate the claimant’s benefits, relied on the opinion of a physician who examined the claimant only once; the AU rejected the contrary opinions of two treating physicians. Id. at 501. The court concluded that the ALJ’s decision did not rest on substantial evidence, noting that “[i]f the ALJ wishes to disregard the opinion of the treating physician, he or she must make findings setting forth specific, legitimate reasons for doing so that are based on substantial evidence in the record.” Id. at 502. Murray and the present case are distinguishable. There, “the findings of the non-treating physician were the same as those of the treating physician. It was his conclusions that differed.” Id. at 501. Here, instead of a conclusory “diagnosis” consisting of “check marks in boxes on a form supplied by the Secretary,” id., Dr. Schostal’s findings rested on his own neurological examination of Allen. Both Dr. Schostal's findings — that Allen no longer exhibited “clear-cut symptoms of Meniere’s Disease” but that “he may indeed be significantly impaired due to his previous left vestibular nerve ablation” — and his ultimate conclusion — that while Allen was unable to return to his previous occupation, he was capable of performing sedentary work — differed from those of Dr. Wilson. Moreover, to the extent that Dr. Schostal’s opinion rests on objective clinical tests, it must" }, { "docid": "22221785", "title": "", "text": "Ryan’s anxiety was improving, by September 25, 2001 — the last time her notes diagnose a mental disorder — Dr. Moni-gatti-Lake diagnosed \"chronic depression and anxiety. ” . Moreover, Dr. Randhawa explicitly took account of Dr. Monigatti-Lake’s treatment history in making his diagnosis, noting that Ryan’s extreme anxiety and depression continued, \"despite the treatment she receives from her primary care physician.” . The dissent's observation that the majority \"turns our Social Security jurisprudence on its head,” is premised on its belief that the treating physician’s clinical finding and the findings of the examining physicians and their conclusions are at odds — i.e., that the treating physician does not find Ryan disabled while the examining physicians do. Dissent at 7054. This is simply not true. We agree, of course, with the dissent's observation that a treating physician’s opinion is generally accorded more weight than the opinion of an examining or non-examining physician. Lester, 81 F.3d at 830. But that principle does not empower an ALJ to manufacture a conflict between a treating and examining physician, and then use the purported inconsistency to discredit the examining physician’s opinion. As the dissent acknowledges, Dr. Monigatti-Lake never explicitly opined on the ultimate question of disability. Dissent at 7051. Nor is there anything in the record, contrary to the dissent's suggestion, to indicate that Dr. Monigatti-Lake expressed an opinion that Ryan was capable of maintaining a regular work schedule. Id. Dr. Monigatti-Lake did, however, repeatedly express an opinion that Ryan was suffering from depression and anxiety, and on that issue her opinion is consistent with the opinion of Dr. Randhawa. These are Dr. Monigatti-Lake's clinical notes. She was never asked or expected in those notes to opine on disability- RAWLINSON, Circuit Judge, dissenting: I respectfully dissent because, in my view, substantial evidence supports the decision of the Administrative Law Judge (ALJ). Unlike the majority, I am persuaded that the ALJ gave proper weight to the opinions of all medical providers. For purpose of this appeal, Social Security claimant Karen Ryan (Ryan) began visiting her treating physician, Dr. Moni-gatti-Lake regarding “her situation at work” on October" }, { "docid": "22997645", "title": "", "text": "wishes to disregard the opinion of the treating physician, he or she must make findings setting forth specific, legitimate reasons for doing so that are based on substantial evidence in the record.” Id. at 502. Murray and the present case are distinguishable. There, “the findings of the non-treating physician were the same as those of the treating physician. It was his conclusions that differed.” Id. at 501. Here, instead of a conclusory “diagnosis” consisting of “check marks in boxes on a form supplied by the Secretary,” id., Dr. Schostal’s findings rested on his own neurological examination of Allen. Both Dr. Schostal's findings — that Allen no longer exhibited “clear-cut symptoms of Meniere’s Disease” but that “he may indeed be significantly impaired due to his previous left vestibular nerve ablation” — and his ultimate conclusion — that while Allen was unable to return to his previous occupation, he was capable of performing sedentary work — differed from those of Dr. Wilson. Moreover, to the extent that Dr. Schostal’s opinion rests on objective clinical tests, it must be viewed as substantial evidence that Allen is no longer disabled. See Perez v. Secretary of Health, Education & Welfare, 622 F.2d 1, 2 (1st Cir.1980) (report of internist designated by the Secretary constituted substantial evidence, even though contradicted by testimony of the claimant’s treating physicians); see also Mongeur v. Heckler, 722 F.2d 1033, 1039 (2d Cir.1983) (“It is an accepted principle that the opinion of a treating physician is not binding if it is contradicted by substantial evidence, ... and the report of a consultative physician may constitute such evidence.”) (citation omitted). To read Murray more broadly as an absolute requirement that the AU must state “clear and convincing reasons” in all situations in which he favors the testimony of a consultative physician over that of the claimant's treating physicians would be contrary to the spirit of the principles expounded by the Supreme Court in Richardson v. Perales, 402 U.S. 389, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971). The Court decided that, despite their hearsay character, written reports, including reports submitted by consultative physicians" }, { "docid": "22221792", "title": "", "text": "a history of anxiety disorder and major depression. Ryan’s final examination was done by Dr. Crisp, a physician with the Nevada County Behavioral Health Department. Ryan reported that she could relax at home but got anxious when she went out. Taking Ryan’s report at face value, Dr. Crisp diagnosed her with major depression with agoraphobia and anxiety. Ignoring the lack of a finding of disability by any of the medical providers, the majority opinion discounts the substantial evidence supporting the Administrative Law Judge’s (ALJ) denial of benefits. The majority opinion rests on the ALJ’s rejection of Dr. Randhawa’s observation that Ryan “would have difficulty maintaining regular attendance in the workplace due to anxiety and depression and due to interruptions from her psychiatric eondi-tions[,]” and on the ALJ’s discounting of Dr. Crisp’s diagnosis of agoraphobia. See Majority Opinion at pages 1198-1202. In reviewing this matter, it is important to clarify the standard of review. In Social Security cases, we employ a hierarchy of deference to medical opinions depending on the nature of the services provided. We “distinguish among the opinions of three types of physicians: (1) those who treat the claimant (treating physicians); those who examine but do not treat the claimant (examining physicians); and those who neither examine nor treat the claimant (nonexamining physicians).” Lester v. Chater, 81 F.3d 821, 830 (9th Cir.1996) (footnote reference omitted). A treating physician’s opinion is entitled to more weight than an examining physician’s opinion, and an examining physician’s opinion is entitled to more weight than a non-examining physician’s opinion. See id. As applied to this ease, Dr. Monigatti-Lake’s opinion was entitled to the most weight due to her status as treating physician. Acceptance of Dr. Monigatti-Lake’s opinion over that of Drs. Randhawa and Crisp, examining physicians, would be entirely consistent with our governing precedent. See Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir.2002) (noting the deference given to a treating physician’s opinion). Indeed, crediting the opinions of Drs. Randhawa and Crisp over that of Dr. Monigatti-Lake absent “specific and legitimate reasons supported by substantial evidence in the record” would directly contravene our precedent." }, { "docid": "22660352", "title": "", "text": "disabled. 20 C.F.R. § 1526(a); Sprague, 812 F.2d at 1231. The Commissioner erred as a matter of law in isolating the effects of Lester’s physical impairment from the effects of his mental impairment. Instead, she should have considered the combined effect of the claimant’s physical and mental impairments in determining whether the functional criteria listed in paragraph B were satisfied. IV. If this were the only error committed by the Commissioner, we would be required to remand for consideration of whether the claimant’s physical and mental impairments in combination satisfy the paragraph B criteria. However, Lester also challenges the Commissioner’s decision to reject the opinions of his treating physician Dr. Kho and his examining psychologist Dr. Taylor. Both doctors provided written reports stating that the claimant is markedly limited in several areas of functioning and has been since 1982. The ALJ’s primary reason for rejecting their opinions was that they conflicted with the testimony of a nonexamining medical advisor. In so doing, the ALJ committed an error of law. A. Cases in this circuit distinguish among the opinions of three types of physicians: (1) those who treat the claimant (treating physicians); (2) those who examine but do not treat the claimant (examining physicians); and (3) those who neither examine nor treat the claimant (nonexamining physicians). As a general rule, more weight should be given to the opinion of a treating source than to the opinion of doctors who do not treat the claimant. Winans v. Bowen, 853 F.2d 643, 647 (9th Cir.1987). At least where the treating doctor’s opinion is not contradicted by another doctor, it may be rejected only for “clear and convincing” reasons. Baxter v. Sullivan, 928 F.2d 1391, 1396 (9th Cir.1991). We have also held that “clear and convincing” reasons are required to reject the treating doctor’s ultimate conclusions. Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir.1988). Even if the treating doctor’s opinion is contradicted by another doctor, the Commissioner may not reject this opinion without providing “specific and legitimate reasons” supported by substantial evidence in the record for so doing. Murray v. Heckler, 722 F.2d" }, { "docid": "22649314", "title": "", "text": "treating doctors should be given more weight than the opinions of doctors who do not treat the claimant. Lester, 81 F.3d at 830. Where the treating doctor’s opinion is not contradicted by another doctor, it may be rejected only for “clear and convincing” reasons supported by substantial evidence in the record. Id. (internal quotation marks omitted). Even if the treating doctor’s opinion is contradicted by another doctor, the ALJ may not reject this opinion without providing “specific and legitimate reasons” supported by substantial evidence in the record. Id. at 830, quoting Murray v. Heckler, 722 F.2d 499, 502 (9th Cir.1983). This can be done by setting out a detailed and thorough summary of the facts and conflicting clinical evidence, stating his interpretation thereof, and making findings. Magallanes, 881 F.2d at 751. The ALJ must do more than offer his conclusions. He must set forth his own interpretations and explain why they, rather than the doctors’, are correct. Embrey v. Bowen, 849 F.2d 418, 421-22 (9th Cir.1988). In disability benefits cases such as this, physicians may render medical, clinical opinions, or they may render opinions on the ultimate issue of disability—the claimant’s ability to perform work. As we stated in Matthews v. Shalala, 10 F.3d 678 (9th Cir.1993), “ ‘[t]he administrative law judge is not bound by the uncontroverted opinions of the claimant’s physicians on the ultimate issue of disability, but he cannot reject them without presenting clear and convincing reasons for doing so.’” Id. at 680 (quoting Montijo v. Secretary of Health & Human Servs., 729 F.2d 599, 601 (9th Cir.1984)). See also Lester, 81 F.3d at 830; Embrey, 849 F.2d at 422. A treating physician’s opinion on disability, even if controverted, can be rejected only with specific and legitimate reasons supported by substantial evidence in the record. Lester, 81 F.3d at 830. In sum, reasons for rejecting a treating doctor’s credible opinion on disability are comparable to those required for rejecting a treating doctor’s medical opinion. In the present case, the ALJ, writing in the third person, provided the following rationale for rejecting the opinions of Dr. Jacobson and" }, { "docid": "22325394", "title": "", "text": "routinized, overlearned tasks with low cognitive demand” is neither a diagnosis nor statement of Valentine’s functional capacity. It is rather a recommended way for Valentine to cope with his PTSD symptoms. The ALJ therefore did not err by excluding it from the RFC. In sum, we cannot say that the ALJ ignored evidence of Valentine’s impairments when she fashioned his RFC. B Valentine also argues that the ALJ improperly rejected other evidence regarding the extent of his ailments: Dr. Van Male’s testimony, his own testimony, and his wife’s testimony. Our Social Security precedents have developed a highly articulated set of standards for reviewing an ALJ’s decision to reject different types of testimony. We take each piece of testimony separately, as each invokes a different standard. 1 There are three types of medical opinions in social security cases: those from treating physicians, examining physicians, and non-examining physicians. Lester v. Chater, 81 F.3d 821, 830 (9th Cir.1995). Where a treating or examining physician’s opinion is contradicted by another doctor, the “[Commissioner] must determine credibility and resolve the conflict.” Thomas v. Barnhart, 278 F.3d 947, 956-57 (9th Cir.2002) (internal quotation marks omitted). However, to reject the opinion of a treating physician “in favor of a conflicting opinion of an examining physician[,]” an ALJ still must “make[ ] findings setting forth specific, legitimate reasons for doing so that are based on substantial evidence in the record.” Id. at 957 (internal quotation marks omitted). Valentine objects to the ALJ’s rejection of the opinion of Dr. Van Male, who was Valentine’s treating psychologist. The ALJ gave more weight to Dr. Storzbach’s neuropsychological evaluation, as well as to the functional capacity evaluation of Dr. LeBray. Indeed, as we explain above, supra at 690-92, the RFC clearly reflects the influence of Drs. Storzbach and LeBray, who both concluded that Valentine had various moderate limitations. Furnished with the contradictory opinion of an examining psychologist (Dr. Storzbach), the ALJ must have provided “specific and legitimate reasons that are supported by substantial evidence in the record,” for rejecting Dr. Van Male’s opinion. Lester, 81 F.3d at 830. We believe the ALJ" }, { "docid": "22763243", "title": "", "text": "medical record. Benton v. Barnhart, 331 F.3d 1030, 1040 (9th Cir.2003). Those physicians with the most significant clinical relationship with the claimant are generally entitled to more weight than those physicians with lesser relationships. Lester, 81 F.3d at 830; 20 C.F.R. §§ 404.1527(d), 416.927(d). As such, the ALJ may only reject a treating or examining physician’s uncon-tradicted medical opinion based on “clear and convincing reasons.” Lester, 81 F.3d at 830-31. Where such an opinion is contradicted, however, it may be rejected for “specific and legitimate reasons that are supported by substantial evidence in the record.” Id. Here, Carmickle asserts the ALJ erred in rejecting medical evidence from Dr. Patton, Dr. Kane, Dr. Horowitz, and Dr. Nilaver. 1 Carmickle argues the ALJ erred by failing to include all of the limitations identified by Dr. Patton, a treating physician, in assessing Carmickle’s RFC. Dr. Patton submitted three RFC reports. Though largely consistent, there are some variations among the reports. The record also includes contradictory opinions from reviewing physicians. In resolving these conflicts, the ALJ gave Carmickle “the benefit of the doubt” and assigned great weight to Dr. Patton’s second report, dated November 2002, because the ME who testified at the hearing stated that this report included “generous” limitations. The ALJ also rejected some of the new limitations identified in Dr. Patton’s third report, dated November 2003, because they were based on a recent tendonitis diagnosis that “is not expected to result in any significant work-related functional limitation for any 12-month period.” The ALJ is required to consider all of the limitations imposed by the claimant’s impairments, even those that are not severe. Social Security Ruling (“SSR”) 96-8p (1996). Even though a non-severe “impairment ] standing alone may not significantly limit an individual’s ability to do basic work activities, it may — when considered with limitations or restrictions due to other impairments — be critical to the outcome of a claim.” Id. Dr. Patton opined that Carmickle’s tendonitis significantly limits his ability to perform rotary movement. The ALJ erred in not including this limitation in his assessment of Carmickle’s RFC. Carmickle also argues" }, { "docid": "22064064", "title": "", "text": "(examining physicians); and (3) those who neither examine nor treat the claimant [but who review the claimant’s file] (non-examining [or reviewing] physicians).” Lester v. Chater, 81 F.3d 821, 830 (9th Cir.1995); see 20 C.F.R. § 404.1527(d). Generally, a treating physician’s opinion carries more weight than an examining physician’s, and an examining, physician’s opinion carnes more weight than a reviewing physician’s. Lester, 81 F.3d at 830; 20 C.F.R. § 404.1527(d). In addition, the regulations give more weight to opinions that are explained than to those that are not, see 20 C.F.R. § 404.1527(d)(3), and to the opinions of specialists concerning matters relating to their specialty over that of nonspecialists, see id. § 404.1527(d)(5). In disability benefits cases, physicians typically provide two types of opinions: medical opinions that speak to the nature and extent of a claimant’s limitations, and opinions concerning the ultimate issue of disability, i.e., opinions about whether a claimant is capable of any work, given her or his limitations. Under the regulations, if a treating physician’s medical opinion is supported by medically acceptable diagnostic techniques and is not inconsistent with other substantial evidence in the record, the treating physician’s opinion is given controlling weight. 20 C.F.R. § 404.1527(d)(2); see also Social Security Ruling (SSR)- 96-2P. An ALJ may reject the uncontradicted medical opinion of a treating physician only for “clear and convincing” reasons supported by substantial evidence in the record. Reddick v. Chater, 157 F.3d 715, 725 (9th Cir.1998) (internal quotation marks and citation omitted). If the treating physician’s medical opinion is inconsistent with other substantial evidence in the record, “[treating source medical opinions are still entitled to deference and must be weighted using all the factors provided in 20 CFR [§ ]404.1527.” SSR 96-2p; see id. (“Adjudicators must remember that a finding that a treating source medical opinion is ... inconsistent with the other substantial evidence in the case record means only that the opinion is not entitled to ‘controlling weight,’ not that the opinion should be rejected.... In many cases, a treating source’s medical opinion will be entitled to the greatest weight and should be adopted, even" }, { "docid": "14255145", "title": "", "text": "of the AU’s decision in this case which can reasonably be interpreted as pertaining to the treating physician rule states as follows: [A] preponderance of the evidence establishes that the claimant has minimal osteoarthritis of the hands, knees and lum-bosacral spine. The undersigned Administrative Law Judge considered the physical assessment of Dr. Petersen-Baez of Hunts Points Multi-Service Center but notes that such assessment is not consistent with the findings noted in the records from that center. The undersigned therefore concludes that the physical assessment is not compatible with a preponderance of the evidence and concludes that the claimant retains the ability to perform a substantial amount of walking and standing and is able to use her hands for grasping and manipulating. See Administrative Record (“AR”) at 17. Although the AU agreed with the treating physician that plaintiff has hypertension, osteoarthritis and asthma, the AU concluded that plaintiff has sufficient residual functional capacity to continue to perform her past work. AR at 18. The AU was required to accord “ ‘some extra weight’ to the professional opinion of the treating physician,” and could reject that opinion only if he “concluded that substantial evidence contradicted” it. Johnson, 817 F.2d at 986 (citation omitted). In this case, the AU examined parts of the record other than the report of the treating physician, Dr. F. Petersen-Baez, and found, by a preponderance of the evidence, that plaintiff has only “minimal osteoarthritis_” AR at 17. The AU then “considered” the treating physician’s opinion, but termed it inconsistent with certain findings in the medical records before him. Id. The AU concluded that the treating physician’s opinion was “not compatible with a preponderance of the evidence” and thus rejected it. Id. In this case, the treating physician has examined plaintiff at least monthly since June 1, 1971. AR at 236. Yet the AU failed, as required, to provide “specific, legitimate reasons” for rejecting his opinion. See Byron v. Heckler, 742 F.2d 1232, 1235 (10th Cir.1984); Murray v. Heckler, 722 F.2d 499, 502 (9th Cir.1983). The AU merely stated that the treating physician’s assessment was “not consist ent” with" }, { "docid": "23098997", "title": "", "text": "not achieve the level of specificity our prior cases have required, even when the objective factors are listed seriatim. The ALJ must do more than offer his own conclusions. He must set forth his own interpretations and explain why they, rather than the doctors’, are correct. 849 F.2d at 421-22. Here, the ALJ asserted that Dr. Man-field’s conclusions were inconsistent with Re-gennitter’s “benign Mental Status Exam.” However, neither psychologist characterized the results of Regennitter’s MSEs as benign. Dr. Sacks found Regennitter to be tearful and sad, with a monotone and hypophonic voice and psychomotor retardation. Dr. Manfield noted Regennitter’s blunted affect and uncontrolled .crying. The ALJ also asserted that Dr. Manfield’s diagnoses are “discounted by [his] failure to refer [Regennitter] for hospitalization or treatment.” This assertion ignores the well-established distinction between an examining and a treating doctor. See, e.g., Lester, 81 F.3d at 830 (“Cases in this circuit distinguish among the opinions of three types of physicians: (1) those who treat the claimant (treating physicians); (2) those who examine but do not treat the claimant (examining physicians); and (3) those who neither examine nor treat the claimant (nonexamin-ing physicians).”); 20 C.F.R. § 404.1527 (defining medical opinions and prescribing the respective weight to be given the opinions of treating sources and examining sources). Like the doctors who examined Regennitter at the Commissioner’s request, Dr. Manfield was neither asked, nor paid, to provide treatment for Regennitter, but rather to give an objective opinion about his medical condition. Nor is Regennitter’s failure, because of his poverty, to seek “treatment by any mental professional” a valid reason for the ALJ to reject Dr. Manfield’s opinion. Indeed, we have particularly criticized the use of a lack of treatment to reject mental complaints both because mental illness is notoriously un-derreported and because “ ‘it is a questiona ble practice to chastise one with a mental impairment for the exercise of poor judgment in seeking rehabilitation.’ ” Nguyen, 100 F.3d at 1465 (quoting Blankenship v. Bowen, 874 F.2d 1116, 1124 (6th Cir.1989)). The ALJ also asserted that Dr. Manfield’s opinion is inconsistent with the “absence of [a]" }, { "docid": "22759759", "title": "", "text": "considered, see Andrews, 53 F.3d at 1041. If there is “substantial evidence” in the record contradicting the opinion of the treating physician, the opinion of the treating physician is no longer entitled to “controlling weight.” 20 C.F.R. § 404.1527(d)(2). In that event, the ALJ is instructed by § 404.1527(d)(2) to consider the factors listed in § 404.1527(d)(2)-(6) in determining what weight to accord the opinion of the treating physician. Even when contradicted by an opinion of an examining physician that constitutes substantial evidence, the treating physician’s opinion is “still entitled to deference.” S.S.R. 96-2p at 4, 61 Fed.Reg. at 34,491. “In many cases, a treating source’s medical opinion will be entitled to the greatest weight and should be adopted, even if it does not meet the test for controlling weight.” Id. As we stated in Reddick, “Even if the treating doctor’s opinion is contradicted by another doctor, the ALJ may not reject this opinion -without providing ‘specific and legitimate reasons’ supported by substantial evidence in the record.” 157 F.3d at 725 (quoting Murray, 722 F.2d at 502). 1. Treating Physicians’ Opinions are Entitled to Weight The Commissioner argues that Dr. Kar-amlou’s opinion constitutes per se substantial evidence to support the ALJ’s disregard of the opinions of Drs. Doerning and Nguyen. We disagree. Dr. Karamlou’s opinion that Orn could stand and walk for six hours did not rely on “independent findings.” In addition, the criteria established by § 404.1527 indicate that the opinions of Drs. Doerning and Nguyen are entitled to weight in Orn’s disability determination. Dr. Karamlou, like Drs. Doerning and Nguyen, performed a physical examination of Orn. Dr. Karamlou agreed with the diagnoses provided by Orn’s treating physicians and offered no alternative diagnosis. Dr. Karamlou’s opinion did not rest on results from objective clinical tests that Drs. Doerning and Nguyen had not considered. Dr. Karamlou’s findings “were the same as those of the treating physician[s]. It was his conclusions that differed.” Murray, 722 F.2d at 501 (emphasis in original). Therefore, his conclusion concerning Orn’s ability to stand or walk based on that examination was not an “independent finding,” and" }, { "docid": "23098996", "title": "", "text": "nightmare disorder. Nothing in Dr. Sacks’s report rules out Dr. Manfield’s more extensive findings. The primary difference between the two opinions is that Dr. Man-field supplemented his report with detailed quantifications of Regennitter’s limitations. Dr. Sacks did not quantify his findings because he was not asked to do so by the Commissioner. We conclude that the ALJ erred in rejecting Dr. Manfield’s report on the basis of a conflict between the two psychologists; there is no conflict. See Nguyen v. Chater, 100 F.3d 1462, 1465 (9th Cir.1996) (“Where the purported existence of an inconsistency is squarely contradicted by the record, it may not serve as a basis for the rejection of an examining physician’s conclusions.”). Moreover, the ALJ’s reasons for rejecting Dr. Manfield’s opinion are unpersuasive. In Embrey v. Bowen, 849 F.2d 418 (9th Cir.1988), we explained that conclusory reasons will not justify an ALJ’s rejection of a medical opinion: To say that medical opinions are not supported by sufficient objective findings or are contrary to the preponderant conclusions mandated by the objective findings does not achieve the level of specificity our prior cases have required, even when the objective factors are listed seriatim. The ALJ must do more than offer his own conclusions. He must set forth his own interpretations and explain why they, rather than the doctors’, are correct. 849 F.2d at 421-22. Here, the ALJ asserted that Dr. Man-field’s conclusions were inconsistent with Re-gennitter’s “benign Mental Status Exam.” However, neither psychologist characterized the results of Regennitter’s MSEs as benign. Dr. Sacks found Regennitter to be tearful and sad, with a monotone and hypophonic voice and psychomotor retardation. Dr. Manfield noted Regennitter’s blunted affect and uncontrolled .crying. The ALJ also asserted that Dr. Manfield’s diagnoses are “discounted by [his] failure to refer [Regennitter] for hospitalization or treatment.” This assertion ignores the well-established distinction between an examining and a treating doctor. See, e.g., Lester, 81 F.3d at 830 (“Cases in this circuit distinguish among the opinions of three types of physicians: (1) those who treat the claimant (treating physicians); (2) those who examine but do not treat the claimant" }, { "docid": "22221793", "title": "", "text": "“distinguish among the opinions of three types of physicians: (1) those who treat the claimant (treating physicians); those who examine but do not treat the claimant (examining physicians); and those who neither examine nor treat the claimant (nonexamining physicians).” Lester v. Chater, 81 F.3d 821, 830 (9th Cir.1996) (footnote reference omitted). A treating physician’s opinion is entitled to more weight than an examining physician’s opinion, and an examining physician’s opinion is entitled to more weight than a non-examining physician’s opinion. See id. As applied to this ease, Dr. Monigatti-Lake’s opinion was entitled to the most weight due to her status as treating physician. Acceptance of Dr. Monigatti-Lake’s opinion over that of Drs. Randhawa and Crisp, examining physicians, would be entirely consistent with our governing precedent. See Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir.2002) (noting the deference given to a treating physician’s opinion). Indeed, crediting the opinions of Drs. Randhawa and Crisp over that of Dr. Monigatti-Lake absent “specific and legitimate reasons supported by substantial evidence in the record” would directly contravene our precedent. Lingenfelter v. Astrue, 504 F.3d 1028, 1038 n. 10 (9th Cir.2007) (cita tions omitted). Yet that is precisely what a majority of the panel concludes that the ALJ should have done and does itself. I respectfully disagree because the record does not support crediting the opinion of those examining doctors over the treating doctor. An examination of the record reveals that Dr. Monigatti-Lake, Ryan’s treating physician, never opined that Ryan was unable to work or would “have difficulty maintaining regular attendance in the workplace” as a result of her improving anxiety disorder and treatable depression. In fact, Dr. Monigatti-Lake’s final notation regarding Ryan reflected only “occasional panic attacks” and an observation that Ryan was “still trying to get disability benefits.” Although this notation reflects Dr. Monigatti-Lake’s awareness of the possibility of a disability diagnosis, she did not in any way indicate that Ryan’s conditions were disabling, although she had treated those conditions for a period in excess of two and one-half years. A comparison of the medical records of the treating physicians from December 14," }, { "docid": "22130218", "title": "", "text": "the degree of impairment differs from that of an examining physician who made no observation of the claimant’s mental state. The AU apparently decided that Dr. McCornack’s opinion that Mrs. Sprague could do sedentary work with training was more convincing than Dr. Gehlen’s opinion that she is totally disabled. The general rule is that conflicts in the evidence are to be resolved by the Secretary, Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir.1982), and that the Secretary’s conclusion must be upheld where there is more than one rational interpretation of the evidence. Allen v. Heckler, 749 F.2d 577 (9th Cir.1984). But when the conflict is between the opinions of a treating physician and an examining physician it is the rule in this circuit that “[i]f the AU wishes to disregard the opinion of the treating physician, he or she must make findings setting forth specific, legitimate reasons for doing so that are based on substantial evidence in the record.” Murray v. Heckler, 722 F.2d 499, 502 (9th Cir. 1983). The rationale for giving greater weight to a treating physician’s opinion is that he is employed to cure and has a greater opportunity to know and observe the patient as an individual. Murray, 722 F.2d at 502 (citing Bowman v. Heckler, 706 F.2d 564, 568 (5th Cir.1983)). In this case, the AU concluded that Mrs. Sprague’s impairments do not meet or equal those defining disability when viewed in light of her “sedentary level of work activity.” This conclusion is not supported by substantial evidence both because there is no affirmative evidence that Mrs. Sprague ever engaged in any work activity at all, and because there are no specific reasons given for disregarding Dr. Gehlen’s contrary opinion. We can find only two indirect indications of the AU’s evaluation of Dr. Gehlen’s testimony: (1) reference to Dr. Gehlen’s diagnosis of arthritis, which was apparently not supported by the examining physicians; and (2) reference to Dr. Gehlen’s assessment of the pain Mrs. Sprague suffered which the AU did not believe was consistent with Mrs. Sprague’s efforts to learn to type. These comments are" }, { "docid": "22632010", "title": "", "text": "do not treat the claimant. Winans v. Bowen, 853 F.2d 643, 647 (9th Cir.1987). At least where the treating doctor’s opinion is not contradicted by another doctor, it may be rejected only for “clear and convincing” reasons. Baxter v. Sullivan, 923 F.2d 1391, 1396 (9th Cir.1991). We have also held that “clear and convincing” reasons are required to reject the treating doctor’s ultimate conclusions. Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir.1988). Even if the treating doctor’s opinion is contradicted by another doctor, the Commissioner may not reject this opinion without providing “specific and legitimate reasons” supported by substantial evidence in the record for so doing. Murray v. Heckler, 722 F.2d 499, 502 (9th Cir.1983). The opinion of an examining physician is, in turn, entitled to greater weight than the opinion of a nonexamining physician Pitzer v. Sullivan, 908 F.2d 502, 506 (9th Cir.1990); Gallant v. Heckler, 753 F.2d 1450 (9th Cir.1984). As is the case with the opinion of treating physician, the Commissioner must provide “clear and convincing” reasons for rejecting the uncontra-dicted opinion of an examining physician. Pitzer, 908 F.2d at 506. And like the opinion of a treating doctor, the opinion of an examining doctor, even if contradicted by another doctor, can only be rejected for specific and legitimate reasons that are supported by substantial evidence in the record. Andrews v. Shalala, 53 F.3d 1035, 1043 (9th Cir.1995). Lester v. Chater, 81 F.3d 821, 830-31 (9th Cir.1995). Morgan’s treating psychiatrist and examining psychologist are in agreement that Morgan’s mental state markedly limits him in sustained concentration and persistence and social interaction, two of the four key areas which- are identified by the Social Security Administration’s own regulations as being prerequisite to meeting the mental demands of work. 20 C.F.R. §§ 404.1521, 416.921. They also agree that Morgan lacks one of the three required abilities to perform unskilled work as described in Social Security ruling 85-15. The testifying vocational expert confirmed that an individual with the impairments identified by Drs. Reaves and Grossc-up is precluded from engaging in substantial gainful activity. In combination, Drs. Reaves and Grosscup" }, { "docid": "23098990", "title": "", "text": "over-the-counter pain medication. Two other reasons cited by the ALJ for discounting Regennitter’s testimony are, respectively, irrelevant and inaccurate. The ALJ noted that Regennitter’s treating physician had released him to return to light duty after his neck and back injury. This release, however, is not relevant to Regennitter’s ability to work after the gunshot wound to his leg and the manifestation of his mental illness. The ALJ also noted that Regennit-ter “admitted to significant walking activity with his daughter.” This is an inaccurate characterization of the evidence. When Re-gennitter was asked the maximum distance he could walk, he said that he could walk very slowly with his four-year-old daughter for one and one-half blocks if he rested in the middle. This testimony is consistent with both Regennitter’s other testimony and his alleged disability. See Fair, 885 F.2d at 603 (“The Social Security Act does not require that claimants be utterly incapacitated to be eligible for benefits, ... and many home activities are not easily transferable to what may be the more grueling environment of the workplace ...”) (citations omitted). The ALJ also determined that Regennit-ter’s complaints are “inconsistent with clinical observations.” This determination could satisfy the requirement of a clear and convincing reason for discrediting a claimant’s testimony, except that the ALJ did not specify what complaints are contradicted by what clinical observations. See Lester, 81 F.3d at 834 (“General findings are insufficient; rather, the ALJ must identify what testimony is not credible and what evidence undermines the claimant’s complaints.”). The ALJ noted that Dr. Steven Glusman, an orthopedic specialist who examined Regennitter for the Commissioner, found in Regennitter no “severe objective neurological or orthopedic deficit,” but Dr. Glusman did not opine that this was inconsistent with Regennitter’s complaints. In fact, Dr. Glusman found that Regennitter suffered from chronic headaches and chronic back, neck, shoulder, and leg pain. Moreover, Dr. R.J. Grondel, a neurol ogist who examined Regennitter for the Commissioner, specifically concluded that Regennitter’s subjective complaints were “reasonably consistent” with Dr. Grondel’s objective findings. Similarly, Dr. John Brookhart, Regennitter’s treating physician, confirmed that Regennitter’s complaints of back and leg" }, { "docid": "22649313", "title": "", "text": "1995 WL 328487, at *6 (holding that, where the ALJ failed to consider claimant’s non-exertional limitations, the “ALJ’s decision, on the whole, refleet[ed] an analysis inconsistent with the appropriate framework for assessing disability claims premised on CFS.”). The ALJ’s finding on residual func- tíonal capacity was not supported by substantial evidence as it failed to account for the effects of fatigue on Claimant’s ability to function in the workplace. 3. Physicians’ Opinions In finding that Claimant’s CFS had not rendered her disabled, the ALJ rejected the opinions of Claimant’s treating physician, Dr. Jacobson, and an insurance carrier’s consulting examiner, Dr. Charney, and instead relied on the opinions of the two Social Security consulting examiners, Dr. Wood and Dr. Moseley. The ALJ failed to provide clear, convincing, specific or legitimate reasons for rejecting the opinion of Dr. Jacobson. The ALJ also provided no legitimate basis for rejecting the opinion of Dr. Charney, who was hired by Claimant’s private insurance carrier to examine Claimant and who would have no incentive to overstate her limitations. The opinions of treating doctors should be given more weight than the opinions of doctors who do not treat the claimant. Lester, 81 F.3d at 830. Where the treating doctor’s opinion is not contradicted by another doctor, it may be rejected only for “clear and convincing” reasons supported by substantial evidence in the record. Id. (internal quotation marks omitted). Even if the treating doctor’s opinion is contradicted by another doctor, the ALJ may not reject this opinion without providing “specific and legitimate reasons” supported by substantial evidence in the record. Id. at 830, quoting Murray v. Heckler, 722 F.2d 499, 502 (9th Cir.1983). This can be done by setting out a detailed and thorough summary of the facts and conflicting clinical evidence, stating his interpretation thereof, and making findings. Magallanes, 881 F.2d at 751. The ALJ must do more than offer his conclusions. He must set forth his own interpretations and explain why they, rather than the doctors’, are correct. Embrey v. Bowen, 849 F.2d 418, 421-22 (9th Cir.1988). In disability benefits cases such as this, physicians may" } ]

[ { "docid": "349698", "title": "", "text": "on them are excessive. They claim that the $12,000 fine is not warranted by the factors enumerated in § 2149 of the AWA. These factors are: the size of the business; the gravity of the violation; the good faith of the violator; and the history of previous violations, if any. 7 U.S.C. § 2149(b) (1982). The Secretary is required to consider the appropriateness of the penalty with respect to these factors. Id. Consideration of the first and last factors is straightforward. Given the Coxes’ $1 million gross income, a $12,000 fine is not inappropriate. On the other hand, they have no history of AWA violations. The next factor to consider is the gravity of the violations. Although the violations do not involve cruelty to animals or unsanitary conditions, they are serious. Transporting dogs under eight weeks old endangers their health because their immune systems are not developed enough to withstand the stress of long-distance travel. Tr. I at 68. It also interferes with their psychological development and hence their ability to function when fully grown. Stuekerjuergen, 44 Agric.Dec. at 189. Failure to hold dogs for five days between acquisition and sale also increases the likelihood that they will get sick, prevents proper health monitoring, and makes it more difficult to track down stolen dogs. Tr. I at 67-68, 118-19. In addition, the waiting period is necessary to make sure the dogs are healthy, especially if the dealer buys them from an unlicensed breeder. JO's Decision at 8; Tr. I at 67. Refusal to allow inspection is serious because it prevents detection of AWA violations. Falsification of records is serious by its very nature and because it makes enforcement of the AWA more difficult. As to the remaining factor, the Coxes get no credit for good faith. They committed one violation of the AWA, falsifying records, to cover up another, failing to observe the statutory holding period. Their refusal to allow inspection of their premises and records was in defiance of the AWA. While they may not have known that the dogs they sold were underage, they did not bother to" } ]

[ { "docid": "349692", "title": "", "text": "U.S.C. § 558(c) (1988). Willfulness, as both parties point out in their briefs, includes not only intent to do a prohibited act but also careless disregard of statutory requirements. Goodman v. Benson, 286 F.2d 896, 900 (7th Cir.1961); accord George Steinberg & Son, Inc. v. Butz, 491 F.2d 988, 994 (2d Cir.), cert. denied, 419 U.S. 830, 95 S.Ct. 53, 42 L.Ed.2d 55 (1974); Arab Stock Yard, Inc., 37 Agric.Dec. 293, 306 (1978), aff’d mem. 582 F.2d 39 (5th Cir.1978); see also Butz v. Glover Livestock Comm’n Co., 411 U.S. 182, 93 S.Ct. 1455, 1459 n. 5, 36 L.Ed.2d 142 (1973) (“‘Wilfully’ could refer to either intentional conduct or conduct that was merely careless or negligent.”). The Coxes incorrectly assert that the willfulness of their violations of the AWA is a question of law to be reviewed de novo by this court. It is true that the definition of willfulness is a question of law to be reviewed de novo; however, that question is not before us. Nor are we to consider whether, as a matter of law, the Coxes’ actions met that definition; rather, we must decide whether the evidence is legally sufficient, under the substantial evidence standard, to support the Department’s finding that the violations were willful. There is ample evidence to support this finding. Refusing to permit inspection is obviously willful. The same goes for falsifying records. Of course, people write down the wrong date accidentally on occasion, but when it happens three times within a one-month period and when each time the change makes an illegal act appear legal, an inference of willfulness is justified. The Coxes argue that even if their records were wrong, they themselves did not violate the AWA because the dates in the records were supplied and recorded by their employees. Section 2139 of the AWA, however, imputes the acts of employees to their employers. As for the holding violations, there is substantial evidence that they too were willful. The ALJ did not believe Becky Cox’s testimony that she believed the information in the records to be accurate. The fact that the" }, { "docid": "20581550", "title": "", "text": "that Knapp challenges the Judicial Officer’s refusal to consider his financial circumstances, the Judicial Officer did not abuse his discretion in that regard. Neither the statute nor the regulations require consideration of financial status, and the Judicial Officer’s decision is consistent with Department precedent. See In re Everhart, 56 Agric. Dec. 1400, at *9 & n. 12 (U.S.D.A. Oct. 2,1997) (listing cases). Finally, Knapp argues that the statutory section on penalties, titled “Violations by licensees,” does not apply to him because he does not have a license. 7 U.S.C. § 2149(b). However, “the title of a statute and the heading of a section cannot limit the plain meaning of the text.” Bhd. of R.R. Trainmen v. Balt. & O.R. Co., 331 U.S. 519, 528-29, 67 S.Ct. 1387, 91 L.Ed. 1646 (1947). The statutory text plainly applies to non-licensees who violate the AWA or regulations: sanctions may be imposed against “[a]ny dealer ... that violates any provision of this chapter, or any rule, regulation, or standard promulgated by the Secretary thereunder.” 7 U.S.C. § 2149(b) (emphasis added). The chapter and corresponding regulations, in turn, generally prohibit dealers from buying and selling animals without a license. Section 2149’s penalty provisions therefore apply to Knapp, notwithstanding that section’s title. Hence, the Judicial Officer did not abuse his discretion in assessing a $200 penalty for each violation that is not the subject of our remand. IX. Size of Fine for Violations of Cease and Desist Orders Knapp also challenges the Judicial Officer’s imposition of a $353,100 penalty for knowingly disobeying two prior cease and desist orders. Again, while we will not review the total sanction, we will consider challenges to the Judicial Officer’s decision to impose a penalty of $1,650 for each of the violations not involving aoudad, alpaca, miniature donkeys, or the unexamined sales to Lolli Brothers. First, Knapp challenges the Judicial Officer’s legal conclusion that the statute requires a penalty of $1,650 for each knowing failure to obey the cease and desist orders. The AWA provides, “Any person who knowingly fails to obey a cease and desist order made by the Secretary" }, { "docid": "20581562", "title": "", "text": "did not consider that an aoudad may be a type of goat, as the ALJ found, and thus would be included among the farm animals listed in 9 C.F.R. § 1.1. . Although Knapp’s petition for review raises this argument with respect to unnamed “auction houses,” his brief to the Judicial Officer identifies Lolli Brothers as the relevant auction house. . The Judicial Officer assessed no penalties for the sales of the buffalo, wildebeest, zebras, addax, nilgai, and axis deer, all of which he categorized as hoofstock. In re Knapp, AWA Docket No. 09-0175, 2013 WL 8213607, at *7. . Although this form appears to be missing from the record on appeal, the form was received as evidence at the hearing, and Knapp acknowledged in testimony that the box labelled \"exchange or transfer” was checked. . The Federal Civil Penalties Inflation Adjustment Act of 1990 requires the heads of agencies, by regulation, to adjust civil monetary penalties every four years to reflect inflation. See Pub.L. No. 101-410, 104 Stat. 890 (codified at 28 U.S.C. § 2461 Note); see also Richard L McKinney, Ass't Law Librarian, Fed. Res. Bd., The Authority of Statutes Placed in Section Notes of the United States Code (May 26, 2011). . The Judicial Officer separately found that Knapp’s violations of the AWA and regulations were \"willful.” In re Knapp, AWA Docket No. 09-0175, 2013 WL 8213607, at *11. However, neither the AWA nor the regulations require a showing of willfulness for the imposition of a civil monetary penalty. See Horton, 559 Fed.Appx. at 531 (\"[T]he plain language of the statute lacks a willfulness requirement, and Petitioner clearly violated the AWA by conducting business without a license, regardless of willfulness or knowledge.”); Hickey v. Dep’t of Agric., 878 F.2d 385, 1989 WL 71462, at *2 (9th Cir. June 26, 1989) (unpublished opinion) (noting that \"7 U.S.C. § 2149(b) provides for penalties in the case of any violation, willful or not, with 'due consideration to ... the person’s good faith, and the history of previous violations’ \"(alteration in original)). . In its brief to the AU, the Administrator" }, { "docid": "8522935", "title": "", "text": "states that he seldom gets animals from dog pounds; six, the Plaintiffs 1990 USDA records show that he was telling the USDA information contrary to that which he had-set forth; seven, the USDA confirmed that Plaintiff was under investigation for falsification of his records.” App. at 37. The first five statements, the district court ruled, “are not only true, but they do not appear in any fashion as a matter of law to be defamatory.” Id. at 38. The court also ruled that the sixth statement, that Toney had told the USDA something contrary to what he had told the station’s reporter, “could be defamatory,” as was the case with the seventh statement that Toney was under investigation for falsification of his records on file with the USDA. Id. at 39. But these two statements, the district court concluded, “[we]re not actionable ....because each is true.” Id. We do not disturb the district court’s ruling that none of the first five statements was defamatory in and of itself. Similarly, we accept the court’s ruling that the first four statements were literally true. We shall deal below with whether the district court erred by ruling that statement five was true, but we accept its judgment that statement five was not defamatory on its face even if false. The district court also held that statements six and seven “could be defamatory,” meaning, we suppose, that if otherwise actionable, whether the statements were defamatory would be questions for a jury. Since both statements could be interpreted as impugning the honesty of Toney’s business dealings, we agree with the district court’s characterization of these statements. Even if defamatory, the district court held statements six and seven not actionable because they were true as a matter of law. We accept this ruling with respect to the seventh statement, but not with regard to statement six — i.e., that Toney’s 1990 records filed with the USDA showed that Toney was telling the government something contrary to what Toney had reportedly said in statement five: that he seldom gets dogs from dog pounds. For the reasons stated" }, { "docid": "349693", "title": "", "text": "matter of law, the Coxes’ actions met that definition; rather, we must decide whether the evidence is legally sufficient, under the substantial evidence standard, to support the Department’s finding that the violations were willful. There is ample evidence to support this finding. Refusing to permit inspection is obviously willful. The same goes for falsifying records. Of course, people write down the wrong date accidentally on occasion, but when it happens three times within a one-month period and when each time the change makes an illegal act appear legal, an inference of willfulness is justified. The Coxes argue that even if their records were wrong, they themselves did not violate the AWA because the dates in the records were supplied and recorded by their employees. Section 2139 of the AWA, however, imputes the acts of employees to their employers. As for the holding violations, there is substantial evidence that they too were willful. The ALJ did not believe Becky Cox’s testimony that she believed the information in the records to be accurate. The fact that the Coxes falsified records to cover up the holding period violations shows that they knew they had committed them and suggests that these violations were deliberate. Finally, the Coxes contend that because they in good faith believed that the puppies were eight weeks old at the time of sale, they did not willfully violate the eight-week age minimum. The Coxes did not find out that the puppies were too young, they say, until they received the American Kennel Club papers showing the date of birth after the puppies had already been shipped. Ignorance is not a defense, especially when it is avoidable; the Coxes could have made sure they were complying with the law by waiting for the A.K.C. papers to arrive. See James & Julia Stuekerjuergen, 44 Agric.Dec. 186,190 (1985) (dealers assumed the risk that the dogs might be underage when they sold them without waiting for the papers). Such careless disregard of statutory requirements constitutes willfulness. See id. Finally, it should be pointed out that for a suspension to be authorized in this case," }, { "docid": "8522926", "title": "", "text": "a representative from the University of Minnesota laboratories, an official from the USDA, owners of dogs who believed that their pets may have been stolen and sold to research laboratories as well as Toney and another USDA licensed dog dealer. In pertinent part, WCCO’s report stated that: So these animals that are “retired from service,” or unclaimed at the pound, or stolen from unsuspecting owners are sold to middlemen. The USDA licenses these middlemen and calls them Class B dog dealers. According to the Animal Welfare Act only these Class B[dog] dealers can sell animals to research institutions. But we found plenty of holes in this system that may also be protecting animal thieves. * * * * * * South about 40 miles on the Iowa/Missouri border, we found the place where Class B dealer Julian Toney buys the dogs he sells to the University. * ^ * * * * According to USDA records Mr. Toney supplies about a thousand dogs a year to the University of Minnesota. He told us the university is only about a fifth of his business. He said he seldom gets animals from dog pounds. But when we checked his 1990 records, we found he was telling the USDA just the opposite. Last week, the USDA confirmed that Julian Toney himself is under investigation for falsification of records. No one is accusing major research institutions of seeking out stolen pets for their experiments. But the system relies on human honesty and adequate enforcement, and we found shortages of both. App. at 46-48. Shortly after the broadcast, the USDA charged Toney with falsifying his records. After WCCO refused to retract its statements about Toney, he filed a two-count com plaint alleging that WCCO defamed him directly and also by implication. Specifically, Toney maintained that the report implied that he sold stolen animals, was dishonest and a thief, and lied about the source of his animals. Alleging that this report damaged him personally as well as professionally, Toney requested compensatory as well as punitive damages in an amount over $50,000. WCCO moved to dismiss Toney’s" }, { "docid": "349694", "title": "", "text": "Coxes falsified records to cover up the holding period violations shows that they knew they had committed them and suggests that these violations were deliberate. Finally, the Coxes contend that because they in good faith believed that the puppies were eight weeks old at the time of sale, they did not willfully violate the eight-week age minimum. The Coxes did not find out that the puppies were too young, they say, until they received the American Kennel Club papers showing the date of birth after the puppies had already been shipped. Ignorance is not a defense, especially when it is avoidable; the Coxes could have made sure they were complying with the law by waiting for the A.K.C. papers to arrive. See James & Julia Stuekerjuergen, 44 Agric.Dec. 186,190 (1985) (dealers assumed the risk that the dogs might be underage when they sold them without waiting for the papers). Such careless disregard of statutory requirements constitutes willfulness. See id. Finally, it should be pointed out that for a suspension to be authorized in this case, the only requirement is that at least one of the violations be willful. See 7 U.S.C. § 2149(a); 5 U.S.C. § 558(e). The government need not show that all the violations were willful. B. First Amendment The Coxes next contend that they were punished for exercising their free speech rights: specifically, for their letter to APHIS, for the letters they sent to other dog breeders and pet store owners, and for Lee Cox’s insulting remarks to the APHIS inspector. A reviewing court is required to set aside agency action, findings, and conclusions “contrary to constitutional right.” 5 U.S.C. § 706(2)(B). Although questions of constitutional law are reviewed de novo, whether the Department’s action was contrary to constitutional right depends on what its motivation was, which is a question of fact. At the administrative level, the Coxes pursued the theory that the Department was retaliating against them for speaking out, but the AU and JO were not convinced. We review their implicit finding that the Department’s action was motivated by legitimate enforcement concerns under the same" }, { "docid": "8522937", "title": "", "text": "below, we doubt that statement six was so plainly true that it could be so characterized as a matter of law. First, we question whether the four pages exhibited from the 1990 records show that for that year Toney could not reasonably assert that he only “seldom” got dogs from pounds. As Toney argued during the hearing in district court, he handled some 5,000 dogs in 1990, and even if each of the 20 entries on the four pages of record relied on by WCCO indicated that he did get dogs from pounds, that fact would not show that his business with pounds in 1990 occurred more often than “seldom.” App. at 27-28. Moreover, we note that, in a colloquy with counsel, the district judge observed that the “question of whether or not it’s seldom, I guess, becomes kind of an open question.” App. at 27. Toney’s counsel responded: “Yeah, which is a fact question. That’s our whole point.” Id. Second, even if the filed records for 1990 could establish that Toney dealt with pounds more often than seldom, the interview with Toney which contained statement five was held in 1992, and his reported statement was that he seldom “gets” dogs from pounds. Thus, it is at least doubtful that what was true in 1990 was also true in 1992. Third, in his affidavit opposing summary judgment, Toney swore, and maintains on appeal, see Brief of Aplt. at 17, that he did not “state to WCCO-TV that I seldom got my dogs from pounds as alleged or asserted in the televised report. I explained the source of each and every dog that was questioned or inquired about by the WCCO reporter.” App. at 49. Laurie Stern, the producer of the program, filed an opposing affidavit stating that “Julian Toney told me during the interview that he rarely obtained dogs from dog pounds.” Supp.App. of Aplee. at 11. Aside from the significant use of the word “rarely” in place of the word “seldom” (the word allegedly used by Toney in the' interview), the two affidavits are in conflict. Of course, if" }, { "docid": "20581549", "title": "", "text": "faith.”); see also Horton v. U.S. Dep’t of Agric., 559 Fed.Appx. 527, 535 (6th Cir.2014) (“[B]ad faith ... can also be found where a petitioner receives notice of his violations yet continues to operate without a license.”); Cox v. U.S. Dep’t of Agric., 925 F.2d 1102, 1107 (8th Cir.1991) (upholding the Judicial Officer’s finding of a lack of good faith based on a previous AWA violation and a failure to learn facts that would have alerted petitioners to an additional AWA violation). Third, Knapp argues that the Judicial Officer erred in refusing to consider factors other than those listed in § 2149(b)— “the size of the business of the person involved, the gravity of the violation, the person’s good faith, and the history of previous violations.” Knapp’s argument rests on a mistaken premise. The Judicial Officer did not consider only the factors identified in § 2149(b), but also noted the Department’s sanction policy and the “remedial purposes” of the AWA. In re Knapp, AWA Docket No. 09-0175, 2013 WL 8213607, at *10. To the extent that Knapp challenges the Judicial Officer’s refusal to consider his financial circumstances, the Judicial Officer did not abuse his discretion in that regard. Neither the statute nor the regulations require consideration of financial status, and the Judicial Officer’s decision is consistent with Department precedent. See In re Everhart, 56 Agric. Dec. 1400, at *9 & n. 12 (U.S.D.A. Oct. 2,1997) (listing cases). Finally, Knapp argues that the statutory section on penalties, titled “Violations by licensees,” does not apply to him because he does not have a license. 7 U.S.C. § 2149(b). However, “the title of a statute and the heading of a section cannot limit the plain meaning of the text.” Bhd. of R.R. Trainmen v. Balt. & O.R. Co., 331 U.S. 519, 528-29, 67 S.Ct. 1387, 91 L.Ed. 1646 (1947). The statutory text plainly applies to non-licensees who violate the AWA or regulations: sanctions may be imposed against “[a]ny dealer ... that violates any provision of this chapter, or any rule, regulation, or standard promulgated by the Secretary thereunder.” 7 U.S.C. § 2149(b) (emphasis" }, { "docid": "22681924", "title": "", "text": "their true weights, issued scale tickets and accountings to the consignors on the basis of the false weights, and paid the consignors on the basis of the false weights.” The hearing examiner recommended, in addition to a cease-and-desist order and an order to keep correct records, a 30-day suspension of respondent’s registration under the Act. The matter was then referred to the Judicial Officer.After hearing oral argument, the Judicial Officer filed a decision and order accepting the hearing examiner’s findings and adopting his recommendations of a cease-and-desist order and an order to keep correct records. The recommended suspension was also imposed but was reduced to 20 days. The Judicial Officer stated: “It is not a pleasant task to impose sanctions but in view of the previous warnings given respondent we conclude that we should not only issue a cease and desist order but also a suspension of respondent as a registrant under the act but for a lesser period than recommended by complainant and the hearing examiner.” 30 Agri. Dec. 179, 186 (1971). The Court of Appeals agreed that 7 U. S. C. § 204 authorized the Secretary to suspend “any registrant found in violation of the Act,” 454 F. 2d, at 113, that the suspension procedure here satisfied the relevant requirements of the Administrative Procedure Act, 5 U. S. C. § 558, and that “the evidence indicates that [respondent] acted with careless disregard of the statutory requirements and thus meets the test of wilfulness.’ ” 454 F. 2d, at 115. The court nevertheless concluded that the suspension order was “unconscionable” under the circumstances of this case. The court gave two reasons. The first, relying on four previous suspension decisions, was that the Secretary’s practice was not to impose suspensions for negligent or careless violations but only for violations found to be “intentional and flagrant,” and therefore that the suspension in respondent’s case was contrary to a policy of “ ‘achieving] . . . uniformity of sanctions for similar violations.’ ” The second reason given was that “[t]he cease and desist order coupled with the damaging publicity surrounding these proceedings" }, { "docid": "8522934", "title": "", "text": "412, 419-20 (Tenn.1978), where the court held liable a newspaper that truthfully reported that a woman, upon finding her husband at plaintiffs home, shot the plaintiff. In that case, the article neglected to mention that the plaintiff was hosting a social gathering at the time, thereby implying that the plaintiff and the suspect’s husband were having an affair. Id. at 420. Moreover, the court held that truth of the challenged statements was irrelevant because “[t]ruth is available as an absolute defense only when the defamatory meaning conveyed by the words is true.” Id. C. TONEY’S DEFAMATION CLAIM The district court identified seven statements that the broadcast made about Toney: “The Plaintiff is a Class B dealer of dogs; two, the Plaintiff buys dogs and sells some, and among those sold, sales are made to the University of Minnesota; three, according to the USDA’s records, the Plaintiff supplies some thousand dogs per year to the University; four, it’s the Plaintiffs estimate that the University is approximately 20 percent of his business; five, the Plaintiff asserts and states that he seldom gets animals from dog pounds; six, the Plaintiffs 1990 USDA records show that he was telling the USDA information contrary to that which he had-set forth; seven, the USDA confirmed that Plaintiff was under investigation for falsification of his records.” App. at 37. The first five statements, the district court ruled, “are not only true, but they do not appear in any fashion as a matter of law to be defamatory.” Id. at 38. The court also ruled that the sixth statement, that Toney had told the USDA something contrary to what he had told the station’s reporter, “could be defamatory,” as was the case with the seventh statement that Toney was under investigation for falsification of his records on file with the USDA. Id. at 39. But these two statements, the district court concluded, “[we]re not actionable ....because each is true.” Id. We do not disturb the district court’s ruling that none of the first five statements was defamatory in and of itself. Similarly, we accept the court’s ruling that" }, { "docid": "8522939", "title": "", "text": "Toney never made statement five, it could hardly be termed true, as the district judge held; and, if never made, WCCO’s fabrication of the statement only compounds the possible defamation. On appeal, Toney claims that, at the very least, the conflict between the two affidavits should be resolved by a jury, not by the district judge’s ruling that, as a matter of law, statement five was in effect made and was true. In explaining his ruling on this point, the district judge said: Now, according to the pleadings, many of the above statements were supplied by the Plaintiff himself in an interview. Whatever the source, the first five statements do not appear to be in contest. They are in fact true by all assertions. There is some question exactly whether or not he made exactly the statements, but there is no substantial dispute about the actuality. He said he seldom gets animals from dog pounds, and all the rest of those facts, I think, are clearly agreed to be stated as they have been stated. App. at 37-38. This is hardly a crystal clear basis for the resolution of conflicting affidavits at the summary judgment stage. Even if the judge had a satisfactory, but unstated, explanation for holding that Toney uttered statement five, that explanation would fall considerably short, as indicated above, of establishing the truth of statement six — i.e., that statement five is inconsistent with the records filed with the USDA for 1990. Thus, we cannot affirm the judgment granting WCCO’s motion for summary judgment on the defamation count of the complaint insofar as it deals with statement six. To that extent, we reverse the district court’s judgment on Toney’s defamation claim and remand this ease for further proceedings consistent with this opinion. We otherwise affirm the district court’s disposition of Toney’s defamation claim. D. MINNESOTA LAW ON DEFAMATION BY IMPLICATION As indicated above, the district court held that Minnesota law does not provide a cause of action for defamation by implication. We have also pointed out that we do not interpret this ruling as applying to statements" }, { "docid": "349699", "title": "", "text": "Stuekerjuergen, 44 Agric.Dec. at 189. Failure to hold dogs for five days between acquisition and sale also increases the likelihood that they will get sick, prevents proper health monitoring, and makes it more difficult to track down stolen dogs. Tr. I at 67-68, 118-19. In addition, the waiting period is necessary to make sure the dogs are healthy, especially if the dealer buys them from an unlicensed breeder. JO's Decision at 8; Tr. I at 67. Refusal to allow inspection is serious because it prevents detection of AWA violations. Falsification of records is serious by its very nature and because it makes enforcement of the AWA more difficult. As to the remaining factor, the Coxes get no credit for good faith. They committed one violation of the AWA, falsifying records, to cover up another, failing to observe the statutory holding period. Their refusal to allow inspection of their premises and records was in defiance of the AWA. While they may not have known that the dogs they sold were underage, they did not bother to find out, despite the fact that they knew of the eight-week minimum age requirement. We conclude that the sanctions imposed on the Coxes are appropriate in light of the factors set forth in § 2149(b). The Coxes further argue that the punishment they received was excessive because it was disproportionate to that imposed in other AWA cases. It is true that the ninety-day suspension and $12,000 fine are relatively severe; however, the Coxes are not entitled to a sanction no more severe than that applied to others. Spencer Livestock Comm'n Co. v. Department of Agric., 841 F.2d 1451, 1456 (9th Cir.1988); see Glover, 93 S.Ct. at 1459 (\"The employment of a sanction within the authority of an administrative agency is ... not rendered invalid in a particular case because it is more severe than sanctions imposed in other cases.\"). It is the Department's job, not ours, to fashion a remedy for violations of the AWA. Because assessing penalties is not a factual finding but the exercise of a discretionary grant of power, Beau Constr. Co." }, { "docid": "20581548", "title": "", "text": "2013 WL 8208439, at *8 & n. 20. At all relevant times, therefore, the maximum penalty exceeded the imposed penalty of $200 per violation. Second, Knapp argues that the Judicial Officer erred in concluding that he did not act in good faith. The AWA requires the Secretary, in selecting a penalty, to “give due consideration” to various factors, including “the person’s good faith.” 7 U.S.C. § 2149(b). The Judicial Officer concluded that Knapp lacked good faith because his conduct during a five-year period “reveal[ed] a consistent disregard for, and unwillingness to abide by, the requirements of the Animal Welfare Act and the Regulations.” In re Knapp, AWA Docket No. 09-0175, 2013 WL 8213607, at *9. The Judicial Officer did not abuse his discretion in finding a lack of good faith, particularly in light of Knapp’s previous violations of the AWA and regulations. See In re Mitchell, AWA Docket No. 09-0084, 2010 WL 5295429, at *7 (U.S.D.A. Dec. 21, 2010) (“Mr. Mitchell has a history of previous violations and this fact demonstrates an absence of good faith.”); see also Horton v. U.S. Dep’t of Agric., 559 Fed.Appx. 527, 535 (6th Cir.2014) (“[B]ad faith ... can also be found where a petitioner receives notice of his violations yet continues to operate without a license.”); Cox v. U.S. Dep’t of Agric., 925 F.2d 1102, 1107 (8th Cir.1991) (upholding the Judicial Officer’s finding of a lack of good faith based on a previous AWA violation and a failure to learn facts that would have alerted petitioners to an additional AWA violation). Third, Knapp argues that the Judicial Officer erred in refusing to consider factors other than those listed in § 2149(b)— “the size of the business of the person involved, the gravity of the violation, the person’s good faith, and the history of previous violations.” Knapp’s argument rests on a mistaken premise. The Judicial Officer did not consider only the factors identified in § 2149(b), but also noted the Department’s sanction policy and the “remedial purposes” of the AWA. In re Knapp, AWA Docket No. 09-0175, 2013 WL 8213607, at *10. To the extent" }, { "docid": "23516903", "title": "", "text": "would not sell her dogs for medical research, signed a statement to that effect and promised to notify the owner if she ever did consider selling the dogs for medical research. Linville nonetheless sold those dogs to the Stephenses for resale to medical research facilities, and, as a result, the dogs died. To perpetrate the fraud and conceal the animals’ whereabouts from their owners, Lin-ville obtained the names of individuals who had recently renewed their driver licenses and gave that information to the Stephenses to record in their United States Department of Agriculture (USDA) acquisition records as the names of people who had supposedly sold animals to the kennel. Linville received administrative warnings from the USDA which notified her that she was impermissibly selling dogs and cats to USDA licensed dealers in Oregon without a license. A May 16, 1991 letter merely informed her that she might have violated the law and should consider obtaining a license. The May 16, 1991 letter also noted that a federal regulation “prohibits anyone from obtaining random source dogs and cats by use of false pretenses, misrepresentation or deception.” This was followed by an “Official Notification and Warning of Violation of Federal Regulations” dated June 7, 1991, for “[d]ealing in animals covered by the Animal Welfare Act without a license.” The letter accompanying the June 7, 1991 notice referred to it as a citation and warned Linville of the stiff penalties associated with violations of requirements of the Animal Welfare Act. Neither the letter nor the notification directed that she appear at any hearing, although they did say she could call if she had any questions. Linville obtained a license in October 1991, but did not use it to sell dogs to the Stephenses. Linville was sentenced to 8 months imprisonment, 2 months home detention and 3 years supervised release. The court imposed a two-level increase on Linville’s base offense level under U.S.S.G. § 2Fl.l(b)(3)(B) for violation of administrative process. It referred to the two letters and the notification that Linville received from the USDA. JURISDICTION AND STANDARDS OF REVIEW The district court had" }, { "docid": "8522927", "title": "", "text": "is only about a fifth of his business. He said he seldom gets animals from dog pounds. But when we checked his 1990 records, we found he was telling the USDA just the opposite. Last week, the USDA confirmed that Julian Toney himself is under investigation for falsification of records. No one is accusing major research institutions of seeking out stolen pets for their experiments. But the system relies on human honesty and adequate enforcement, and we found shortages of both. App. at 46-48. Shortly after the broadcast, the USDA charged Toney with falsifying his records. After WCCO refused to retract its statements about Toney, he filed a two-count com plaint alleging that WCCO defamed him directly and also by implication. Specifically, Toney maintained that the report implied that he sold stolen animals, was dishonest and a thief, and lied about the source of his animals. Alleging that this report damaged him personally as well as professionally, Toney requested compensatory as well as punitive damages in an amount over $50,000. WCCO moved to dismiss Toney’s amended complaint, or in the alternative, for judgment as a matter of law. After holding oral argument, the district court first rejected Toney’s defamation claim, ruling that the statements in the report about Toney were either true or non-defamatory. The court then held that, because Minnesota did not provide a claim for relief based on defamation by implication, WCCO was also entitled to summary judgment on Toney’s implied defamation claims. Toney filed this timely appeal. III. DISCUSSION A. APPLICABLE LAW AND STANDARD OF REVIEW Because this ease arises under this court’s diversity jurisdiction, the substantive issues are governed by Minnesota law. B.B. v. Continental Ins. Co., 8 F.3d 1288, 1291 (8th Cir.1993). Thus, our task is to determine and apply Minnesota law. Farr v. Farm Bureau Ins. Co., 61 F.3d 677, 679 (8th Cir.1995). Of course, Minnesota courts must apply federal constitutional standards that are applicable to cases like this. In this regard, it is conceded that Toney is not a public figure; rather, he is a private plaintiff in this defamation case. We review" }, { "docid": "349690", "title": "", "text": "Club, also referred to the A.K.C.’s “communistic conspirator friends at U.S.D.A.” The Department filed charges against the Coxes, and a hearing was held before an administrative law judge (AU) in December 1988. The AU found that the Coxes had committed forty-one violations of the AWA and its regulations, as follows: (1) twelve violations of 9 C.F.R. § 2.130, delivering dogs less than eight weeks old to carriers for transportation in commerce; (2) thirteen violations of 7 U.S.C. § 2135 and 9 C.F.R. § 2.101, failure to hold dogs at least five days after acquisition; (3) fifteen violations of 7 U.S.C. § 2140 and 9 C.F.R. § 2.75, failure to maintain accurate records; and (4) one violation of 7 U.S.C. § 2146 and 9 C.F.R. § 2.126, refusing to permit APHIS officials to inspect the Pixy Pals facility and records. All of the violations except the failure to permit inspection took place during 1985. The AU ordered the Coxes to cease and desist from these violations, imposed a $12,000 fine on them, and suspended their license for ninety days. In addition, the suspension was to continue until they demonstrated compliance with the AWA and regulations. The Coxes appealed to the Department of Agriculture’s judicial officer (JO), who affirmed the AU’s decision. The Coxes then petitioned this court for review. They ask that we set aside the JO’s order or, in the alternative, modify the sanctions imposed. II. The Department of Agriculture’s decision must be upheld if it is supported by substantial evidence. Western States Cattle Co. v. United States Dep’t of Agric., 880 F.2d 88, 89 (8th Cir.1989); Farrow v. United States Dep’t of Agric., 760 F.2d 211, 213 (8th Cir.1985). 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, 217, 83 L.Ed. 126 (1938). A. Willfulness The Coxes argue first that the evidence is insufficient to sustain a finding of willfulness, which is required under § 558(c) of the Administrative Procedure Act before a suspension may be imposed. 5" }, { "docid": "8522938", "title": "", "text": "more often than seldom, the interview with Toney which contained statement five was held in 1992, and his reported statement was that he seldom “gets” dogs from pounds. Thus, it is at least doubtful that what was true in 1990 was also true in 1992. Third, in his affidavit opposing summary judgment, Toney swore, and maintains on appeal, see Brief of Aplt. at 17, that he did not “state to WCCO-TV that I seldom got my dogs from pounds as alleged or asserted in the televised report. I explained the source of each and every dog that was questioned or inquired about by the WCCO reporter.” App. at 49. Laurie Stern, the producer of the program, filed an opposing affidavit stating that “Julian Toney told me during the interview that he rarely obtained dogs from dog pounds.” Supp.App. of Aplee. at 11. Aside from the significant use of the word “rarely” in place of the word “seldom” (the word allegedly used by Toney in the' interview), the two affidavits are in conflict. Of course, if Toney never made statement five, it could hardly be termed true, as the district judge held; and, if never made, WCCO’s fabrication of the statement only compounds the possible defamation. On appeal, Toney claims that, at the very least, the conflict between the two affidavits should be resolved by a jury, not by the district judge’s ruling that, as a matter of law, statement five was in effect made and was true. In explaining his ruling on this point, the district judge said: Now, according to the pleadings, many of the above statements were supplied by the Plaintiff himself in an interview. Whatever the source, the first five statements do not appear to be in contest. They are in fact true by all assertions. There is some question exactly whether or not he made exactly the statements, but there is no substantial dispute about the actuality. He said he seldom gets animals from dog pounds, and all the rest of those facts, I think, are clearly agreed to be stated as they have been stated." }, { "docid": "8522925", "title": "", "text": "WHITE, Associate Justice (Ret.). I. INTRODUCTION Plaintiff-Appellant Julian Toney (“Toney”) brought this action against Defendant-Appellee WCCO Television, Midwest Cable and Satellite, Inc., a/k/a WCCO TV, Channel 4 (“WCCO”), alleging that a report on the sale of dogs to research institutions defamed him and defamed him by implication. The district court granted summary judgment to WCCO. For the reasons set forth below, we reverse in part and affirm in part the district court’s judgment that WCCO did not defame Toney, reverse its dismissal of Toney’s defamation by implication claim, and remand this case for further proceedings. II. BACKGROUND Toney is a dog dealer who resides in Iowa and does business in Iowa, Missouri and Minnesota. Toney, who had registered with and was licensed by the United States Department of Agriculture (“USDA”), sold dogs to the University of Minnesota. On or about May 20, 1992, WCCO, a television station headquartered in Minneapolis, Minnesota, broadcast a report about how certain dog dealers sold stolen dogs to research institutions for use in medical research. The broadcast included interviews with a representative from the University of Minnesota laboratories, an official from the USDA, owners of dogs who believed that their pets may have been stolen and sold to research laboratories as well as Toney and another USDA licensed dog dealer. In pertinent part, WCCO’s report stated that: So these animals that are “retired from service,” or unclaimed at the pound, or stolen from unsuspecting owners are sold to middlemen. The USDA licenses these middlemen and calls them Class B dog dealers. According to the Animal Welfare Act only these Class B[dog] dealers can sell animals to research institutions. But we found plenty of holes in this system that may also be protecting animal thieves. * * * * * * South about 40 miles on the Iowa/Missouri border, we found the place where Class B dealer Julian Toney buys the dogs he sells to the University. * ^ * * * * According to USDA records Mr. Toney supplies about a thousand dogs a year to the University of Minnesota. He told us the university" }, { "docid": "20581547", "title": "", "text": "assessed a civil penalty by the Secretary of not more than $2,500 for each such violation”). As of June 2005, before the first of Knapp’s challenged transactions, the Secretary had increased that figure to $3,750 per violation under the Federal Civil Penalties Inflation Adjustment Act. See 70 Fed.Reg. 29578, 29577 (May 24, 2005) (codified at 7 C.F.R. § 3.91(b)(2)(ii) (2006)). On June 18, 2008, Congress amended § 2149(b) to provide for a maximum civil penalty of $10,000 for each violation of the. AWA and regulations. Pub.L. No. 110-246, § 14214, 122 Stat. 1651, 2228 (2008) (codified at 7 U.S.C. § 2149); see also 7 C.F.R. § 3.91(b)(2)(h) (2015) (restating the $10,000 maximum penalty). The Judicial Officer correctly concluded that Knapp could be assessed a penalty of up to $3,750 for each of the 38 violations he committed before June 18, 2008, and a penalty of up to $10,000 for each of the 176 violations he committed after June 18, 2008, not counting the violations involving sales of hoofs-tock. In re Knapp, AWA Docket No. 09-0175, 2013 WL 8208439, at *8 & n. 20. At all relevant times, therefore, the maximum penalty exceeded the imposed penalty of $200 per violation. Second, Knapp argues that the Judicial Officer erred in concluding that he did not act in good faith. The AWA requires the Secretary, in selecting a penalty, to “give due consideration” to various factors, including “the person’s good faith.” 7 U.S.C. § 2149(b). The Judicial Officer concluded that Knapp lacked good faith because his conduct during a five-year period “reveal[ed] a consistent disregard for, and unwillingness to abide by, the requirements of the Animal Welfare Act and the Regulations.” In re Knapp, AWA Docket No. 09-0175, 2013 WL 8213607, at *9. The Judicial Officer did not abuse his discretion in finding a lack of good faith, particularly in light of Knapp’s previous violations of the AWA and regulations. See In re Mitchell, AWA Docket No. 09-0084, 2010 WL 5295429, at *7 (U.S.D.A. Dec. 21, 2010) (“Mr. Mitchell has a history of previous violations and this fact demonstrates an absence of good" } ]

[ { "docid": "22318238", "title": "", "text": "Santa Fe Elevator Corp., 331 U. S. 218, 230 (1947); Jones v. Rath Packing Co., 430 U. S. 519, 525 (1977). Under the relevant cases, one of the legitimate inquiries is whether Congress has either explicitly or implicitly declared that the States are prohibited from regulating the various aspects of oil-tanker operations and design with which the Tanker Law is concerned. As the Court noted in Rice, supra, at 230: “[The congressional] purpose may be evidenced in several ways. The scheme of federal regulation may be so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it. Pennsylvania R. Co. v. Public Service Comm’n, 250 U. S. 566, 569; Cloverleaf Butter Co. v. Patterson, 315 U. S. 148. Or the Act of Congress may touch a field in which the federal interest is so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject. Hines v. Davidowitz, 312 U. S. 52. Likewise, the object sought to be obtained by the federal law and the character of obligations imposed by it may reveal the same purpose. Southern R. Co. v. Railroad Commission, 236 U. S. 439; Charleston & W. C. R. Co. v. Varnville Co., 237 U. S. 597; New York Central R. Co. v. Winfield, 244 U. S. 147; Napier v. Atlantic Coast Line R. Co., supra.” Accord, City of Burbank v. Lockheed Air Terminal, Inc., 411 U. S. 624, 633 (1973). Even, if Congress has not completely foreclosed state legislation in a particular area, a state statute is void to the extent that it actually conflicts with a valid federal statute. A conflict will be found “where compliance with both federal and state regulations is a physical impossibility . . . ,” Florida Lime & Avocado Growers, Inc. v. Paul, 373 U. S. 132, 142-143 (1963), or where the state “law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Hines v. Davidowitz, 312 U. S. 52, 67 (1941); Jones v. Rath Packing Co., supra," } ]

[ { "docid": "2112661", "title": "", "text": "sections 25503 and 2S524.2. IV PREEMPTION When a state statute is challenged under the supremacy clause, U.S.Const. art. VI, cl. 2, our inquiry is directed to whether Congress intended to prohibit the states from regulating in such a manner. We start with the assumption that the states’ police powers were not to be superseded “unless that was the clear and manifest purpose of Congress.” Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 1152, 91 L.Ed. 1447 (1947); accord, e. g., Ray v. Atlantic Richfield Co., 435 U.S. 151, 157, 98 S.Ct. 988, 994, 55 L.Ed.2d 179 (1978); Jones v. Rath Packing Co., 430 U.S. 519, 525, 97 S.Ct. 1305, 1309, 51 L.Ed.2d 604 (1977). Congress’s purpose is most clear, of course, when the federal statute at issue explicitly prohibits state regulation in the same field. E. g., Rath Packing, 430 U.S. at 530-31, 97 S.Ct. at 1312. When the federal statute contains no such prohibition, congressional intent to preempt may be inferred from the nature of the federal regulatory scheme, e. g., Ray, 435 U.S. at 163, 98 S.Ct. at 997; City of Burbank v. Lockheed Air Terminal, Inc., 411 U.S. 624, 633, 93 S.Ct. 1854, 1859, 36 L.Ed.2d 547 (1973), or from the subject matter being regulated, e. g., Rice, 331 U.S. at 230, 67 S.Ct. at 1152; Hines v. Davidowitz, 312 U.S. 52, 62-63, 61 S.Ct. 399, 401-02, 85 L.Ed. 581 (1941). Congressional intent to preempt must, however, be unambiguous. Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 146-47, 83 S.Ct. 1210, 1219-20, 10 L.Ed.2d 248 (1963). An intent to preempt cannot be inferred from the mere fact that the federal statute is detailed and complex, see De Canas v. Bica, 424 U.S. 351, 359-60, 96 S.Ct. 933, 938, 47 L.Ed.2d 43 (1976); New York State Department of Social Services v. Dublino, 413 U.S. 405, 415, 93 S.Ct. 2507, 2514, 37 L.Ed.2d 688 (1973), or because the state legislation touches an area of predominantly national concern, e. g., De Canas, 424 U.S. at 354-55, 96 S.Ct. at 935-36; Kewanee Oil" }, { "docid": "9675852", "title": "", "text": "the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” Preemption exists under the Supremacy Clause where (i) Congress expressly intended to preempt state law, Jones v. Rath Packing Co., 430 U.S. 519, 97 S.Ct. 1305, 51 L.Ed.2d 604 (1977); (ii) there is actual conflict between federal and state law, Free v. Bland, 369 U.S. 663, 82 S.Ct. 1089, 8 L.Ed.2d 180 (1962); (iii) compliance with both federal and state law is impossible, Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 83 S.Ct. 1210, 10 L.Ed.2d 248 (1963); (iv) there is implicit in federal law a barrier to state regulation, Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 103 S.Ct. 2890, 77 L.Ed.2d 490 (1983); (v) Congress has “occupied the field” of the regulation, leaving no room for a state to supplement the federal law, Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 67 S.Ct. 1146, 91 L.Ed. 1447 (1947); or (vi) the state statute forms an obstacle to the realization of Congressional objectives, Hines v. Davidowitz, 312 U.S. 52, 61 S.Ct. 399, 85 L.Ed. 581 (1941). See generally Louisiana Pub. Serv. Comm’n v. Federal Communications Comm’n, 476 U.S. 355, 368-69, 106 S.Ct. 1890, 1898-99, 90 L.Ed.2d 369 (1986). Federal law need not be statutory to preempt state law. Regulations promulgated by an agency pursuant to its delegated authority may preempt similar state regulations. See Capital Cities Cable, Inc. v. Crisp, 467 U.S. 691, 104 S.Ct. 2694, 81 L.Ed.2d 580 (1984); Fidelity Fed. Sav. & Loan Ass’n v. De la Cuesta, 458 U.S. 141, 102 S.Ct. 3014, 73 L.Ed.2d 664 (1982). National Fuel’s preemption argument rests on two theories. First, it argues that the Natural Gas Act was intended by Congress to vest exclusive jurisdiction in the FERC to regulate natural gas pipelines used in interstate commerce. Second, it asserts that a comparison of Article VII and the FERC regime demonstrates that Congress has fully occupied the field that the" }, { "docid": "23175383", "title": "", "text": "have asserted. II. A. Preemption Principles The United States Supreme Court has identified several principles for ascertaining congressional intent to preempt state authority. To begin, Congress may preempt state law by express statement. Jones v. Rath Packing Co., 430 U.S. 519, 525, 97 S.Ct. 1305, 1309, 51 L.Ed.2d 604 (1977). Without the aid of express language, a court may find intent to preempt in two general ways. Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 104 S.Ct. 615, 621, 78 L.Ed.2d 443 (1984). First, a court may determine that Congress intended “to occupy a field” in a given area because “[t]he scheme of federal regulation may be so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it,” because “the Act of Congress may touch a field in which the federal interest is so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject,” or because “the object sought to be obtained by the federal law and the character of obligations imposed by it may reveal the same purpose.” Fidelity Federal Savings & Loan Association v. De la Cuesta, 458 U.S. 141, 153,102 S.Ct. 3014, 3022, 73 L.Ed.2d 664 (1982) (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 1152, 91 L.Ed. 1447 (1947)). Second, in those instances where Congress has not wholly superceded state regulation in a specific area, state law is preempted “to the extent that it actually conflicts with federal law.” Pacific Gas & Electric Co. v. Energy Resources Conservation & Development Commission, 461 U.S. 190, 204, 103 S.Ct. 1713, 1722, 75 L.Ed.2d 752 (1982). The Court has stated that such conflict arises when “compliance with both federal and state regulations is a physical impossibility,” Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142-43, 83 S.Ct. 1210, 1217-18, 10 L.Ed.2d 248 (1963), or where state law “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Hines v. Davidowitz, 312 U.S. 52, 67, 61 S.Ct. 399, 404," }, { "docid": "16721410", "title": "", "text": "a state legislates in a field that Congress intended to occupy totally and when the state and federal laws actually conflict. Any state law intruding upon an area that Congress intended to control exclusively is preempted, “whether Congress’ command is explicitly stated in the statute’s language or implicitly contained in its structure and purpose.” Jones v. Rath Packing Co., 430 U.S. 519, 525, 97 S.Ct. 1305, 1309, 51 L.Ed.2d 604 (1977). Absent explicit preemption language, congressional intent to occupy the field regulated may nevertheless be inferred on the basis of the pervasiveness of the federal scheme, the dominance of the federal interest involved or because the federal statute in combination with the nature of its directives reveals the purpose to preclude state action. Fidelity Federal Savings & Loan Association v. de la Cuesta, 458 U.S. 141, 153, 102 S.Ct. 3014, 3022, 73 L.Ed.2d 664 (1982); Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 1152, 91 L.Ed. 1447 (1947). “Even where Congress has not entirely displaced state regulation in a specific area, state law is pre-empted to the extent that it actually conflicts with federal law.” Pacific Gas & Electric Co. v. State Energy Resources Conservation & Development Commission, 461 U.S. 190, 204, 103 S.Ct. 1713, 1722, 75 L.Ed.2d 752 (1983). An actual conflict exists “when it is impossible to comply with both state and federal law, Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142-143 [83 S.Ct. 1210, 1217, 10 L.Ed.2d 248] (1963), or where the state law stands as an obstacle to the accomplishment of the full purposes and objectives of Congress, Hines v. Davi-dowitz, 312 U.S. 52, 67 [61 S.Ct. 399, 404, 85 L.Ed. 581] (1941).” Silkwood v. Kerr-McGee Corp., — U.S.-,-, 104 S.Ct. 615, 621, 78 L.Ed.2d 443 (1984). Moreover, preemption is compelled not only when the conflict involves a federal statute, but also when it involves valid federal regulations. Provided that they are reasonable exercises of an agency’s duly authorized discretion and not in conflict with congressional intent, United States v. Shimer, 367 U.S. 374, 381-82, 81 S.Ct." }, { "docid": "2473186", "title": "", "text": "to have pre-empt-ed” includes areas that have “been traditionally occupied by the States,” congressional intent to supersede state laws must be “ ‘clear and manifest.’ ” Jones v. Rath Packing Co., 430 U.S. 519, 525, 97 S.Ct. 1305, 1309, 51 L.Ed.2d 604 (1977), quoting Rice v. Santa Fe Elevator Corp., 331 U.S., at 230, 67 S.Ct., at 1152. Finally, state law is pre-empted to the extent that it actually conflicts with federal law. Thus, the Court has found pre-emption where it is impossible for a private party to comply with both state and federal requirements, see, e.g., Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142-143, 83 S.Ct. 1210, 1217-1218, 10 L.Ed.2d 248 (1963), or where state law “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Hines v. Davidowitz, 312 U.S. 52, 67, 61 S.Ct. 399, 404, 85 L.Ed. 581 (1941). See also Maryland v. Louisiana, 451 U.S. 725, 747, 101 S.Ct. 2114, 2129, 68 L.Ed.2d 576 (1981). English v. General Electric Co., 496 U.S. 72, 78-79, 110 S.Ct. 2270, 110 L.Ed.2d 65 (1990) (footnote omitted). Analysis HCC’s effort to demonstrate federal preemption of the KCPA falls decidedly short of the court’s briefing expectations. Stapling a copy of the Federal Communications’ seventy-four page publication titled FCC-96-328, Report and Order, Memorandum Opinion and Order, and Further Notice or Proposed Rulemaking and simply asserting that those federal regulations preempt state consumer protection laws regarding the purchase of the defendant’s satellite equipment hardly satisfies the defendant’s burden of demonstrating that this case is properly removed to federal court on the basis of federal question jurisdiction. Moreover, the specific issue ostensibly raised by HCC is apparently one of first impression. In fact, this court could find no case, state or federal, available on Westlaw which even contains a citation to this regulation. The federal regulation relied upon by HCC in support of its preemption argument is apparently 47 C.F.R. § 1.4000. That regulation was formulated by the Federal Communications Commission as directed by Congress in Section 207 of the Telecommunications Act of" }, { "docid": "18713219", "title": "", "text": "Clean Water Act replaced the federal common law because, “it is for Congress, not federal courts, to articulate the appropriate standards to be applied.” Id. See also Middlesex County Sewerage Authority v. National Sea Clammers Association, 453 U.S. 1, 101 S.Ct. 2615, 69 L.Ed.2d 435 (1981). A validly enacted federal law can, of course, preempt any state law, including a provision of a state constitution in proper instances. Federal Land Bank of St. Louis v. Wilson, 719 F.2d 1367 (8th Cir. 1983); see also Ray v. Atlantic Richfield Co., 435 U.S. 151, 98 S.Ct. 988, 55 L.Ed.2d 179 (1978); Jones v. Rath Packing Co., 430 U.S. 519, 97 S.Ct. 1305, 51 L.Ed.2d 604 (1977); Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 83 S.Ct. 1210, 10 L.Ed.2d 248 (1963). Before the Supreme Court finds that state law has been preempted, however, a clear and manifest congressional purpose must be found, and the Court’s analysis includes due regard for the concepts of federalism. Milwaukee II, 451 U.S. at 316-17, 101 S.Ct. at 1792; Rath Packing, 430 U.S. at 525, 97 S.Ct. at 1309. We see nothing in the Clean Water Act that presages a congressional intent to occupy the entire field of water pollution to the exclusion of state regulation. The Act specifically provides that pollution be controlled by state law if that law satisfies the federal act. South Carolina has adopted just such a statute, the South Carolina Pollution Control Act, S.C.Code Ann. § 48-1-10 et seq. (Law.Co-op.1976). The Sewer Authority would have us hold that the South Carolina statute supplants state common law remedies in a fashion analogous to the reasoning in Milwaukee II. The Authority’s argument, however, fails to adequately address the fact that in developing its regulatory scheme, South Carolina has specifically preserved remediés other than those provided by the state statute. Section 48-1-240 of the South Carolina Act provides: It is the purpose of this chapter to provide additional and cumulative remedies to abate the pollution of the air and waters of the State and nothing herein contained shall abridge or alter rights" }, { "docid": "297760", "title": "", "text": "ordained’ that its enactments alone are to regulate a [subject, and] state laws regulating that [subject] must fall.” Jones v. Rath Packing Co., 430 U.S. 519, 525, 97 S.Ct. 1305, 51 L.Ed.2d 604 (1977) (quoting Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142, 83 S.Ct. 1210, 10 L.Ed.2d 248 (1963)). Implied preemption is more elusive; that concept “has a certain protean quality, which renders pigeonholing difficult.” French v. Pan Am Express, Inc., 869 F.2d 1, 2 (1st Cir.1989). Generally speaking, implied preemption encompasses both “field” and “conflict” preemption principles. The former set of principles reflects the view that Congress’s intent to occupy a given field can be inferred from the pervasiveness of federal regulation and/or the dominance of the federal interest in a particular area of legislative activity. See Rice, 331 U.S. at 230, 67 S.Ct. 1146; French, 869 F.2d at 2. By contrast, the latter set of principles reflects the idea that congressional intent also can be deduced from circumstances such as inconsistency or impossibility. See Gade v. National Solid Wastes Mgmt. Ass’n, 505 U.S. 88, 98, 112 S.Ct. 2374, 120 L.Ed.2d 73 (1992) (plurality op.). The Court recently offered additional guidance on the proper approach to statutes that include explicit preemption language. In Medtronic, Inc. v. Lohr, 518 U.S. 470, 116 S.Ct. 2240, 135 L.Ed.2d 700 (1996), the Justices explained that although an express preemption clause may indicate congressional intent to preempt “at least some state law,” courts nonetheless must “identify the domain expressly pre-empted by that language.” Id. at 484, 116 S.Ct. 2240 (citation and internal quotation marks omitted). Two presumptions inform the process of determining the scope of an express preemption clause. First, the familiar assumption that preemption will not lie absent evidence of a clear and manifest congressional purpose must be applied not only when answering the threshold question of whether Congress intended any preemption to occur, but also when measuring the reach of an explicit preemption clause. See id. at 485, 116 S.Ct. 2240. Second, while the scope determination must be anchored in the text of the express preemption clause," }, { "docid": "8348930", "title": "", "text": "in our dual-sovereignty governmental system. The leading case for this proposition is Jones v. Rath Packing Co., 430 U.S. 519, 97 S.Ct. 1305, 51 L.Ed.2d 604 (1977). In this case, the court had to decide whether a state’s packaging laws were preempted by federal laws regulating net-weight labeling. The Court stated the parameters of preemption analysis as follows: Where, as here, the field which Congress is said to have pre-empted has been traditionally occupied by the States, see, e.g., U.S. Const., Art. I, § 10; Patapsco Guano Co. v. North Carolina, 171 U.S. 345, 358 [18 S.Ct. 862, 867, 43 L.Ed. 191] (1898), “we start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.” Rice v. Santa Fe Elevator Corp. 331 U.S. 218, 230 [67 S.Ct. 1146, 1152, 91 L.Ed. 1447] (1947). This assumption provides assurance that “the federal-state balance,” United States v. Bass, 404 U.S. 336, 349 [92 S.Ct. 515, 523, 30 L.Ed.2d 488] (1971), will not be disturbed unintentionally by Congress or unnecessarily by the courts. But when Congress has “unmistakably ... ordained,” Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142 [83 S.Ct. 1210, 1217, 10 L.Ed.2d 248] (1963), that its enactments alone are to regulate a part of commerce, state law regulating that aspect of commerce must fall. This result is compelled whether Congress’ command is explicitly stated in the statute’s language or implicitly contained in its structure and purpose. Id. 430 U.S. at 525, 97 S.Ct. at 1309, 51 L.Ed.2d at 614. See also California v. ARC America Corp., - U.S. -, -, 109 S.Ct. 1661, 1665, 104 L.Ed.2d 86, 94-95 (1989). As indicated in the last sentence of the quotation from the Rath Packing case, the caution which a federal court should exercise in dealing with preemption involving federal and state authorities does not prevent a finding of preemption where the Congressional intent is clear. The Su preme Court has squarely held that express preemption found in a federal statute" }, { "docid": "6255700", "title": "", "text": "effect of requiring all manufacturers to install air bags or face the possibility of enormous tort liability. Nor does this Court equate common law tort liability with the state law standards preempted by Section 1392(d). This reasoning is contrary to the language and legislative history of the Safety Act which demonstrates Congress’ express intention to preserve common law remedies. Implied Preemption Preemption may be either express or implied, and “is compelled whether Congress’ command is explicitly stated in the statute’s language or implicitly contained in its structure or purpose.” Jones v. Rath Packing Co., 430 U.S. 519, 525, 97 S.Ct. 1305, 1309, 51 L.Ed.2d 604 (1977). Even where Congress has not completely displaced state law in a specific area, state law is nullified to the extent it actually conflicts with federal law. A conflict arises when compliance with federal and state regulations is physically impossible, Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142-43, 83 S.Ct. 1210, 1217-18, 10 L.Ed.2d 248 (1963), or when state law stands as an obstacle to the accomplishment of congressional purposes. Hines v. Davidowitz, 312 U.S. 52, 67, 61 S.Ct. 399, 404, 85 L.Ed. 581 (1941). Ford argues Plaintiff’s claim conflicts with numerous federal purposes and policies of the Safety Act, and the regulations contained in safety Standard 208. Defendant argues that air bag “requirements” based on state tort law would frustrate Congress’ purpose to provide manufacturers flexibility in developing safety technology, and destroy the uniformity goal established by Congress. Ford does not argue that Congress occupies the entire field of automotive safety or that upholding Plaintiffs common law cause of action would make compliance with Standard 208 impossible. Ford’s argument that Plaintiffs claim is implicitly preempted is based on the same flawed assumption as its express preemption argument, namely, that a state tort damage award “compels” a manufacturer to install passive restraints. Ford relies on Baird, where the court held that the plaintiffs “air bag claim” was impli-' edly preempted because it frustrated the purposes of the Safety Act. The court found that such a claim frustrated Congress’ intent to provide" }, { "docid": "297759", "title": "", "text": "576 (1981); Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 210-11, 6 L.Ed. 23 (1824); M’Culloch v. Maryland, 17 U.S. (4 Wheat.) 316, 427, 4 L.Ed. 579 (1819); Greenwood Trust Co. v. Massachusetts, 971 F.2d 818, 822 (1st Cir.1992). Preemption is strong medicine. Thus, although the power to preempt is absolute, its exercise is not lightly to be presumed. See Gregory v. Ashcroft, 501 U.S. 452, 460, 111 S.Ct. 2395, 115 L.Ed.2d 410 (1991). Rather, courts “start with the assumption that the historic police powers of the States [are] not to be superseded by ... Federal Act unless that [is] the clear and manifest purpose of Congress.” Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 91 L.Ed. 1447 (1947). It follows inexorably that congressional intent stands at the base of all preemption analysis. See Cipollone v. Liggett Group, Inc., 505 U.S. 504, 516, 112 S.Ct. 2608, 120 L.Ed.2d 407 (1992). The Supreme Court generally distinguishes between express and implied theories of preemption. Express preemption occurs “when Congress has ‘unmistakably ... ordained’ that its enactments alone are to regulate a [subject, and] state laws regulating that [subject] must fall.” Jones v. Rath Packing Co., 430 U.S. 519, 525, 97 S.Ct. 1305, 51 L.Ed.2d 604 (1977) (quoting Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142, 83 S.Ct. 1210, 10 L.Ed.2d 248 (1963)). Implied preemption is more elusive; that concept “has a certain protean quality, which renders pigeonholing difficult.” French v. Pan Am Express, Inc., 869 F.2d 1, 2 (1st Cir.1989). Generally speaking, implied preemption encompasses both “field” and “conflict” preemption principles. The former set of principles reflects the view that Congress’s intent to occupy a given field can be inferred from the pervasiveness of federal regulation and/or the dominance of the federal interest in a particular area of legislative activity. See Rice, 331 U.S. at 230, 67 S.Ct. 1146; French, 869 F.2d at 2. By contrast, the latter set of principles reflects the idea that congressional intent also can be deduced from circumstances such as inconsistency or impossibility. See Gade v. National Solid" }, { "docid": "6439034", "title": "", "text": "date subsections (a) and (b) become effective may be construed to prohibit any person from purchasing, holding, selling, or otherwise dealing with gold in the United States or abroad.” Plaintiffs’ argument on this issue is not persuasive. In Ray v. Atlantic Richfield Co., 435 U.S. 151, 98 S.Ct. 988, 55 L.Ed.2d 179 (1978), the United States Supreme Court stated: “The Court’s prior cases indicate that when a State’s exercise of its police power is challenged under the Supremacy Clause, ‘we start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.’ Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 [67 S.Ct. 1146, 1152, 91 L.Ed. 1447] (1947); Jones v. Rath Packing Co., 430 U.S. 519, 525 [97 S.Ct. 1305, 1309, 51 L.Ed.2d 604] (1977). . . .” 435 U.S. at 157, 98 S.Ct. at 994. A state statute will fall if it is in direct conflict with national legislation [see generally, Alabama State Federation of Labor v. McAdory, 325 U.S. 450, 65 S.Ct. 1384, 89 L.Ed. 1725 (1945)], or the United States has clearly pre-empted a given field [see Florida Lime & Avocado Growers v. Paul, 373 U.S. 132, 83 S.Ct. 1210, 10 L.Ed.2d 248 (1963)], or state law obstructs the execution of the full purpose and objectives of Congress [Jones v. Rath Packing Co., 430 U.S. 519, 97 S.Ct. 1305, 51 L.Ed.2d 604 (1977)]. Here, none of those considerations are present. The Act does not prohibit the holding, selling or othérwise dealing with gold. The Act merely regulates those persons or entities which engage in the sale of precious metals, of which one is gold. Further, there is no indication the Congress has pre-empted the field of regulating the sale of precious metals dealers. While the legislative history of Public Law 93-373 is sketchy, it is clear that the right to private gold ownership was not passed as a major statement of congressional policy in the field. Finally, the Precious Metals Dealers Act does not obstruct the" }, { "docid": "12110563", "title": "", "text": "not preempted. II. An analysis under the Supremacy Clause of Article VI of the Constitution must start with the basic assumption that Congress did not intend to displace state law. Maryland v. Louisiana, 451 U.S. 725, 746, 101 S.Ct. 2114, 2128, 68 L.Ed.2d 576 (1981); Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 1152, 91 L.Ed. 1447 (1947). The Supreme Court listed ways Congress may preempt state law under the Supremacy Clause. Pre-emption occurs when Congress, in enacting a federal statute, expresses a clear intent to pre-empt state law, Jones v. Rath Packing Co., 430 U.S. 519 [97 S.Ct. 1305, 51 L.Ed.2d 604] (1977), when there is outright or actual conflict between federal and state law, e.g., Free v. Bland, 369 U.S. 663 [82 S.Ct. 1089, 8 L.Ed.2d 180] (1962), where compliance with both federal and state law is in effect physically impossible, Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132 [83 S.Ct. 1210, 10 L.Ed.2d 248] (1963), where there is implicit in federal law a barrier to state regulation, Shaw v. Delta Air Lines, Inc., 463 U.S. 85 [103 S.Ct. 2890, 77 L.Ed.2d 490] (1983), where Congress has legislated comprehensively, thus occupying an entire field of regulation and leaving no room for the States to supplement federal law, Rice v. Santa Fe Elevator Corp., 331 U.S. 218 [67 S.Ct. 1146, 91 L.Ed. 1447] (1947), or where the state law stands as an obstacle to the accomplishment and execution of the full objectives of Congress. Hines v. Davidowitz, 312 U.S. 52 [61 S.Ct. 399, 85 L.Ed. 581] (1941). Pre-emption may result not only from action taken by Congress itself; a federal agency acting within the scope of its congressionally delegated authority may pre-empt state regulation. Fidelity Federal Savings & Loan Assn. v. De la Cuesta, 458 U.S. 141 [102 S.Ct. 3014, 73 L.Ed.2d 664] (1982); Capital Cities Cable, Inc. v. Crisy, 467 U.S. 691 [104 S.Ct. 2694, 81 L.Ed.2d 580] (1984). Louisiana Public Service Comm ’n v. Federal Communications Comm’n, 476 U.S. 355, 368-69, 106 S.Ct. 1890, 1898, 90 L.Ed.2d 369 (1986)." }, { "docid": "13620616", "title": "", "text": "83 S.Ct. 1441, 1445, 10 L.Ed.2d 605 (1963), and neither category of federal common law power is implicated here. Rights of contribution or indemnification in favor of Baker, Watts certainly do not involve the rights or “duties of the Federal Government, the distribution of powers in our federal system, or matters necessarily subject to federal control even in the absence of statutory authority.” Id. 451 U.S. at 642, 101 S.Ct. at 2068; Northwest Airlines, 451 U.S. at 95, 101 S.Ct. at 1582. Moreover, Congress has not vested in the federal courts the power to create a federal common law of securities regulation. A federal court’s “authority to construe a statute is fundamentally different from the authority to fashion a new rule or to provide a new remedy which Congress has decided not to adopt.” Northwest Airlines, 451 U.S. at 97, 101 S.Ct. at 1583. It is basic to our system of governance that federal courts not “fashion new remedies that might upset carefully considered legislative programs.” Id. III. In sum, we agree with the district court that Congress clearly did not provide private rights of action for contribution or indemnification in § 12(2). The lack of a federal cause of action, however, does not necessarily preclude the existence of state-law remedies. Unless preempted, plaintiff may be entitled to recover based on Maryland statutory or common law. The question of preemption is also one of congressional intent. See Malone v. White Motor Corp., 435 U.S. 497, 98 S.Ct. 1185, 55 L.Ed.2d 443 (1978). State law is preempted only when Congress acts to “occupy the field,” or when the state claims at issue actually conflict with federal law. See Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 248, 104 S.Ct. 615, 621, 78 L.Ed.2d 443 (1984). Such a conflict exists when compliance with both state and federal law is impossible, see Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142-43, 83 S.Ct. 1210, 1217-18, 10 L.Ed.2d 248 (1963), or when state law obstructs congressional objectives. See Jones v. Rath Packing Co., 430 U.S. 519, 526, 97 S.Ct. 1305, 1310, 51" }, { "docid": "948108", "title": "", "text": "apply to non-maritime federal common law. With respect to non-maritime federal common law, the Court has recently articulated a strict test for determining the preemptive effect of a federal statute. City of Milwaukee v. Illinois, 451 U.S. 304, 101 S.Ct. 1784, 68 L.Ed.2d 114 (1981). Instead of inquiring whether “Congress ha[s] affirmatively proscribed the use of federal common law,” id., 101 S.Ct. at 1791, we are to conclude that federal common law has been preempted as to every question to which the legislative scheme “spoke directly,” and every problem that Congress has “addressed.” Ibid. While federalism concerns create a presumption against preemption of state law, including state common law, id., 101 S.Ct. at 1792; Jones v. Rath Packing Co., 430 U.S. 519, 97 S.Ct. 1305, 51 L.Ed.2d 604 (1977), separation of powers concerns create a presumption in favor of preemption of federal common law whenever it can be said that Congress has legislated on the subject. Applying this test, the Court concluded in City of Milwaukee that the FWPCA preempted the federal common law of public nuisance in the area of interstate water pollution, at least to the extent of displacing the authority of a district court to impose more stringent effluent limitations upon sewer systems than those promulgated pursuant to § 301 of the Act, 33 U.S.C. § 1311 (1976). In Middlesex County Sewerage Authority v. National Sea Clammers Ass’n, 453 U.S. 1, 101 S.Ct. 2615, 69 L.Ed.2d 435 (1981), the Court more broadly characterized City of Milwaukee as a determination that “the federal common law of nuisance in the area of water pollution” has been “entirely pre-empted” by the FWPCA. Id, 101 S.Ct. at 2627. The Supreme Court has recognized, however, that the federal judiciary has a more expansive role to play in the development of maritime law than in the development of non-maritime federal common law. Texas Industries, Inc. v. Radcliff Materials, Inc., 451 U.S. 630, 640-42, 101 S.Ct. 2061, 2067, 68 L.Ed.2d 500 (1981); Northwest Airlines, Inc. v. Transport Workers Union, 451 U.S. 77, 95-97, 101 S.Ct. 1571, 1582-83, 67 L.Ed.2d 750 (1981); Halcyon Lines v." }, { "docid": "13620617", "title": "", "text": "court that Congress clearly did not provide private rights of action for contribution or indemnification in § 12(2). The lack of a federal cause of action, however, does not necessarily preclude the existence of state-law remedies. Unless preempted, plaintiff may be entitled to recover based on Maryland statutory or common law. The question of preemption is also one of congressional intent. See Malone v. White Motor Corp., 435 U.S. 497, 98 S.Ct. 1185, 55 L.Ed.2d 443 (1978). State law is preempted only when Congress acts to “occupy the field,” or when the state claims at issue actually conflict with federal law. See Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 248, 104 S.Ct. 615, 621, 78 L.Ed.2d 443 (1984). Such a conflict exists when compliance with both state and federal law is impossible, see Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142-43, 83 S.Ct. 1210, 1217-18, 10 L.Ed.2d 248 (1963), or when state law obstructs congressional objectives. See Jones v. Rath Packing Co., 430 U.S. 519, 526, 97 S.Ct. 1305, 1310, 51 L.Ed.2d 604 (1977). State law is not preempted, however, “ ‘unless that was the clear and manifest purpose of Congress.’ ” Id. at 525, 97 S.Ct. at 1309, quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 1152, 91 L.Ed. 1447 (1947). It is well-settled that federal law does not enjoy complete preemptive force in the field of securities. State securities laws exist in every state, the District of Columbia, . and Puerto Rico, and, “far from preempting the field,” Congress has expressly preserved the role of the states in securities regulation. L. Loss, Fundamentals of Securities Regulation 8 (2d ed. 1988). Section 16 of the 1933 Act, for example, provides that “[t]he rights and remedies provided by this subehapter shall be in addition to any and all other rights and remedies that may exist at law or in equity.” 15 U.S.C. § 77p. See also 15 U.S.C. § 78bb(a) (1934 Act’s authorization for concurrent state regulation in the securities field). The states enjoy broad powers to regulate such diverse" }, { "docid": "6962002", "title": "", "text": "intrastate rates of interstate rail carriers. First, to avoid complete federal preemption, a state agency must receive ICC certification of its standards and procedures. Second, to avoid ICC reversal of its decisions, a certified state agency must exercise its authority in accordance with the standards and procedures of the Interstate Commerce Act. Thus, although the Staggers Act grants the states the option of continuing to regulate intrastate rail rates, the Act is in nature a preemptive statute. If a state wishes to continue regulating, it must do so in accordance with federal policy. In concluding that the Act is preemptive, we are mindful of the clear-statement rule of statutory construction governing such a conclusion. Under this rule, a court cannot find that a federal law preempts state regulation of an activity historically regulated by the states, unless Congress has given a “clear statement” of its intent to preempt: “Where, as here, the field which Congress is said to have pre-empted has been traditionally occupied by the States, ‘we start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.’ This assumption provides assurance that ‘the federal-state balance’ will not be disturbed unintentionally by Congress or unnecessarily by the courts. But when Congress has ‘unmistakably ... ordained’ that its enactments alone are to regulate a part of commerce, state laws regulating that aspect of commerce must fall. This result is compelled whether Congress’ command is explicitly stated in the statute’s language or implicitly contained in its structure and purpose.” Jones v. Rath Packing Co., 1977, 430 U.S. 519, 525, 97 S.Ct. 1305, 1309, 51 L.Ed.2d 604 (citations omitted). Accord Florida Lime & Avocado Growers, Inc. v. Paul, 1963, 373 U.S. 132, 142, 83 S.Ct. 1210, 1217, 10 L.Ed.2d 248; California v. Zook, 1949, 336 U.S. 725, 733, 69 S.Ct. 841, 845, 93 L.Ed. 1005; Rice v. Santa Fe Elevator Corp., 1947, 331 U.S. 218, 230, 67 S.Ct. 1146, 1152, 91 L.Ed. 1447; Savage v. Jones, 1912, 225 U.S. 501, 537, 32" }, { "docid": "8348931", "title": "", "text": "488] (1971), will not be disturbed unintentionally by Congress or unnecessarily by the courts. But when Congress has “unmistakably ... ordained,” Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142 [83 S.Ct. 1210, 1217, 10 L.Ed.2d 248] (1963), that its enactments alone are to regulate a part of commerce, state law regulating that aspect of commerce must fall. This result is compelled whether Congress’ command is explicitly stated in the statute’s language or implicitly contained in its structure and purpose. Id. 430 U.S. at 525, 97 S.Ct. at 1309, 51 L.Ed.2d at 614. See also California v. ARC America Corp., - U.S. -, -, 109 S.Ct. 1661, 1665, 104 L.Ed.2d 86, 94-95 (1989). As indicated in the last sentence of the quotation from the Rath Packing case, the caution which a federal court should exercise in dealing with preemption involving federal and state authorities does not prevent a finding of preemption where the Congressional intent is clear. The Su preme Court has squarely held that express preemption found in a federal statute will be enforced notwithstanding disruption of important state interests. See Exxon Corp. v. Hunt, supra, 475 U.S. at 362, 371-74, 106 S.Ct. at 1313-15 (1986); Aloha Airlines, Inc. v. Director of Taxation, supra, 464 U.S. at 12, 104 S.Ct. at 294. Moreover, it has been held that the caution used when looking for preemptive intent is not as strong when the federal law and Constitution create a “uniquely federal interest.” In Boyle v. United Technologies Corp., 487 U.S. 500, 108 S.Ct. 2510, 101 L.Ed.2d 442 (1988), the Court found procurement of military equipment to be one of these interests. The Court stated as follows: In most fields of activity, to be sure, this Court has refused to find federal pre-emption of state law in the absence of either a clear statutory prescription, see, e.g., Jones v. Rath Packing Co., 430 U.S. 519, 525, 97 S.Ct. 1305, 1309, 51 L.Ed.2d 604 (1977); Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 1152, 91 L.Ed. 1447 (1947), or a direct conflict between federal" }, { "docid": "18713218", "title": "", "text": "discharge of alarming amounts of fecal coliform, even though installation of a $50,000 chlorinator would have brought the plant into compliance. There is no question that the Sewer Authority abused its powers and was guilty of creating a nuisance. It is equally clear that the district court correctly interpreted the decisions of the Supreme Court of South Carolina as holding the creation of such nuisances amounts to taking under Article I, section 13 of its constitution. II. The Sewer Authority contends, however, that the South Carolina regulatory scheme enacted pursuant to the authority of the Clean Water Act preempts the “common law” remedy awarded to the landowners by the district court. The Authority relies on the Supreme Court’s holding in City of Milwaukee v. Illinois, 451 U.S. 304, 101 S.Ct. 1784, 68 L.Ed.2d 114 (1981) (Milwaukee II), that there is no federal common law remedy for interstate water pollution because the Clean Water Act occupies the entire field of water pollution, insofar as federal standards are concerned. Id. at 317, 101 S.Ct. at 1792. The Clean Water Act replaced the federal common law because, “it is for Congress, not federal courts, to articulate the appropriate standards to be applied.” Id. See also Middlesex County Sewerage Authority v. National Sea Clammers Association, 453 U.S. 1, 101 S.Ct. 2615, 69 L.Ed.2d 435 (1981). A validly enacted federal law can, of course, preempt any state law, including a provision of a state constitution in proper instances. Federal Land Bank of St. Louis v. Wilson, 719 F.2d 1367 (8th Cir. 1983); see also Ray v. Atlantic Richfield Co., 435 U.S. 151, 98 S.Ct. 988, 55 L.Ed.2d 179 (1978); Jones v. Rath Packing Co., 430 U.S. 519, 97 S.Ct. 1305, 51 L.Ed.2d 604 (1977); Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 83 S.Ct. 1210, 10 L.Ed.2d 248 (1963). Before the Supreme Court finds that state law has been preempted, however, a clear and manifest congressional purpose must be found, and the Court’s analysis includes due regard for the concepts of federalism. Milwaukee II, 451 U.S. at 316-17, 101 S.Ct. at 1792;" }, { "docid": "18713220", "title": "", "text": "Rath Packing, 430 U.S. at 525, 97 S.Ct. at 1309. We see nothing in the Clean Water Act that presages a congressional intent to occupy the entire field of water pollution to the exclusion of state regulation. The Act specifically provides that pollution be controlled by state law if that law satisfies the federal act. South Carolina has adopted just such a statute, the South Carolina Pollution Control Act, S.C.Code Ann. § 48-1-10 et seq. (Law.Co-op.1976). The Sewer Authority would have us hold that the South Carolina statute supplants state common law remedies in a fashion analogous to the reasoning in Milwaukee II. The Authority’s argument, however, fails to adequately address the fact that in developing its regulatory scheme, South Carolina has specifically preserved remediés other than those provided by the state statute. Section 48-1-240 of the South Carolina Act provides: It is the purpose of this chapter to provide additional and cumulative remedies to abate the pollution of the air and waters of the State and nothing herein contained shall abridge or alter rights of action in the civil courts or remedies existing in equity or under the common law or statutory law, nor shall any provision in this chapter or any act done by virtue of this chapter be construed as estopping the State, persons or municipalities, as riparian owners or otherwise, in the exercise of their rights under the common law, statutory law or in equity to suppress nuisances or to abate any pollution, (emphasis added.) This “savings clause” is much broader and stronger than the parallel federal provision. 33 U.S.C. § 1365(e). We cannot imagine a clearer legislative expression retaining the right to remedies such as the one granted here by the district court. Neal v. Darby, 282 S.C. 277, 285, 318 S.E.2d 18, 23 (S.C.App.1984); see also Borland v. Sanders Lead Co., 369 So.2d 523 (Ala.1979). III. We are equally unimpressed with the Sewer Authority’s argument that, if there was a taking, the taking was only “temporary.” The uncontradicted evidence shows that, due to the Authority’s pollution, the lake and the land immediately surrounding it" }, { "docid": "2473185", "title": "", "text": "299, 108 S.Ct. 1145, 1150, 99 L.Ed.2d 316 (1988), and when Congress has made its intent known through explicit statutory language, the courts’ task is an easy one. Second, in the absence of explicit statutory language, state law is pre-empted where it regulates conduct in a field that Congress intended the Federal Government to occupy exclusively. Such an intent may be inferred from a “scheme of federal regulation ... so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it,” or where an Act of Congress “touch[es] a field in which the federal interest is so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject.” Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 1152, 91 L.Ed. 1447 (1947). Although this Court has not hesitated to draw an inference of field preemption where it is supported by the federal statutory and regulatory schemes, it has emphasized: “Where ... the field which Congress is said to have pre-empt-ed” includes areas that have “been traditionally occupied by the States,” congressional intent to supersede state laws must be “ ‘clear and manifest.’ ” Jones v. Rath Packing Co., 430 U.S. 519, 525, 97 S.Ct. 1305, 1309, 51 L.Ed.2d 604 (1977), quoting Rice v. Santa Fe Elevator Corp., 331 U.S., at 230, 67 S.Ct., at 1152. Finally, state law is pre-empted to the extent that it actually conflicts with federal law. Thus, the Court has found pre-emption where it is impossible for a private party to comply with both state and federal requirements, see, e.g., Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142-143, 83 S.Ct. 1210, 1217-1218, 10 L.Ed.2d 248 (1963), or where state law “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Hines v. Davidowitz, 312 U.S. 52, 67, 61 S.Ct. 399, 404, 85 L.Ed. 581 (1941). See also Maryland v. Louisiana, 451 U.S. 725, 747, 101 S.Ct. 2114, 2129, 68 L.Ed.2d 576 (1981). English v. General Electric Co.," } ]

[ { "docid": "8865240", "title": "", "text": "See Brief for Minatome at 8-15. We have articulated the following test for deciding whether a case is governed by OCSLA: [F]or adjacent state law to apply as surrogate federal law under OCSLA, three conditions are significant. (1) The controversy must arise on a situs covered by OSC-LA (i.e. the subsoil, seabed, or artificial structures permanently or temporarily attached thereto). (2) Federal maritime law must not apply of its own force. (3) The state law must not be inconsistent with Federal law. Smith v. Penrod Drilling Corp., 960 F.2d 456, 459 (5th Cir.1992) (quoting Union Texas Petroleum Corp. v. PLT Eng’g, 895 F.2d 1043, 1047 (5th Cir.), cert. denied, 498 U.S. 848, 111 S.Ct. 136, 112 L.Ed.2d 103 (1990)); see also Rodrigue v. Aetna Casualty & Surety Co., 395 U.S. 352, 355-66, 89 S.Ct. 1835, 1836-42, 23 L.Ed.2d 360 (1969). Since we conclude that maritime law applies of its own force to this maritime contract, our discussion is limited to this issue. What constitutes a maritime contract is a highly fact-specific inquiry, not determinable by rubric. Davis & Sons, Inc. v. Gulf Oil Corp., 919 F.2d 313, 316 (5th Cir.1990); see also Kossick v. United Fruit Co., 365 U.S. 731, 742, 81 S.Ct. 886, 894, 6 L.Ed.2d 56 (1961) (resorting to the observation that a contract is maritime if it has a “genuinely salty flavor”). We consider the following six factors in making this fact-specific determination: 1) what does the specific work order in effect at the time of injury provide? 2) what work did the crew assigned under the work order actually do? 3) was the crew assigned to work aboard a vessel in navigable waters? 4) to what extent did the work being done relate to the mission of that vessel? 5) what was the principal work of the injured worker? 6) what work was the injured worker actually doing at the time of the injury? Davis, 919 F.2d at 316; see also Smith, 960 F.2d at 460 (adopting Davis factors); Domingue v. Ocean Drilling & Exploration Co., 923 F.2d 393, 395-96 (5th Cir.1991) (same), cert. denied, -" } ]

[ { "docid": "9833492", "title": "", "text": "federal law of the United States, applying state law only as federal law and then only when not inconsistent with applicable federal law, is made clear by the language of the Act.” See also id. at 357, 89 S.Ct. at 1837-38 (“It is evident from this that federal law is ‘exclusive’ in its regulation of this area, and that state law is adopted only as surrogate federal law.”). To the extent that the OCSLA does not govern because a controversy arises in a particular maritime setting and bears a nexus to traditional maritime functions, maritime law controls. See Mills v. Director, 877 F.2d 356 (5th Cir.1989) (en banc) (noting that Congress enacted the OCSLA to fill the gap caused by the fact that the Outer Continental Shelf “lies beyond state boundaries”). In arriving at this reading of Domingue, we draw significant support from the statements in our prior cases suggesting that the questions of whether a contract is maritime, step one in the test articulated by the district court in this case, and of whether federal maritime law applies of its own force, factor two in the PLT three-factor test, are one and the same thing in the context of an oilfield indemnity agreement. See Wagner, 79 F.3d at 22 (“Since the contract is non-maritime, maritime law does not apply.”); Hollier v. Union Texas Petroleum Corp., 972 F.2d 662, 665 (5th Cir.1992). In addition, we note that our more recent cases omit altogether a discussion of a separate inquiry as to whether a contract is maritime or non-maritime in favor of a focus on the PLT three-part test. See, e.g., Dupre v. Penrod Drilling Corp., 993 F.2d 474, 476 (5th Cir.1993); Smith v. Penrod Drilling Corp., 960 F.2d 456, 459 (5th Cir.1992). This omission suggests that the PLT test has supplanted, not complemented, the two-step inquiry applied by the district court in this case and arguably suggested by the narrow focus of the Domingue court. It is not clear whether in Domingue the first and third elements were at issue. It is not clear whether Domingue applied, sub silentio, the" }, { "docid": "9833493", "title": "", "text": "federal maritime law applies of its own force, factor two in the PLT three-factor test, are one and the same thing in the context of an oilfield indemnity agreement. See Wagner, 79 F.3d at 22 (“Since the contract is non-maritime, maritime law does not apply.”); Hollier v. Union Texas Petroleum Corp., 972 F.2d 662, 665 (5th Cir.1992). In addition, we note that our more recent cases omit altogether a discussion of a separate inquiry as to whether a contract is maritime or non-maritime in favor of a focus on the PLT three-part test. See, e.g., Dupre v. Penrod Drilling Corp., 993 F.2d 474, 476 (5th Cir.1993); Smith v. Penrod Drilling Corp., 960 F.2d 456, 459 (5th Cir.1992). This omission suggests that the PLT test has supplanted, not complemented, the two-step inquiry applied by the district court in this case and arguably suggested by the narrow focus of the Domingue court. It is not clear whether in Domingue the first and third elements were at issue. It is not clear whether Domingue applied, sub silentio, the three-part PLT test, but addressed only the question of whether maritime law applied of its own force, an inquiry identical to whether a contract is maritime or non-maritime. We decline to read into that case an odd proposition it did not state, namely, that a finding that a contract is non-maritime compels the conclusion that state law applies of its own force in the context of oil operations conducted on the Outer Continental Shelf. The proper test for deciding whether state law provides the rule of decision in an OCSLA case remains the three-part PLT test. b The PLT test consists of three factors: “(1) The controversy must arise on a situs covered by OCSLA (i.e. the subsoil, seabed, or artificial structures permanently or temporarily attached thereto). (2) Federal maritime law must not apply of its own force. (3) The state law must not be inconsistent with Federal law.” Union Texas Petroleum Corp. v. PLT Engineering, 895 F.2d 1043, 1047 (5th Cir.), cert. denied, 498 U.S. 848, 111 S.Ct. 136, 112 L.Ed.2d 103 (1990). We" }, { "docid": "9833489", "title": "", "text": "owner’s reliance on an indemnity clause in a master agreement in response to a suit by a well-tester who was injured aboard the rig, at the time located on the Outer Continental Shelf. To decide the ease, the court relied exclusively upon its conclusion, reached after an application of the six-factor test of Davis & Sons, Inc. v. Gulf Oil Corp., 919 F.2d 313 (5th Cir.1990), that the contract was non-maritime. The opinion does not mention the OCSLA, despite the fact that the rig was jacked up on the Outer Continental Shelf and all of the activity and contractual relationships of the parties concerned the drilling operations conducted there. Although noting early in the opinion that our eases had consistently categorized jack-up rigs as vessels, 923 F.2d at 394 & n. 1, the court only mentioned “situs” twice, and on both occasions asserted the irrelevance of the place of the performance of a particular service to the determination of whether the underlying contract is maritime. See id. at 396 (“[T]he situs of performance of a wireline operation does not definitively categorize it.”); id. at 397 (referring to “the universally rejected contention of situs”). The Domingue court concluded: “[W]e hold that ... the service contract is therefore non-maritime. Accordingly, LOIA controls to invalidate the indemnity provision of the blanket contract.” 923 F.2d at 398. The absence of any mention of the OCS-LA, situs, and consistency with federal law led the district courts in this case and in Wagner v. McDermott, Inc., 899 F.Supp. 1551 (W.D.La.1994), aff'd, 79 F.3d 20 (5th Cir.1996), to suggest that perhaps the only inquiry relevant to the choice of law in matters arising out of oil exploration activities on the Outer Continental Shelf was the status of the contract as maritime or non-maritime. In essence, these lower court decisions suggested that if the contract was non-maritime, state law applied of its own force. See Wagner v. McDermott, Inc., 79 F.3d 20, 22 (5th Cir.1996) (“If the OCSLA does not apply, Louisiana law governs the dispute.”) (citing Domingue). In light of Domingue, these suggestions were understandable. The difficulty" }, { "docid": "23521151", "title": "", "text": "law under OCSLA, three conditions are significant. (1) The controversy must arise on a situs covered by OCSLA (i.e. the subsoil, seabed, or artificial structures permanently or temporarily attached thereto). (2) Federal maritime law must not apply of its own force. (3) The state law must not be inconsistent with Federal law. Smith v. Penrod Drilling Corp., 960 F.2d 456, 459 (5th Cir.1992), quoting Union Texas Petroleum Corp. v. PLT Eng’g, 895 F.2d 1043, 1047 (5th Cir.), cert. denied, — U.S. -, 111 S.Ct. 136, 112 L.Ed.2d 103 (1990); see also Rodrigue v. Aetna Cas. & Surety Co., 395 U.S. 352, 355-66, 89 S.Ct. 1835, 1837-42, 23 L.Ed.2d 360 (1969); Hollier v. Union Texas Petroleum Corp., 972 F.2d 662, 664 (5th Cir.1992). The district court focused upon the second factor of this OCSLA test — the applicability of maritime law. Applying a two-part test introduced by this court in Davis & Sons, Inc., v. Gulf Oil Corp., 919 F.2d 313 (5th Cir.1990), to determine whether a contract is maritime, the district court found that Louisiana law under the OCSLA is inapplicable because the UTP-Frank’s purchasing order constitutes a maritime contract. In Davis, we addressed whether a blanket agreement and subsequent work orders linked to offshore oil and gas production constituted a maritime contract. In finding that they did, we held that: Determination of the nature of a contract depends [A] in part on historical treatment in the jurisprudence and [B] in part on a fact-specific inquiry. We consider six factors in characterizing the contract: 1) what does the specific work order in effect at the time of injury provide? 2) what work did the crew assigned under the work order actually do? 3) was the crew assigned to work aboard a vessel in navigable waters; 4) to what extent did the work being done relate to the mission of that vessel? 5) what was the principal work of the injured worker? and 6) what work was the injured worker actually doing at the time of injury? Id. at 316. In accordance with the first part of the Davis test, the" }, { "docid": "9833487", "title": "", "text": "under a contract entered into between the parties. In particular, the contract is non-maritime.” 899 F.Supp. at 1556 (emphasis in original). The confusion inherent in our case law is evident from the Wagner district court’s heroic efforts to deal with the conflicting precedent. As we will explain, we believe the court’s focus on the Davis & Sons factors eliminates at least one area of concern, namely, the difference between deciding whether a con tract is maritime and whether maritime law applies of its own force. These two inquiries are identical in the context of oilfield indemnity disputes in the OCSLA context, and both belong as a single factor in the three part PLT test. We employ this three part test to resolve this case. We affirm the district court’s conclusion that the OCSLA’s assimilation of state law applies to this ease. a We first address the elements of the test governing whether the OCSLA applies. In particular, we discuss the relationship between the three-part test of Union Texas Petroleum Corp. v. PLT Engineering, 895 F.2d 1043 (5th Cir.), cert. denied, 498 U.S. 848, 111 S.Ct. 136, 112 L.Ed.2d 103 (1990), and the apparent short-circuit of these factors in Domingue v. Ocean Drilling & Exploration Co., 923 F.2d 393 (5th Cir.1991), cert. denied, 502 U.S. 1033, 112 S.Ct. 874, 116 L.Ed.2d 779 (1992). The PLT test was first announced in that ease in 1990 without relevant citation. The test consists of three factors: “(1) The controversy must arise on a situs covered by OCSLA (i.e. the subsoil, seabed, or artificial structures permanently or temporarily attached thereto). (2) Federal maritime law must not apply of its own force. (3) The state law must not be inconsistent with Federal law.” 895 F.2d at 1047. Since then, this court has implicitly recognized the viability of this test by employing it on several occasions. See, e.g., Smith v. Penrod Drilling Corp., 960 F.2d 456, 459 (5th Cir.1992); Hollier v. Union Texas Petroleum Corp., 972 F.2d 662, 664 (5th Cir.1992). In Domingue, however, we appeared to short-circuit this test entirely. Domingue concerned a jack-up drilling rig" }, { "docid": "9833494", "title": "", "text": "three-part PLT test, but addressed only the question of whether maritime law applied of its own force, an inquiry identical to whether a contract is maritime or non-maritime. We decline to read into that case an odd proposition it did not state, namely, that a finding that a contract is non-maritime compels the conclusion that state law applies of its own force in the context of oil operations conducted on the Outer Continental Shelf. The proper test for deciding whether state law provides the rule of decision in an OCSLA case remains the three-part PLT test. b The PLT test consists of three factors: “(1) The controversy must arise on a situs covered by OCSLA (i.e. the subsoil, seabed, or artificial structures permanently or temporarily attached thereto). (2) Federal maritime law must not apply of its own force. (3) The state law must not be inconsistent with Federal law.” Union Texas Petroleum Corp. v. PLT Engineering, 895 F.2d 1043, 1047 (5th Cir.), cert. denied, 498 U.S. 848, 111 S.Ct. 136, 112 L.Ed.2d 103 (1990). We address each element in turn. i Forest, A & A, and their insurers concentrate the brunt of their attack on the district court’s finding that the situs factor was satisfied. In particular, appellants in this portion of the case argue that Hollier v. Union Texas Petroleum Corp., 972 F.2d 662, 665 (5th Cir.1992) and Smith v. Penrod Drilling Corp., 960 F.2d 456, 459 (5th Cir.1992), established the rule that the situs of the controversy in an OCSLA indemnity clause case is the location of the underlying accident. The appellants emphasize the language in Hollier that the OCSLA situs requirement was met in that case because the injured worker “was in physical contact with the platform at the time of his injury.” 972 F.2d at 665. They then argue that this accident occurred on the MISS DEBORAH, a ship, and thus that the situs requirement is not met here. Assuming without deciding that Hollier and Smith state a rule in this circuit providing that the situs of the controversy in an OCSLA indemnity clause case is" }, { "docid": "17674332", "title": "", "text": "(situs) and step two (whether federal maritime law applies), then we erase the distinction between the two inquiries required by both the statute and PLT. Indeed, neither Davis nor any of our controlling OCSLA precedent demands a “focus-of-the-contract” analysis for § 1333(a)(2)(A)’s situs inquiry. Given that, the majority’s new test is at best redundant, at worst irrelevant. We must take care not to collapse these two distinct prongs of inquiry. In Hodgen, this court declined to “short-circuit” the situs inquiry by solely analyzing the dispute’s “focus” in determining whether OCSLA’s choice-of-law provision applied. Hodgen v. Forest Oil Corp., 87 F.3d 1512, 1525 (5th Cir.1996) (specifically rejecting the assertion that “the only inquiry relevant to the choice of law in matters arising out of oil exploration activities on the Outer Continental Shelf was the status of the contract as maritime or non-maritime,” referring to reasoning in Domingue v. Ocean Drilling & Exploration Co., 923 F.2d 393 (5th Cir.1991)). Instead, Hodgen held that “[t]he proper test for deciding whether state law provides the rule of decision in an OCSLA case remains the three-part PLT test.” Id. at 1526. As both § 1333(a)(2)(A) and the PLT test demand, this court must separate its inquiry and evaluate situs and contract status independently. It cannot be overstated that the work contemplated by the MMCSC in the instant matter is factually and legally irrelevant to the indemnity provision; the incident (injury, death, or illness) triggers the indemnity provision. That is, there is no need to analyze where the “focus of the contract” takes place, i.e., “where the contract contemplates that most of the work will be performed,” when a discrete incident — the underlying injury — precipitates an indemnity dispute. The “work” simply has no connection to a determination of whether an indemnity dispute arises on the OCS because the “work” did not trigger the dispute. What is factually and legally relevant to the indemnity provision is the “injury” to an employee covered under the MMCSC. This injury triggers the dispute. Therefore, if the underlying injury did not occur on any structure affixed to the OCS," }, { "docid": "16183410", "title": "", "text": "exclusion of \"a master or member of a crew of any vessel” from LHWCA coverage on OCSLA situses. If OCS-LA situses are never vessels, this provision would be mere surplusage. The dissent's contention that an OCSLA situs cannot be a vessel ignores these textual indications to the contrary. . 87 F.3d 1512 (5th Cir.1996). . 923 F.2d 393 (5th Cir.1991). . Id. at 395-98. Hodgen, 87 F.3d at 1525-26, notes that Domingue failed to discuss the situs requirement. . Frank’s cites a number of cases challenging this conclusion, none of which are apposite. Frank's relies on Smith v. Penrod Drilling Corp. 960 F.2d 456 (5th Cir.1992), in arguing that a vessel cannot be an OCSLA situs. The holding of Smith was that maritime law, and not Louisiana law, applied to an indemnity agreement regarding a jack-up rig. Id. at 461. This is a straightforward application of the second prong of the PLT test and has nothing to do with the question of whether jack-ups can be OCSLA situses. Indeed, Smith explicitly found that since the accident that implicated the indemnity agreement occurred on a fixed, permanent platform, it need not address the question of whether a jack-up is an OCSLA situs. Dupre v. Penrod Drilling Corp., 993 F.2d 474, 476-77 (5th Cir.1993), follows Smith in this regard and is equally distinguishable. Frank’s also cites Tennessee Gas Pipeline v. Houston Cas. Ins. Co., 87 F.3d 150, 155-56 (5th Cir.1996), for the proposition that vessels are not within the OCSLA jurisdiction for removal purposes. This claim is incorrect. Tennessee Gas Pipeline finds removal jurisdiction over maritime claims involving a fixed platform that was within OCSLA jurisdiction; it makes no claims about vessels. Frank’s claim stems from its confusion of \"vessels” with “maritime claims.” While maritime claims cannot generally be removed to federal court, claims arising under federal statute can be. While the presence of a vessel in the facts of a case may allow a plaintiff to allege claims under maritime law, the presence of a vessel does not convert other, non-maritime claims into unremovable maritime claims. . 610 F.2d 1342 (5th" }, { "docid": "8410426", "title": "", "text": "applies, as opposed to maritime law. We use a three-part test to determine whether OCSLA applies: (1) The controversy must arise on a situs covered by OCSLA (i.e. the subsoil, seabed, or artificial structures permanently or temporarily attached thereto). (2) Federal maritime law must not apply of its own force. (3) The state law must not be inconsistent with Federal law. Union Tex. Petroleum Corp. v. PLT Eng’g, Inc., 895 F.2d 1043, 1047 (5th Cir. 1990). The parties do not dispute that the controversy arose on an offshore platform and that Louisiana law is consistent with federal law. The sole issue, then, is whether maritime law applies to the contract of its own force. If so, OCSLA would not apply. Determining whether a contract is maritime is a well-trod but not altogether clear area of the law. See Hoda v. Rowan Cos., Inc., 419 F.3d 379, 380 (5th Cir.2005) (discussing whether our case law offers “the soundest jurisprudential approach” to this area of law); Planned Premium Servs. of La., Inc. v. Int’l Ins. Agents, Inc., 928 F.2d 164, 165 (5th Cir.1991) (“The waters become murky when we seek the precise parameters of a maritime contract.”); Domingue v. Ocean Drilling & Exploration Co., 923 F.2d 393, 393-94 (5th Cir.1991) (“Once more we embark on a voyage through the familiar marshland area of the law set aside for classifying the oil and gas exploration services contract as wet or dry.”). Because the general contract does not provide for specific work to be done, it and the letter agreement are considered as a single contract. See Davis & Sons, Inc. v. Gulf Oil Corp., 919 F.2d 313, 315 (5th Cir.1990). In ascertaining whether that contract is a maritime contract, we look to the “nature and subject-matter” of the contract and ask whether it has “reference to maritime service or maritime transactions.” New England Mut. Marine Ins. Co. v. Dunham, 11 Wall. 1, 78 U.S. 1, 26-27, 20 L.Ed. 90 (1870); see Exxon Corp. v. Cent. Gulf Lines, Inc., 500 U.S. 603, 611, 111 S.Ct. 2071, 114 L.Ed.2d 649 (1991) (“[T]he nature and subject-matter" }, { "docid": "17674327", "title": "", "text": "to collect unpaid invoices for the installment of a subsea pipeline and to impose a statutory lien on the pipeline under Louisiana law.” Op. at 785. The PLT court’s choice-of-law analysis was necessarily informed by where the work on the subsea line was performed because payment for that work was the central dispute. No other location logically comprises the situs of the “controversy” over breach of payment for pipeline construction. We simply do not have those facts before us in the instant indemnity matter. Neil was off duty as a platform worker when he was injured while being ferried to his residential platform. The location of his injury is not in dispute: he was on board the SEA HORSE IV. Therefore, we need look no further than the where the SEA HORSE IV was at the time of Neil’s injury to complete our situs inquiry. The parties do not contest that this vessel was on the high seas and not in contact with an OCSLA situs. Consequently, § 1333(a)(2)(A) does not permit Louisiana law, as surrogate federal law, to govern the adjudication of this dispute. Moreover, the majority’s holding improperly collapses PLTs step one inquiry (situs) into step two (whether federal maritime law applies of its own force) to form a singular test based solely on the “focus” of the dispute. We can properly consider the “nature” of the MMCSC in our § 1333(a)(2)(A) inquiry, but only in the analysis of PLT step two, to determine whether federal maritime law governs. Davis & Sons v. Gulf Oil Corp., 919 F.2d 313, 315-17 (5th Cir.1990), elucidates the proper test for determining whether a contract is maritime or non-maritime, a pertinent inquiry to the second prong of the PLT test: whether federal maritime law applies to the contract of its own force. Notably, Davis states that “[wjhether the blanket agreement and work orders, read together, do or do not constitute a maritime contract depends, as does the characterization of any other contract, on the nature and character of the contract, rather than on its place of execution or performance.” Id. at 316" }, { "docid": "9833485", "title": "", "text": "invalid because land based law, here Louisiana law, applies to the non-maritime contract even if[,] as in the case before this Court, the injury occurs on a vessel.” 899 F.Supp. at 1556 (alteration added). Understandably reluctant to rely solely on this line of reasoning in light of our case law, however, the Wagner district court went on to analyze the case in terms of the three-part test articulated in Union Texas Petroleum Corp. v. PLT Engineering, 895 F.2d 1043 (5th Cir.), cert. denied, 498 U.S. 848, 111 S.Ct. 136, 112 L.Ed.2d 103 (1990). The court noted that in Hollier v. Union Texas Petroleum Corp., 972 F.2d 662, 665 (5th Cir.1992), also an indemnity case, we decided the situs aspect of the PLT test in stating that the injured worker “was in physical contact with the platform at the time of his injury.” The Wagner district court noted that strict conformity with this phrase in Hollier would mandate a holding that the case did not arise on an OCSLA situs. The court then reasoned that, under PLT, the situs requirement in a contractual dispute “could be met when ‘[t]he locations where the substantial work pursuant to the contract was done were covered sitases.’ ” 899 F.Supp. at 1556 (quoting 895 F.2d at 1047) (alteration added). The court stated that under PLT, the situs requirement was met in the instant case because the “work required by the contract was performed on an offshore platform.” 899 F.Supp. at 1556. No discussion accompanied this statement; the justification for this conclusion was self-evident in the court’s earlier application of the Davis & Sons factors. Having noted the conflict between Union Texas and Hollier, the Wagner district court returned to the proposition it had previously labeled arguable, namely, that under Domingue Louisiana law would apply regardless of situs because the relevant contract was non-maritime. The Wagner court disposed of the second prong of the PLT test with the following two sentences: “The second factor under the [PLT] analysis is met because federal maritime law does not apply to the issue at hand, i.e., the indemnity claims" }, { "docid": "17674314", "title": "", "text": "examined the location of “substantial work” performed on the pipeline because the dispute concerned PLT’s failure to pay subcontractors who worked on that pipeline. Id. at 1047. There was no other analysis that could logically inform an OCSLA situs inquiry in that particular breach-of-contract dispute over payment for pipeline construction. This “substantial work” analysis resulted in the court’s narrow holding that § 1333(a)(2)(A) “requires the application of Louisiana state law to non-maritime contract disputes arising from the construction of a gathering line on the seabed of the outer Continental Shelf.” Mat 1045. A number of subsequent cases concerning indemnity disputes followed the three-part PLT test and concluded in each that Louisiana law would be given effect under § 1333(a)(2)(A) because the injuries occurred on the OCS. For example, in Smith v. Penrod Drilling Corp., 960 F.2d 456 (5th Cir.1992), the underlying injury was sustained by a Penrod employee working on an offshore platform affixed to the OCS. The employee was standing on the platform, leaning on horizontal fencing around the platform, in order to reach equipment on an adjacent barge. The fencing collapsed and the worker fell. The court determined that the indemnity dispute occurred on the OCS, noting that “[d]rilling platforms constitute ‘artificial islands’ under section 1333(a)(1).” Id. at 459. Because the “controversy” had a nexus with the OCS, § 1333(a)(2)(A) required application of state law as surrogate federal law over the indemnity dispute. Similarly, in Hollier v. Union Texas Petroleum Corp., 972 F.2d 662 (5th Cir.1992), a platform worker slipped between the residential boat and the platform on which he worked; he was crushed and subsequently drowned. This court noted that platforms are generally considered OCS situses and therefore found that the indemnity agreement had a geographical nexus with the OCS because “Hollier was in physical contact with the platform at the time of his injury.” Id. at 665. Likewise, Hodgen v. Forest Oil Corp., 87 F.3d 1512 (5th Cir.1996), concerned an indemnity dispute over an injury sustained by a platform worker while transferring by swing rope from a fixed platform to a nearby vessel. The worker landed" }, { "docid": "9833488", "title": "", "text": "1043 (5th Cir.), cert. denied, 498 U.S. 848, 111 S.Ct. 136, 112 L.Ed.2d 103 (1990), and the apparent short-circuit of these factors in Domingue v. Ocean Drilling & Exploration Co., 923 F.2d 393 (5th Cir.1991), cert. denied, 502 U.S. 1033, 112 S.Ct. 874, 116 L.Ed.2d 779 (1992). The PLT test was first announced in that ease in 1990 without relevant citation. The test consists of three factors: “(1) The controversy must arise on a situs covered by OCSLA (i.e. the subsoil, seabed, or artificial structures permanently or temporarily attached thereto). (2) Federal maritime law must not apply of its own force. (3) The state law must not be inconsistent with Federal law.” 895 F.2d at 1047. Since then, this court has implicitly recognized the viability of this test by employing it on several occasions. See, e.g., Smith v. Penrod Drilling Corp., 960 F.2d 456, 459 (5th Cir.1992); Hollier v. Union Texas Petroleum Corp., 972 F.2d 662, 664 (5th Cir.1992). In Domingue, however, we appeared to short-circuit this test entirely. Domingue concerned a jack-up drilling rig owner’s reliance on an indemnity clause in a master agreement in response to a suit by a well-tester who was injured aboard the rig, at the time located on the Outer Continental Shelf. To decide the ease, the court relied exclusively upon its conclusion, reached after an application of the six-factor test of Davis & Sons, Inc. v. Gulf Oil Corp., 919 F.2d 313 (5th Cir.1990), that the contract was non-maritime. The opinion does not mention the OCSLA, despite the fact that the rig was jacked up on the Outer Continental Shelf and all of the activity and contractual relationships of the parties concerned the drilling operations conducted there. Although noting early in the opinion that our eases had consistently categorized jack-up rigs as vessels, 923 F.2d at 394 & n. 1, the court only mentioned “situs” twice, and on both occasions asserted the irrelevance of the place of the performance of a particular service to the determination of whether the underlying contract is maritime. See id. at 396 (“[T]he situs of performance of a" }, { "docid": "17674328", "title": "", "text": "surrogate federal law, to govern the adjudication of this dispute. Moreover, the majority’s holding improperly collapses PLTs step one inquiry (situs) into step two (whether federal maritime law applies of its own force) to form a singular test based solely on the “focus” of the dispute. We can properly consider the “nature” of the MMCSC in our § 1333(a)(2)(A) inquiry, but only in the analysis of PLT step two, to determine whether federal maritime law governs. Davis & Sons v. Gulf Oil Corp., 919 F.2d 313, 315-17 (5th Cir.1990), elucidates the proper test for determining whether a contract is maritime or non-maritime, a pertinent inquiry to the second prong of the PLT test: whether federal maritime law applies to the contract of its own force. Notably, Davis states that “[wjhether the blanket agreement and work orders, read together, do or do not constitute a maritime contract depends, as does the characterization of any other contract, on the nature and character of the contract, rather than on its place of execution or performance.” Id. at 316 (internal quotation marks and citation omitted). To determine the “nature and character of the contract,” Davis analyzed six factors: 1) [Wjhat does the specific work order in effect at the time of injury provide? 2) [Wjhat work did the crew assigned under the work order actually do? 3) [Wjas the crew assigned to work aboard a vessel in navigable waters; 4) [Tjo what extent did the work being done relate to the mission of that vessel? 5) [Wjhat was the principal work of the injured worker? and 6) [Wjhat work was the injured worker actually doing at the time of injury? Id. These factors entail an inquiry into where the majority of a contract’s work was performed — in essence, a “focus-of-the-contract” inquiry, the very test the majority now proposes to determine whether a contract dispute occurs on an OCS situs. An evaluation of where a contract contemplates work will be performed necessitates an analysis of specific work orders, crew assignments, and whether these assignments relate to the mission of the vessel on which the" }, { "docid": "9833484", "title": "", "text": "proper way to safety, are both evident in the recent opinion in Wagner v. McDermott, Inc., 899 F.Supp. 1551 (W.D.La. 1994), aff'd, 79 F.3d 20 (5th Cir.1996). In Wagner, a platform welder employed by a service company was injured when he slipped and fell on the deck of a barge moored adjacent to the platform; the barge was used to provide a place for the platform workers to sleep and eat. The welder sued the platform owner, which sought to invoke an indemnity clause in the master contract between it and the service company. The district court first examined whether the contract was maritime under the test of Davis & Sons, Inc. v. Gulf Oil Corp., 919 F.2d 313 (5th Cir.1990), and declared the contract non-maritime. The court then relied on Domingue v. Ocean Drilling & Exploration Co., 923 F.2d 393 (5th Cir.1991), cert. denied, 502 U.S. 1033, 112 S.Ct. 874, 116 L.Ed.2d 779 (1992), to hold that “arguably” no further analysis was necessary in that “the indemnity provision involved in the instant case is invalid because land based law, here Louisiana law, applies to the non-maritime contract even if[,] as in the case before this Court, the injury occurs on a vessel.” 899 F.Supp. at 1556 (alteration added). Understandably reluctant to rely solely on this line of reasoning in light of our case law, however, the Wagner district court went on to analyze the case in terms of the three-part test articulated in Union Texas Petroleum Corp. v. PLT Engineering, 895 F.2d 1043 (5th Cir.), cert. denied, 498 U.S. 848, 111 S.Ct. 136, 112 L.Ed.2d 103 (1990). The court noted that in Hollier v. Union Texas Petroleum Corp., 972 F.2d 662, 665 (5th Cir.1992), also an indemnity case, we decided the situs aspect of the PLT test in stating that the injured worker “was in physical contact with the platform at the time of his injury.” The Wagner district court noted that strict conformity with this phrase in Hollier would mandate a holding that the case did not arise on an OCSLA situs. The court then reasoned that, under" }, { "docid": "10939900", "title": "", "text": "á “stationary jackup vessel” to a well platform. As in the instant case, the primary injury claim settled, so that only the contractual indemnity claims were before the court. The court outlined the following test to determine whether to apply the LOIA as surrogate federal law under the OCSLA: “1. The controversy must arise on a situs covered by OCSLA (i.e. the subsoil, seabed, or artificial structures permanently or temporarily attached thereto). 2. Federal maritime law must not apply of its own force. 3. The state law must not be inconsistent with federal law.” Id. at 665 (citing Smith v. Penrod Drilling Corporation, 960 F.2d 456, 459 (5th Cir.1992)). Under the first factor, the Hollier court analyzed “the controversy” to be defined by where the plaintiffs accident occurred. The Court determined that the plaintiff was in physical contact with the platform at the time of injury, thus, the first factor was met. In the case before this Court, Wagner was injured on a vessel in navigable waters. Therefore, under an Hol-lier analysis, the “controversy” did not take place on an OCSLA situs. However, under Union Texas Petroleum v. PUT Engineering, 895 F.2d 1043, 1047-48 (5th Cir.), cert. denied, 498 U.S. 848, 111 S.Ct. 136, 112 L.Ed.2d 103 (1990), the situs requirement could be met when “the locations where the substantial work pursuant to the contract was done were covered situses.... ” Thus, under Union Texas, the OCSLA situs factor is met in the instant case, as the work required by the contract was performed on an offshore platform. However, even if the OCSLA does not apply because the “controversy” took place on a vessel, nonetheless, under Domingue, Louisiana law would still apply because the contract at issue is a non-maritime contract and therefore, governed by the applicable land based law. The second factor under the Hollier analysis is met because federal maritime law does not apply to the issue at hand, i.e., the indemnity claims under a contract entered into between the parties. In particular, the contract is non-maritime. Under the third factor, the LOIA must not be inconsistent with" }, { "docid": "9833486", "title": "", "text": "PLT, the situs requirement in a contractual dispute “could be met when ‘[t]he locations where the substantial work pursuant to the contract was done were covered sitases.’ ” 899 F.Supp. at 1556 (quoting 895 F.2d at 1047) (alteration added). The court stated that under PLT, the situs requirement was met in the instant case because the “work required by the contract was performed on an offshore platform.” 899 F.Supp. at 1556. No discussion accompanied this statement; the justification for this conclusion was self-evident in the court’s earlier application of the Davis & Sons factors. Having noted the conflict between Union Texas and Hollier, the Wagner district court returned to the proposition it had previously labeled arguable, namely, that under Domingue Louisiana law would apply regardless of situs because the relevant contract was non-maritime. The Wagner court disposed of the second prong of the PLT test with the following two sentences: “The second factor under the [PLT] analysis is met because federal maritime law does not apply to the issue at hand, i.e., the indemnity claims under a contract entered into between the parties. In particular, the contract is non-maritime.” 899 F.Supp. at 1556 (emphasis in original). The confusion inherent in our case law is evident from the Wagner district court’s heroic efforts to deal with the conflicting precedent. As we will explain, we believe the court’s focus on the Davis & Sons factors eliminates at least one area of concern, namely, the difference between deciding whether a con tract is maritime and whether maritime law applies of its own force. These two inquiries are identical in the context of oilfield indemnity disputes in the OCSLA context, and both belong as a single factor in the three part PLT test. We employ this three part test to resolve this case. We affirm the district court’s conclusion that the OCSLA’s assimilation of state law applies to this ease. a We first address the elements of the test governing whether the OCSLA applies. In particular, we discuss the relationship between the three-part test of Union Texas Petroleum Corp. v. PLT Engineering, 895 F.2d" }, { "docid": "23521150", "title": "", "text": "seabed of the Outer Continental Shelf. This fact alone is enough to invoke the application of Louisiana law pursuant to the mandates of the Outer Continental Shelf Lands Act.” We disagree. The Outer Continental Shelf Lands Act (OCSLA) provides, in pertinent part, that: To the extent that they are applicable and not inconsistent with this subchapter or with other Federal laws and regulations of the Secretary now in effect or hereafter adopted, the civil and criminal laws of each adjacent State, now in effect or hereafter adopted, amended, or repealed are declared to be the law of the United States for that portion of the subsoil and seabed of the outer Continental Shelf, and artificial islands and fixed structures erected thereon, which would be within the area of the State if its boundaries were extended seaward to the outer margin of the outer Continental Shelf.... 43 U.S.C. § 1333. To decide whether state law applies under the OCSLA, this court has set forth the following test: [F]or adjacent state law to apply as surrogate federal law under OCSLA, three conditions are significant. (1) The controversy must arise on a situs covered by OCSLA (i.e. the subsoil, seabed, or artificial structures permanently or temporarily attached thereto). (2) Federal maritime law must not apply of its own force. (3) The state law must not be inconsistent with Federal law. Smith v. Penrod Drilling Corp., 960 F.2d 456, 459 (5th Cir.1992), quoting Union Texas Petroleum Corp. v. PLT Eng’g, 895 F.2d 1043, 1047 (5th Cir.), cert. denied, — U.S. -, 111 S.Ct. 136, 112 L.Ed.2d 103 (1990); see also Rodrigue v. Aetna Cas. & Surety Co., 395 U.S. 352, 355-66, 89 S.Ct. 1835, 1837-42, 23 L.Ed.2d 360 (1969); Hollier v. Union Texas Petroleum Corp., 972 F.2d 662, 664 (5th Cir.1992). The district court focused upon the second factor of this OCSLA test — the applicability of maritime law. Applying a two-part test introduced by this court in Davis & Sons, Inc., v. Gulf Oil Corp., 919 F.2d 313 (5th Cir.1990), to determine whether a contract is maritime, the district court found that Louisiana" }, { "docid": "10939899", "title": "", "text": "blanket service contract followed by an oral work order requesting wireline services on a jackup drilling rig was a non-maritime eon- tract. The plaintiff suffered injuries when he tripped and fell over a piece of equipment located on the deck of the rig. After applying the Davis factors, the court held the service contract was non-maritime. It then stated, “Accordingly, LOIA controls to invalidate the indemnity provision of the blanket contract.” Id. at 398. Therefore, under Do-mingue, arguably, the indemnity provision involved in the instant case is invalid because land based law, here Louisiana law, applies to the non-maritime contract even if as in the ease before this Court, the injury occurs on a vessel. However, the Fifth Circuit has also applied the LOIA as surrogate federal law under the OCSLA when the OCSLA applies. For instance, in Hollier v. Union Texas Petroleum Corp., 972 F.2d 662 (5th Cir.1992), the Fifth Circuit held that Louisiana law applied and, therefore, the LOIA applied through the OCSLA. In that case, the plaintiff was killed while transferring from á “stationary jackup vessel” to a well platform. As in the instant case, the primary injury claim settled, so that only the contractual indemnity claims were before the court. The court outlined the following test to determine whether to apply the LOIA as surrogate federal law under the OCSLA: “1. The controversy must arise on a situs covered by OCSLA (i.e. the subsoil, seabed, or artificial structures permanently or temporarily attached thereto). 2. Federal maritime law must not apply of its own force. 3. The state law must not be inconsistent with federal law.” Id. at 665 (citing Smith v. Penrod Drilling Corporation, 960 F.2d 456, 459 (5th Cir.1992)). Under the first factor, the Hollier court analyzed “the controversy” to be defined by where the plaintiffs accident occurred. The Court determined that the plaintiff was in physical contact with the platform at the time of injury, thus, the first factor was met. In the case before this Court, Wagner was injured on a vessel in navigable waters. Therefore, under an Hol-lier analysis, the “controversy” did" }, { "docid": "17674331", "title": "", "text": "extent Neil’s work related to the mission of the SEA HORSE IV, Neil’s principal work, and what work (if any) Neil was doing at the time of the accident. That is, the district court employed a Davis inquiry, to determine not whether federal maritime law applies of its own force to a contract, but rather to come to the conclusion that Neil was injured on an OCS situs. The majority now adopts the district court’s misplaced Naws-factor OCSLA situs analysis and “agree[sj with the district court that the indemnity dis pute in this case arose on an OCSLA situs because it is uncontested that a majority, if not all, of the work called for under the contract [MMCSC] was to be performed on stationary platforms on the OCS.” Op. at 789. The majority reaches this conclusion notwithstanding that the injury that is the basis of the indemnification action is wholly unrelated to any work being performed under the MMCSC. However, if we examine the “nature and character of the contract” at both PLT step one (situs) and step two (whether federal maritime law applies), then we erase the distinction between the two inquiries required by both the statute and PLT. Indeed, neither Davis nor any of our controlling OCSLA precedent demands a “focus-of-the-contract” analysis for § 1333(a)(2)(A)’s situs inquiry. Given that, the majority’s new test is at best redundant, at worst irrelevant. We must take care not to collapse these two distinct prongs of inquiry. In Hodgen, this court declined to “short-circuit” the situs inquiry by solely analyzing the dispute’s “focus” in determining whether OCSLA’s choice-of-law provision applied. Hodgen v. Forest Oil Corp., 87 F.3d 1512, 1525 (5th Cir.1996) (specifically rejecting the assertion that “the only inquiry relevant to the choice of law in matters arising out of oil exploration activities on the Outer Continental Shelf was the status of the contract as maritime or non-maritime,” referring to reasoning in Domingue v. Ocean Drilling & Exploration Co., 923 F.2d 393 (5th Cir.1991)). Instead, Hodgen held that “[t]he proper test for deciding whether state law provides the rule of decision in" } ]

[ { "docid": "22693201", "title": "", "text": "Appeals affirmed. We granted Jones’ petition for certiorari, 425 U. S. 933 (1976), and now affirm the judgments of the Court of Appeals. I In its present posture, this litigation contains no claim that the Constitution alone denies California power to enact the challenged provisions. We are required to decide only whether the federal laws which govern respondents’ packing operations preclude California from enforcing § 12211, as implemented by Art. 5. Our prior decisions have clearly laid out the path we must follow to answer this question. The first inquiry is whether Congress, pursuant to its power to regulate commerce, U. S. Const., Art. 1, § 8, has prohibited state regulation of the particular aspects of commerce involved in this case. Where, as here, the field which Congress is said to have pre-empted has been traditionally occupied by the States, see, e. g., U. S. Const., Art. I, § 10; Patapsco Guano Co. v. North Carolina, 171 U. S. 345, 358 (1898), “we start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.” Rice v. Santa Fe Elevator Corp., 331 U. S. 218, 230 (1947). This assumption provides assurance that “the federal-state balance,” United States v. Bass, 404 U. S. 336, 349 (1971), will not be disturbed unintentionally by Congress or unnecessarily by the courts. But when Congress has “unmistakably . . . ordained,” Florida Lime & Avocado Growers, Inc. v. Paul, 373 U. S. 132, 142 (1963), that its enactments alone are to regulate a part of commerce, state laws regulating that aspect of commerce must fall. This result is compelled whether Congress’ command is explicitly stated in the statute’s language or implicitly contained in its structure and purpose. City of Burbank v. Lockheed Air Terminal, Inc., 411 U. S. 624, 633 (1973); Rice v. Santa Fe Elevator Corp., supra, at 230. Congressional enactments that do not exclude all state legislation in the same field nevertheless override state laws with which they conflict. U. S. Const., Art. VI." } ]

[ { "docid": "21895883", "title": "", "text": "may be resolved “on the basis of the summary judgment evidence available.” Trans World Airlines, Inc. v. Morales, 949 F.2d 141, 145 (5th Cir.1991) (per curiam), aff'd in part, rev’d in part, — U.S. -, 112 S.Ct. 2031, 119 L.Ed.2d 157 (1992). II. Preemption Generally The Supremacy Clause of the Constitution provides: [t]his Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. Article VI, cl. 2. Any state law that conflicts with federal law is “without effect.” Maryland v. Louisiana, 451 U.S. 725, 746, 101 S.Ct. 2114, 2129, 68 L.Ed.2d 576 (1981) (citing McCulloch v. Maryland, 4 Wheat 316, 427, 4 L.Ed. 579 (1819) (other citations omitted)). To avoid “unintended encroachment on the authority of the States, however, a court interpreting a federal statute pertaining to a subject traditionally governed by state law will be reluctant to find pre-emption.” CSX Transportation, Inc. v. Easterwood, — U.S. -, -, 113 S.Ct. 1732, 1737, 123 L.Ed.2d 387 (1993). The assumption that the historic police powers of the States are not to be preempted by a federal statute is overcome on a showing that such a result is the “clear and manifest purpose of Congress.” Cipollone v. Liggett Group, Inc., — U.S. -, -, 112 S.Ct. 2608, 2617, 120 L.Ed.2d 407 (1992) (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 1152, 91 L.Ed. 1447 (1947)). The “ultimate touchstone” of preemption analysis is the purpose of Congress. Id. (quotation omitted). Preemption may be express, or implied from the structure and purpose of a statute. Gade v. National Solid Wastes Management Ass’n, — U.S. -, -, 112 S.Ct. 2374, 2383, 120 L.Ed.2d 73 (1992) (quotation omitted). In the absence of express preemption, implied preemption may be found in two ways. The first type of implied" }, { "docid": "8517090", "title": "", "text": "Parity Act authorizes non-federally chartered housing creditors to “make, purchase, and enforce alternative mortgage transactions” when those transactions are made “in accordance with regulations governing alternative mortgage transactions as issued by the Director of the Office of Thrift Supervision.” Id. § 3803(a). In a section entitled “Preemption of State constitutions, laws, or regulations,” the Parity Act provides that “[a]n alternative mortgage transaction may be made by a housing creditor in accordance with this section, notwithstanding any State constitution, law, or regulation.” Id. § 3803(c). Quicken asserts that the district court erred in holding that the Parity Act does not preempt the California per diem statutes as applied to alternative mortgage transactions. Quicken makes two arguments: (1) the per diem statutes are preempted because they conflict with an OTS regulation on adjustments and (2) the per diem statutes are expressly preempted because they destroy parity between federally and non-federally chartered lenders. The Supremacy Clause provides that federal laws “shall be the supreme Law of the Land; ... any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” U.S. Const. Art. VI, cl. 2. Preemption analysis must “start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.” Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 91 L.Ed. 1447 (1947). “The purpose of Congress is the ultimate touchstone of preemption analysis.” Cipollone v. Liggett Group, 505 U.S. 504, 516, 112 S.Ct. 2608, 120 L.Ed.2d 407 (1992) (internal quotation marks omitted). State law is preempted if Congress’ intent to preempt is (1) explicit in the federal statute’s language or (2) implicit in its structure and purpose; (3) if state law actually conflicts with federal law; or (4) if federal law so thoroughly occupies the legislative field that Congress left no room for state regulation. Id. Conflict preemption exists “where ‘compliance with both federal and state regulations is a physical impossibility,’ or where state law ‘stands as an obstacle to the accomplishment and execution of" }, { "docid": "18190434", "title": "", "text": "of this Court’s retention of supplemental jurisdiction. The Court therefore accepts supplemental jurisdiction over the question of preemption as well as all state and common law claims that are not deemed preempted by federal law. See Axess Intern., Ltd. v. Intercargo Ins. Co., 183 F.3d 935, 943 (9th Cir.1999) (a district court lacks the power to adjudicate affirmative defense of preemption if it declines to exercise supplemental jurisdiction over state law claims). IV. Federal Preemption of State and Common Laiu Claims The Supremacy Clause of the United States Constitution provides that federal law “shall be the supreme Law of the Land; ... any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” U.S. Const. Art. VI, cl. 2. Accordingly, “[u]nder the doctrine of preemption, a corollary to the Supremacy Clause, any state or municipal law that is inconsistent with federal law is without effect.” Greater New York Metro. Food Council, Inc. v. Giuliani, 195 F.3d 100, 104-05 (2d Cir.1999) (abrogated on other grounds); see also Cipollone v. Liggett Group, Inc., 505 U.S. 504, 516, 112 S.Ct. 2608, 120 L.Ed.2d 407 (1992) (“state law that conflicts with federal law is ‘without effect’ ”). In light of principles of federalism, there is, however, a presumption against preemption. See New York State Conf. of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645, 654, 115 S.Ct. 1671, 131 L.Ed.2d 695 (1995). “Consideration of issues arising under the Supremacy Clause start[s] with the assumption that the historic police powers of the States [are] not to be superseded by ... Federal Act unless that [is] the clear and manifest purpose of Congress.” Cipollone, 505 U.S. at 516, 112 S.Ct. 2608, 120 L.Ed.2d 407 (1992) (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 91 L.Ed. 1447 (1947) (internal quotation marks omitted)). Congressional intent is therefore “the ultimate touchstone of pre-emption analysis.” Id.; see also FMC Corp. v. Holliday, 498 U.S. 52, 56, 111 S.Ct. 403, 112 L.Ed.2d 356 (1990) (“In determining whether federal law preempts a state statute, we look to congressional" }, { "docid": "22091067", "title": "", "text": "appellants’ career fraud claims are not preempted because the appellants were never subject to FLSA’s anti-retaliation provision. We also find that the appellants’ career fraud claims are not barred by the statute of limitations and are not too vague to state a claim. In light of our ruling on preemption, we will not address whether the district court erred in not allowing the appellants leave to amend their complaint. A. Preemption Article VI of the Constitution provides that the laws of the United States “shall be the supreme Law of the Land; ... any Thing in the Constitution or laws of any state to the Contrary notwithstanding.” U.S. Const, art. VI, cl.2. “Consideration of the issues arising under the Supremacy Clause ‘start[s] with the assumption that the historic police powers of the states [are] not to be superseded by ... Federal Act unless that [is] the clear and manifest purpose of Congress.’ ” Cipollone v. Liggett Group, Inc., 505 U.S. 504, 516, 112 S.Ct. 2608, 120 L.Ed.2d 407 (1992) (plurality) (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 91 L.Ed. 1447 (1947)). The Ninth Circuit has based its preemption analysis on the Supreme Court’s three categories: (1) express preemption — “where Congress explicitly defines the extent to which its enactments preempt state law”; (2) field preemption— “where state law attempts to regulate conduct in a field that Congress intended the federal law exclusively to occupy”; and (3) conflict preemption — “where it is impossible to comply with both state and federal requirements, or where state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Industrial Truck Ass’n, Inc. v. Henry, 125 F.3d 1305, 1309 (9th Cir.1997) (citing English v. General Elec. Co., 496 U.S. 72, 78-80, 110 S.Ct. 2270, 110 L.Ed.2d 65 (1990)). Although we adhered to this categorical framework in Industrial Truck, we recognized that the categories are not “ ‘rigidly distinct.’ ” Industrial Truck, 125 F.3d at 1309 (quoting English, 496 U.S. at 79 n. 5, 110 S.Ct. 2270). In Cipollone, a plurality" }, { "docid": "297758", "title": "", "text": "42 C.F.R. § 422.402 (1998)). This rule remains in effect. See 64 Fed. Reg. 7968 (Feb. 17, 1999). Massachusetts promptly proclaimed that it would defy the federal regulation and continue to enforce its drug-benefit requirement “absent a judicial determination that any state law is preempted.” Bulletin No. 98-07 (July 20, 1998). The Commonwealth’s intransigence led the Massachusetts Association of HMOs (the Association) to seek a declaration that the BBA and the Secretary’s rule preempt the Commonwealth’s full drug coverage requirement. The federal district court obliged. The Commissioner appeals. II. ANALYSIS We begin by mapping the legal terrain and then turn to the topography of the case at hand. A. An Overview. The Supremacy Clause provides that federal law “shall be the supreme Law of the Land; ... any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” U.S. Const. art. VI, cl. 2. By virtue of this commandment, state law that conflicts with federal law is a nullity. See Maryland v. Louisiana, 451 U.S. 725, 746, 101 S.Ct. 2114, 68 L.Ed.2d 576 (1981); Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 210-11, 6 L.Ed. 23 (1824); M’Culloch v. Maryland, 17 U.S. (4 Wheat.) 316, 427, 4 L.Ed. 579 (1819); Greenwood Trust Co. v. Massachusetts, 971 F.2d 818, 822 (1st Cir.1992). Preemption is strong medicine. Thus, although the power to preempt is absolute, its exercise is not lightly to be presumed. See Gregory v. Ashcroft, 501 U.S. 452, 460, 111 S.Ct. 2395, 115 L.Ed.2d 410 (1991). Rather, courts “start with the assumption that the historic police powers of the States [are] not to be superseded by ... Federal Act unless that [is] the clear and manifest purpose of Congress.” Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 91 L.Ed. 1447 (1947). It follows inexorably that congressional intent stands at the base of all preemption analysis. See Cipollone v. Liggett Group, Inc., 505 U.S. 504, 516, 112 S.Ct. 2608, 120 L.Ed.2d 407 (1992). The Supreme Court generally distinguishes between express and implied theories of preemption. Express preemption occurs “when Congress has ‘unmistakably ..." }, { "docid": "17342723", "title": "", "text": "Land; ... any Thing in the Constitution or Laws of any state to the Contrary notwithstanding.” U.S. Const, art. VI, cl. 2. Consistent with the Supremacy Clause, the Supreme Court has “long recognized that state laws that conflict with federal law are ‘without effect.’ ” Altria Grp., Inc. v. Good, 555 U.S. 70, 75, 129 S.Ct. 538, 172 L.Ed.2d 398 (2008)(quoting Maryland v. Louisiana, 451 U.S. 725, 746, 101 S.Ct. 2114, 68 L.Ed.2d 576 (1981)). The Supreme Court has summarized the situations in which preemption is likely tó be found: Pre-emption may be either expressed or implied, and is compelled whether Congress’ command is explicitly stated in the statute’s language or implicitly contained in its structure and purpose. Absent explicit pre-emptive language, we have 'recognized at least two types of implied pre-emption: field pre-emption, where the scheme of federal regulation is so pervasive as to make’ reasonable the inference that Congress left no room for the' States to supplement it, and conflict pre-emption, where compliance with both federal and state regulations is a physical impossibility, or where state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress. Gade v. Nat’l Solid Wastes Mgmt. Assoc., 505 U.S. 88, 98, 112 S.Ct. 2374, 120 L.Ed.2d 73 (1992) (citations omitted). Preemption may be express or implied. See Gade v. Nat’l Solid Wastes Mgmt.. Assoc., 505 U.S. at 98, 112 S.Ct. 2374. When faced with express preemption—where a statute expressly states that it preempts certain areas of state law—a court must determine the scope of the preemption that Congress intended. See Medtronic, Inc. v. Lohr, 518 U.S, 470, 485, 116 S.Ct. 2240, 135 L.Ed.2d 700 (1996)(stating that “the purpose of Congress is the ultimate touch-stone in every pre-emption case”). “Congress may indicate pre-emptive intent through a statute’s express language or through its structure and purpose.” Altria Grp., Inc. v. Good, 555 U.S. at 77, 129 S.Ct. 538. When the preemption clause’s text is susceptible to more than one plausible reading, courts ordinarily “accept the reading that disfavors pre-emption.” Bates v. Dow Agrosciences, LLC, 544 U.S." }, { "docid": "15216910", "title": "", "text": "a valid federal law is “without effect.” Maryland v. Louisiana, 451 U.S. 725, 746, 101 S.Ct. 2114, 68 L.Ed.2d 576 (1981). To avoid “unintended encroachment on the authority of the States, however, a court interpreting a federal statute pertaining to a subject traditionally governed by state law will be reluctant to find pre-emption.” CSX Transp., Inc. v. Easterwood, 507 U.S. 658, 664, 113 S.Ct. 1732, 123 L.Ed.2d 387 (1993). The assumption that the historic police powers of the states are not preempted by a federal statute is overcome on a showing that such a result is the “clear and manifest purpose of Congress.” Cipollone v. Liggett Group, Inc., 505 U.S. 504, 516, 112 S.Ct. 2608, 120 L.Ed.2d 407 (1992) (citation omitted). The “ultimate touchstone” of preemption analysis is the purpose of Congress. Cipollone, 505 U.S. at 516, 112 S.Ct. 2608. Preemption may be express or implied from the structure and purpose of a statute. See Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 95, 103 S.Ct. 2890, 77 L.Ed.2d 490 (1983). Implied preemption may be found in two ways. The first type of implied preemption is field preemption, which occurs in cases where the federal regulatory scheme “is so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it.” Gade v. National Solid Wastes Mgmt. Ass’n, 505 U.S. 88, 98, 112 S.Ct. 2374, 120 L.Ed.2d 73 (1992) (citation omitted). The second type of implied preemption is conflict preemption. Conflict preemption arises where (1) “compliance with both federal and state regulations is a physical impossibility” or (2) the state law “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Gade, 505 U.S. at 98, 112 S.Ct. 2374 (citations omitted). The primary purpose of the FAA was the creation of the Federal Aviation Administration, the agency that promulgates regulations of the aviation industry. As originally drafted, the FAA did not contain an express preemption provision, but it included a sovereignty clause and a saving clause reflecting federalism concerns. The sovereignty clause states that “the Government" }, { "docid": "23198257", "title": "", "text": "of the Land; ... any Thing in the Constitution or Laws of any state to the Contrary notwithstanding.” U.S. Const. Art. VI, cl. 2. “Consideration of issues arising under the Supremacy Clause ‘start[s] with the assumption that the historic police powers of the States [are] not to be superseded by ... Federal Act unless that [is] the clear and manifest purpose of Congress.’ ” Cipollone v. Liggett Group, Inc., 505 U.S. 504, 516, 112 S.Ct. 2608, 120 L.Ed.2d 407 (1992) (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 91 L.Ed. 1447 (1947)). “Accordingly, ‘[t]he purpose of Congress is the ultimate touchstone’ of pre-emption analysis.” Id. (citation omitted). The Supreme Court has cautioned that “despite the variety of these opportunities for federal preeminence, we have never assumed lightly that Congress has derogated state regulation, but instead have addressed claims of preemption with the starting presumption that Congress does not intend to supplant state law.” New York State Conf. of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645, 654, 115 S.Ct. 1671, 131 L.Ed.2d 695 (1995). The Court in Cipollone stated the test for preemption: Congress’ intent may be “explicitly stated in the statute’s language or implicitly contained in its structure and purpose.” Jones v. Rath Packing Co., 430 U.S. 519, 525, 97 S.Ct. 1305, 51 L.Ed.2d 604 (1977). In the absence of an express congressional command, state law is preempted if that law actually conflicts with federal law, see Pacific Gas & Elec. Co. v. State Energy Resources Conservation and Dev. Comm’n, 461 U.S. 190, 204, 103 S.Ct. 1713, 75 L.Ed.2d 752 (1983), or if federal law so thoroughly occupies a legislative field “ ‘as to make reasonable the inference that Congress left no room for the States to supplement it.’ ” Fidelity Fed. Sav. & Loan Assn. v. de la Cuesta, 458 U.S. 141, 153, 102 S.Ct. 3014, 73 L.Ed.2d 664 (1982) (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. at 230, 67 S.Ct. 1146). 505 U.S. at 516, ‘112 S.Ct. 2608. The instant case concerns the species" }, { "docid": "15216909", "title": "", "text": "R.R. v. Mottley, 211 U.S. 149, 29 S.Ct. 42, 53 L.Ed. 126 (1908). There are two broad exceptions to the well-pleaded complaint rule: (1) when the complaint is “artfully pleaded” to avoid making explicit reference to what is in fact a federal claim; and (2) when the otherwise applicable state law has been “completely preempted” by federal law. See Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 107 S.Ct. 1542, 95 L.Ed.2d 55 (1987); Travelers Indemnity Co. v. Sarkisian, 794 F.2d 754, 760 (2d Cir.1986). In addition, the Supreme Court has held that federal question jurisdiction also exists when “federal law creates the cause of action” or “the plaintiffs’ right to relief necessarily depends on resolution of a substantial question of federal law.” Franchise Tax Bd. v. Construction Laborers Vacation Trust, 463 U.S. 1, 27-28, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983). Preemption is a doctrine grounded in the Supremacy Clause of the Constitution, U.S. Const, art. VI, cl. 2, which the Supreme Court has interpreted to provide that any state law conflicting with a valid federal law is “without effect.” Maryland v. Louisiana, 451 U.S. 725, 746, 101 S.Ct. 2114, 68 L.Ed.2d 576 (1981). To avoid “unintended encroachment on the authority of the States, however, a court interpreting a federal statute pertaining to a subject traditionally governed by state law will be reluctant to find pre-emption.” CSX Transp., Inc. v. Easterwood, 507 U.S. 658, 664, 113 S.Ct. 1732, 123 L.Ed.2d 387 (1993). The assumption that the historic police powers of the states are not preempted by a federal statute is overcome on a showing that such a result is the “clear and manifest purpose of Congress.” Cipollone v. Liggett Group, Inc., 505 U.S. 504, 516, 112 S.Ct. 2608, 120 L.Ed.2d 407 (1992) (citation omitted). The “ultimate touchstone” of preemption analysis is the purpose of Congress. Cipollone, 505 U.S. at 516, 112 S.Ct. 2608. Preemption may be express or implied from the structure and purpose of a statute. See Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 95, 103 S.Ct. 2890, 77 L.Ed.2d 490 (1983). Implied preemption may" }, { "docid": "297759", "title": "", "text": "576 (1981); Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 210-11, 6 L.Ed. 23 (1824); M’Culloch v. Maryland, 17 U.S. (4 Wheat.) 316, 427, 4 L.Ed. 579 (1819); Greenwood Trust Co. v. Massachusetts, 971 F.2d 818, 822 (1st Cir.1992). Preemption is strong medicine. Thus, although the power to preempt is absolute, its exercise is not lightly to be presumed. See Gregory v. Ashcroft, 501 U.S. 452, 460, 111 S.Ct. 2395, 115 L.Ed.2d 410 (1991). Rather, courts “start with the assumption that the historic police powers of the States [are] not to be superseded by ... Federal Act unless that [is] the clear and manifest purpose of Congress.” Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 91 L.Ed. 1447 (1947). It follows inexorably that congressional intent stands at the base of all preemption analysis. See Cipollone v. Liggett Group, Inc., 505 U.S. 504, 516, 112 S.Ct. 2608, 120 L.Ed.2d 407 (1992). The Supreme Court generally distinguishes between express and implied theories of preemption. Express preemption occurs “when Congress has ‘unmistakably ... ordained’ that its enactments alone are to regulate a [subject, and] state laws regulating that [subject] must fall.” Jones v. Rath Packing Co., 430 U.S. 519, 525, 97 S.Ct. 1305, 51 L.Ed.2d 604 (1977) (quoting Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142, 83 S.Ct. 1210, 10 L.Ed.2d 248 (1963)). Implied preemption is more elusive; that concept “has a certain protean quality, which renders pigeonholing difficult.” French v. Pan Am Express, Inc., 869 F.2d 1, 2 (1st Cir.1989). Generally speaking, implied preemption encompasses both “field” and “conflict” preemption principles. The former set of principles reflects the view that Congress’s intent to occupy a given field can be inferred from the pervasiveness of federal regulation and/or the dominance of the federal interest in a particular area of legislative activity. See Rice, 331 U.S. at 230, 67 S.Ct. 1146; French, 869 F.2d at 2. By contrast, the latter set of principles reflects the idea that congressional intent also can be deduced from circumstances such as inconsistency or impossibility. See Gade v. National Solid" }, { "docid": "11418780", "title": "", "text": "court may resolve disputed jurisdictional fact issues by reference to evidence outside the pleadings, such as affidavits. Antares Aircraft L.P. v. Federal Republic of Nigeria, 948 F.2d 90, 96 (2d Cir.1991), vacated on other grounds, 505 U.S. 1215, 112 S.Ct. 3020, 120 L.Ed.2d 892 (1992). II. Preemption under the Federal Aviation Act The Supremacy Clause of the Constitution provides: This Constitution, and the Laws of the United States ... shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, and any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. U.S. Const., Art. VI, cl. 2. Thus, any state law that conflicts with federal law is “without effect.” Maryland v. Louisiana, 451 U.S. 725, 746, 101 S.Ct. 2114, 2128-29, 68 L.Ed.2d 576 (1981). To avoid “unintended encroachment on the authority of the States, however, a court interpreting a federal statute pertaining to a subject traditionally governed by state law will be reluctant to find preemption.” CSX Transportation, Inc. v. Easterwood, 507 U.S. 658, 664, 113 S.Ct. 1732, 1737, 123 L.Ed.2d 387 (1993). Accordingly, a finding of preemption is justified only upon a showing that such result is the “clear and manifest purpose of Congress.” Cipollone v. Liggett Group, Inc., 505 U.S. 504, 516, 112 S.Ct. 2608, 2617, 120 L.Ed.2d 407 (1992) (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 1152, 91 L.Ed. 1447 (1947)). From 1958 until 1978, the Federal Aviation Act permitted passengers to pursue common law or state statutory remedies against airlines. Rombom v. United Air Lines, Inc., 867 F.Supp. 214, 218 (S.D.N.Y.1994). In 1978, however, the Federal Aviation Act was amended by the Airline Deregulation Act (“ADA”), which provides that a state “may not enact or enforce a law, regulation, or other provision having the force and effect of law related to a price, route, or service of an air carrier that may provide air transportation----” 49 U.S.C. § 41713(b)(1) (formerly 49 U.S.C. § 1305). The policy underlying this statute is to ensure that the states do not eviscerate" }, { "docid": "8517091", "title": "", "text": "State to the Contrary notwithstanding.” U.S. Const. Art. VI, cl. 2. Preemption analysis must “start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.” Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 91 L.Ed. 1447 (1947). “The purpose of Congress is the ultimate touchstone of preemption analysis.” Cipollone v. Liggett Group, 505 U.S. 504, 516, 112 S.Ct. 2608, 120 L.Ed.2d 407 (1992) (internal quotation marks omitted). State law is preempted if Congress’ intent to preempt is (1) explicit in the federal statute’s language or (2) implicit in its structure and purpose; (3) if state law actually conflicts with federal law; or (4) if federal law so thoroughly occupies the legislative field that Congress left no room for state regulation. Id. Conflict preemption exists “where ‘compliance with both federal and state regulations is a physical impossibility,’ or where state law ‘stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.’ ” Gade v. Nat'l Solid Wastes Mgmt. Ass’n, 505 U.S. 88, 98, 112 S.Ct. 2374, 120 L.Ed.2d 73 (1992) (quoting Fla. Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142-43, 83 S.Ct. 1210, 10 L.Ed.2d 248 (1963); and Hines v. Davidowitz, 312 U.S. 52, 67, 61 S.Ct. 399, 85 L.Ed. 581 (1941)). Quicken’s arguments implicate both express and conflict preemption. A. Conflict with 12 C.F.R. § 560.35 The Parity Act authorized the OTS to identify, describe, and publish those regulations that are inappropriate and inapplicable to nonfederally chartered housing-creditors. 12 U.S.C. § 3801 note. The OTS identified 12 C.F.R. § 560.35 as “appropriate and applicable for state housing creditors.” 12 C.F.R. § 560.220(b). This regulation provides that adjustments to the payment amount for a home loan must comply with the following limitations: Adjustments to the payment and the loan balance that do not reflect an interest rate adjustment may be made if: (1) The adjustments reflect a change in an index that may be used pursuant" }, { "docid": "3448964", "title": "", "text": "grant of summary judgment de novo.” Winterrowd v. Am. Gen. Annuity Ins. Co., 321 F.3d 933, 937 (9th Cir.2003). Further, federal preemption is an issue of law, which we review de novo. Id. A. Under Article VI of the Constitution, the laws of the United States “shall be the supreme Law of the Land; ... any Thing in the Constitution or Laws of any state to the Contrary notwithstanding.” U.S. Const, art. VI, cl. 2. Accordingly, it is axiomatic “that state law that conflicts with federal law is ‘without effect.’ ” Cipollone v. Liggett Group, Inc., 505 U.S. 504, 516, 112 S.Ct. 2608, 120 L.Ed.2d 407 (1992) (quoting Maryland v. Louisiana, 451 U.S. 725, 746, 101 S.Ct. 2114, 68 L.Ed.2d 576 (1981)). Federal law may preempt state law under the Supremacy Clause in three ways. English v. Gen. Elec. Co., 496 U.S. 72, 78, 110 S.Ct. 2270, 110 L.Ed.2d 65 (1990). First, Congress may state its intent through an express preemption statutory provision. Id. at 78-79, 110 S.Ct. 2270. Second, “in the absence of explicit statutory language, state law is preempted where it regulates conduct in a field that Congress intended the Federal Government to occupy exclusively.” Id. at 79, 110 S.Ct. 2270. Such an intent may be inferred from a “scheme of federal regulation ... so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it,” or where an Act of Congress “toueh[es] a field in which the federal interest is so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject.” Id. (alterations in original) (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 91 L.Ed. 1447 (1947)). Finally, state law that actually conflicts with federal law is preempted. Id. “Thus, the Court has found pre-emption where it is impossible for a private party to comply with both state and federal requirements, or where state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Id. (citation and quotation" }, { "docid": "7370600", "title": "", "text": "F.3d 313, 315 (1st Cir.1995) (citations and some internal quotation marks omitted). Where, as here, summary judgment has been granted, the court of appeals reviews the matter de novo, regarding the record and all reasonable inferences therefrom in the light most hospitable to the party who lost below. Houlton Citizens’ Coalition v. Town of Houlton, 175 F.3d 178, 184 (1st Cir.1999); Garside v. Osco Drug, Inc., 895 F.2d 46, 48 (1st Cir.1990). B. The Supremacy Clause. Grant maintains that, as applied to it, Maine’s statutory scheme is preempted under the Supremacy Clause. See U.S. Const, art. VI, cl. 2 (declaring that federal law “shall be the supreme Law of the Land ... any Thing in the Constitution or Laws of any State to the Contrary notwithstanding”). Congressional intent is the touchstone of preemption analysis. Cipollone v. Liggett Group, Inc., 505 U.S. 504, 516, 112 S.Ct. 2608, 120 L.Ed.2d 407 (1992); English v. General Elec. Co., 496 U.S. 72, 78-79, 110 S.Ct. 2270, 110 L.Ed.2d 65 (1990). Moreover, in undertaking such analyses courts “start with the assumption that the historic police powers of the States [are] not to be superseded by ... Federal Act unless that [is] the clear and manifest purpose of Congress.” Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 91 L.Ed. 1447 (1947). Federal law may preempt state law either expressly or by implication. Express preemption occurs only when a federal statute explicitly confirms Congress’s intention to preempt state law and defines the extent of that preclusion. English, 496 U.S. at 78-79, 110 S.Ct. 2270. Implied preemption can occur in one of two ways: field preemption or conflict preemption. Massachusetts Ass’n of HMO v. Ruthardt, 194 F.3d 176, 179 (1st Cir.1999). Field preemption occurs when a federal regulatory scheme is so pervasive as to warrant an inference that Congress did not intend the states to supplement it. Gade v. National Solid Wastes Mgmt. Ass’n, 505 U.S. 88, 98, 112 S.Ct. 2374, 120 L.Ed.2d 73 (1992). Conflict preemption takes place either when compliance with both state and federal regulations is impossible or when state" }, { "docid": "16643855", "title": "", "text": "for summary judgment, entered judgment in favor of the Mortgage Association and permanently enjoined Virginia officials “from enforcing their announced position that the Parity Act does not preempt Virginia state law limiting prepayment penalties on alternative mortgage transactions.” This appeal followed. II Virginia argues principally that the scope of preemption effected by the Parity Act does not preclude it from regulating prepayment penalties in alternative mortgage transactions. It argues, [SJtate laws that do not prevent or interfere with [alternative mortgage transactions] are not preempted. Congress defined [alternative mortgage transactions] in § 3802(1) to be loans involving terms “not common to traditional fixed-rate, fixed-term transactions.” Prepayment penalties were obviously not included in this definition, because they were and are common to traditional real estate financing. Hence, because the Virginia Statutes do not interfere with the making of [alternative mortgage transactions], they are not preempted. To decide whether the Parity Act preempts Virginia’s statutes regulating prepayment penalties, we must first identify the basic principles of preemption that are applicable. The Supremacy Clause of the United States Constitution mandates that “the Laws of the United States ... shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary not withstanding.” U.S. Const, art. VI, cl. 2. Thus, “federal legislation, if enacted pursuant to Congress’ constitutionally delegated authority, can nullify conflicting state or local actions.” Worm v. American Cyanamid Co., 970 F.2d 1301, 1304-05 (4th Cir.1992). “Consideration of issues arising under the Supremacy Clause ‘start[s] with the assumption that the historic police powers of the States [are] not to be superseded by ... Federal Act unless that [is] the clear and manifest purpose of Congress.’ ” Cipollone v. Liggett Group, Inc., 505 U.S. 504, 516, 112 S.Ct. 2608, 120 L.Ed.2d 407 (1992) (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 91 L.Ed. 1447 (1947) (alterations in original)). The “ultimate touchstone” of preemption analysis is the intent of Congress. Malone v. White Motor Corp., 435 U.S. 497, 504, 98" }, { "docid": "20925760", "title": "", "text": "106 S.Ct. at 2510-2511; Matsushita Elec. Indus. Co., 475 U.S. at 587,106 S.Ct. at 1356. Thus, summary judgment is proper where there is “little or no evidence ... in support of the non-moving party’s case.” Gallo v. Prudential Residential Servs., 22 F.3d 1219, 1223-1224 (2d Cir.1994) (citations omitted) 1. Federal Preemption Defendant contends that the plaintiffs tort claims are preempted by federal law. Gen erally, “[w]here a state statute conflicts with or frustrates federal law, the former must give way.” CSX Transp., Inc. v. Easterwood, 507 U.S. 658, 663, 113 S.Ct. 1732, 1737, 123 L.Ed.2d 387 (1993) (citing U.S. Const., Art. VI, cl. 2; Maryland v. Louisiana, 451 U.S. 725, 746, 101 S.Ct. 2114, 2128, 68 L.Ed.2d 576 (1981)). “Consideration of issues arising under the Supremacy Clause ‘start[s] with the assumption that the historic police powers of the States [are] not to be superseded by ... Federal Act unless that [is] the clear and manifest purpose of Congress.’” Cipollone v. Liggett Group, Inc., 505 U.S. 504, 516, 112 S.Ct. 2608, 2617, 120 L.Ed.2d 407 (1992) (quoting Bice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146,1152, 91 L.Ed. 1447 (1947)). “Evidence of pre-emptive purpose is sought in the text and structure of the statute at issue.” CSX Transp., 507 U.S at 664, 113 S.Ct. at 1737 (citing Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 95, 103 S.Ct. 2890, 2898, 77 L.Ed.2d 490 (1983)). “Congress’ intent may be ‘explicitly stated in the statute’s language or implicitly contained in its structure and purpose.’ ” Cipollone, 505 U.S. at 516, 112 S.Ct. at 2617 (quoting Jones v. Rath Packing Co., 430 U.S. 519, 525, 97 S.Ct. 1305, 1309, 51 L.Ed.2d 604 (1977)). “In the absence of an express congressional command, state law is pre-empted if that law actually conflicts with federal law ...” Id. (citing Pacific Gas & Elec. Co. v. State Energy Resources Conservation and Dev. Comm’n, 461 U.S. 190, 204, 103 S.Ct. 1713, 1722, 75 L.Ed.2d 752 (1983)). In addition, state law is preempted if the “federal law so thoroughly occupies a legislative field ‘as to" }, { "docid": "14922760", "title": "", "text": "84 F.3d at 1197. In regard to the relevant substantive law at issue in this case, a district court’s decision regarding federal preemption is reviewed de novo, see Californians for Safe & Competitive Dump Truck Transp. v. Mendonca, 152 F.3d 1184, 1186 (9th Cir.1998), as is a district court’s interpretation and construction of a federal statute. See Alexander v. Glickman, 139 F.3d 733, 735 (9th Cir.1998); Waste Action Project v. Dawn Mining Corp., 137 F.3d 1426, 1428 (9th Cir.1998). III. Under the Supremacy Clause of the United States Constitution, the laws of the United States are “the supreme Law of the Land; ... any Thing in the Constitution or Laws of any state to the Con trary notwithstanding.” Art. VI, cl. 2. Issues of federal preemption arising under the Supremacy Clause, however, “start with the assumption that the historic police powers of the States [are] not to be superseded by ... [a] Federal Act unless that [is] the clear and manifest purpose of Congress.” Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 91 L.Ed. 1447 (1947). Congressional intent is, therefore, the ‘“ultimate touchstone’ of preemption analysis.” Cipollone v. Liggett Group, Inc., 505 U.S. 504, 516, 112 S.Ct. 2608, 120 L.Ed.2d 407 (1992) (quoting Malone v. White Motor Corp., 435 U.S. 497, 504, 98 S.Ct. 1185, 55 L.Ed.2d 443 (1978)); see also Morales v. Trans World Airlines, Inc., 504 U.S. 374, 383, 112 S.Ct. 2031, 119 L.Ed.2d 157 (1992). Federal preemption occurs when: (1) Congress enacts a statute that explicitly preempts state law; (2) state law actually conflicts with federal law; or (3) federal law occupies a legislative field to such an extent that it is reasonable to conclude that Congress left no room for state regulation in the legislative field. See Cipollone, 505 U.S. at 516, 112 S.Ct. 2608. When, however, Congress considers the issue of preemption and adopts a preemption statute that provides a reliable indication of its intent regarding preemption, the scope of federal preemption is determined by the preemption statute and not by the substantive provisions of the legislation. See id. at" }, { "docid": "10896229", "title": "", "text": "because the ordinance “specifically targets for regulation an area where there has been a history of significant federal presence.” (PL Memo. In Opp’n, ¶ 9 (citing Skysign Int’l, Inc. v. Honolulu, 276 F.3d 1109, 1116 (9th Cir.2002)).) Thus, this Court proceeds with the standard preemption analysis, which revolves around the finding of Congressional intent. Cipollone v. Liggett Group, Inc., 505 U.S. 504, 516, 112 S.Ct. 2608, 120 L.Ed.2d 407 (1992). A state law that conflicts with federal law is “without effect.” Maryland v. Louisiana, 451 U.S. 725, 746, 101 S.Ct. 2114, 68 L.Ed.2d 576 (1981). However, the preemption analysis “starts with the assumption that the historic police powers of the States are not to be superseded by Federal Act unless that is the clear and manifest purpose of Congress.” Cipollone, 505 U.S. at 516, 112 S.Ct. 2608 (citing Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 91 L.Ed. 1447 (1947)). Federal preemption will be found: (1) expressly through the explicit terms of the federal statute or action; (2) impliedly when the intent of Congress is clearly manifested or “implicit from a pervasive scheme of federal regulation that leaves no room for state and local supplementation;” or (3) when there is an actual conflict between state and federal law. See, e.g., Barber v. State of Hawaii, 42 F.3d 1185, 1189 (9th Cir.1994). The issue of whether Honolulu Revised Ordinance § 40-6.1 is federally preempted has already been litigated in this jurisdiction. In Skysign, the Ninth Circuit upheld this same Honolulu ordinance against the claims of an aerial provider of commercial advertising- who claimed, like Plaintiffs, that the ordinance was federally preempted by the FAA’s waiver scheme. 276 F.3d at 1115-1118. The court found that, although the plaintiff in that case cited different federal aviation statutes that did explicitly preempt state action in other circumstances, nothing in the FAA’s waiver system constituted express preemption. Turning to the issue of whether Congress had impliedly preempted local regulation by occupying the entire field, the court concluded that regulating certain.aspects of air traffic does not alone exclude any state or" }, { "docid": "18190435", "title": "", "text": "U.S. 504, 516, 112 S.Ct. 2608, 120 L.Ed.2d 407 (1992) (“state law that conflicts with federal law is ‘without effect’ ”). In light of principles of federalism, there is, however, a presumption against preemption. See New York State Conf. of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645, 654, 115 S.Ct. 1671, 131 L.Ed.2d 695 (1995). “Consideration of issues arising under the Supremacy Clause start[s] with the assumption that the historic police powers of the States [are] not to be superseded by ... Federal Act unless that [is] the clear and manifest purpose of Congress.” Cipollone, 505 U.S. at 516, 112 S.Ct. 2608, 120 L.Ed.2d 407 (1992) (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 91 L.Ed. 1447 (1947) (internal quotation marks omitted)). Congressional intent is therefore “the ultimate touchstone of pre-emption analysis.” Id.; see also FMC Corp. v. Holliday, 498 U.S. 52, 56, 111 S.Ct. 403, 112 L.Ed.2d 356 (1990) (“In determining whether federal law preempts a state statute, we look to congressional intent.”). There are two basic types of preemption, express and implied. See Cipollone, 505 U.S. at 516, 112 S.Ct. 2608. Express preemption is achieved by way of an explicit statement in a statute’s language, or an “express congressional command.” Id. Implied preemption occurs either when state law actually conflicts with federal law (i.e., conflict preemption), or “if federal law so thoroughly occupies a legislative field as to make reasonable the inference that Congress left no room for the States to supplement it” (i.e., field preemption). Id. (citations and internal quotation marks omitted). In this case, defendants argue that plaintiffs’ claims are both expressly and impliedly preempted. Each argument is addressed in turn. A. Express Preemption The Airline Deregulation Act of 1978 (“ADA”) contains an express preemption clause, which provides that states “may not enact or enforce a law, regulation, or other provision having the force and effect of law related to a price, route, or service of an air carrier....” 49 U.S.C. § 41713(b) (1997). In this case, plaintiffs allege that the collection of certain" }, { "docid": "10896228", "title": "", "text": "water vehicles, and between aircraft and airborne objects 49 U.S.C. § 40103(b)(2). It was pursuant to this statutory authority that the FAA issued 14 C.F.R. § 91.311, which provides that “no pilot of a civil aircraft may tow anything with that aircraft except in accordance with the terms of a certificate of waiver issued by the [FAA].” Moreover, “no person may operate a restricted category civil aircraft within the United States — (1) over a densely populated area; (2) in a congested airway; or (3) near a busy airport,” except as authorized by a certificate of waiver. (Def. Memo. In Support of Sum. Judg., Ex. J at 3 (citing 14 C.F.R. § 91.313(e)(internal punctuation omitted)).) To issue a waiver, the FAA need only find “that the proposed operation can be safely conducted under the terms of that certificate of waiver.” Id. (citing 42 C.F.R. § 91.303(a)). Plaintiffs correctly note that, although advertising regulations are traditionally the prerogative of the states as part of their general police power, no presumption of preemption applies in this instance because the ordinance “specifically targets for regulation an area where there has been a history of significant federal presence.” (PL Memo. In Opp’n, ¶ 9 (citing Skysign Int’l, Inc. v. Honolulu, 276 F.3d 1109, 1116 (9th Cir.2002)).) Thus, this Court proceeds with the standard preemption analysis, which revolves around the finding of Congressional intent. Cipollone v. Liggett Group, Inc., 505 U.S. 504, 516, 112 S.Ct. 2608, 120 L.Ed.2d 407 (1992). A state law that conflicts with federal law is “without effect.” Maryland v. Louisiana, 451 U.S. 725, 746, 101 S.Ct. 2114, 68 L.Ed.2d 576 (1981). However, the preemption analysis “starts with the assumption that the historic police powers of the States are not to be superseded by Federal Act unless that is the clear and manifest purpose of Congress.” Cipollone, 505 U.S. at 516, 112 S.Ct. 2608 (citing Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 91 L.Ed. 1447 (1947)). Federal preemption will be found: (1) expressly through the explicit terms of the federal statute or action; (2) impliedly when" } ]

[ { "docid": "22657986", "title": "", "text": "reasons that follow, • we hold that the “plain view” exception to the warrant requirement is inapplicable to this case. Since the seizure was therefore illegal, it is unnecessary to consider the applicability of Cooper, supra, to the subsequent search. It is well established that under certain circumstances the police may seize- evidence in plain view .without a warrant. But it is important to keep in mind that, in the vast majority of cases, any -evidence seized by the police will be in plain view, at least at the moment of seizure. The problem with the “plain view” doctrine has been to identify the circumstances in which plain view has legal significance rather than being simply the normal concomitant of any search, legal or illegal. An example of the applicability of the “plain view” doctrine is the. situation in which the police have a warrant to search a given area for specified objects, and in the course of the search come across some other article of incriminating character. Cf. Go-Bart Importing Co. v. United States, 282 U. S. 344, 358; United States v. Lefkowitz, 285 U. S. 452, 465; Steele v. United States, 267 U. S. 498; Stanley v. Georgia, 394 U. S. 557, 571 (Stewart, J., concurring in result). Where the initial intrusion that brings the police within plain view of such an article is supported, not by a warrant, .but by one of the recognized exceptions to the warrant requirement, the seizure is also legitimate. Thus the police may inadvertently come across evidence while in “hot pursuit” of a fleeing suspect. Warden v. Hayden, supra; cf. Hester v. United States, 265 U. S. 57. And. an object that comes into view during a search incident to arrest that is appropriately limited in scope under existing law may be seized' without a warrant. Chimel v. California, 395 U. S., at 762-763. Finally, the “plain view” doctrine has been applied where a police officer is not searching for evidence against the accused, but nonetheless inadvertently comes across an incriminating object. Harris v. United States, 390 U. S. 234; Frazier v." } ]

[ { "docid": "23012988", "title": "", "text": "Ct.Op. at 1503-04, I respectfully dissent from going further and using the statement in Dimick, which pertains to searches, as an opportunity to say, be it search or seizure, that an occupant cannot have a comparable level of privacy in a compartment that one would have in a hotel or motel room. To do so is inappropriate, I believe, because the expectation of privacy issue, as it pertains to searches, simply is not before us in this seizure case. LOGAN, Circuit Judge, with whom SEYMOUR, Chief Judge, and MeKAY, Circuit Judge, join, dissenting: I Insofar as the majority opinion holds that Agent Small did not have reasonable suspicion of criminal activity to justify detaining defendant Little or her luggage before their initial encounter, I am in agreement. Small had boarded the train to check out two other passengers; he questioned them, induced them to let him search their baggage (and in one case the passenger’s person), but found nothing incriminating. Small focused on defendant only because he saw a new suitcase with no name tag on the rack where passengers placed their bags outside the roomettes, and a train attendant identified it as defendant’s. Obviously the suitcase’s physical appearance and location provided no grounds for reasonable suspicion; train passengers can and do carry on their own luggage, sometimes old but sometimes new, and place it where it can be retrieved at their will. Apparently because they are suspicious of almost everyone, Small and the officer who accompanied him decided to do their own human sniff of defendant’s luggage. They detected an odor they could not identify as the odor of any drug or any masking agent. I attribute no significance to the statement that they smelled a “chemical” odor, because all odors are chemical. Thus, I agree that the agent had no articulable suspicion to justify questioning defendant, and the case must be viewed in the same posture as the encounter in Florida v. Bostick, 501 U.S. -, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991). II It also seems clear that defendant in fact felt compelled to answer the agent’s" }, { "docid": "23508738", "title": "", "text": ". . . .”); United States v. Minton, 488 F.2d 37, 38 (4th Cir. 1973), cert. denied, 416 U.S. 936, 94 S.Ct. 1936 (1974) (use of binoculars); Cobb v. Wyrick, 379 F.Supp. 1287, 1292 n.3 (W.D.Mo.1974) (use of flashlight). . In fact a panel of this circuit has noted that, in the great majority of cases, arrests resulting from the use of anti-hijacking procedures have nothing to do with aircraft security, but instead involve other offenses, usually the possession of contraband. United States v. Albar-ado, supra, 495 F.2d at 805 & n. 12. . Subsequently, Judge Friendly in his Edwards opinion was able to distinguish Albarado on this ground. In Edwards, the defendant set off the magnetometer when she walked through it while carrying her baggage; only this baggage was then searched, and heroin was found in one of her bags. Hence, “the case presents no such questions concerning a search of her person as were considered in Albarado.\" 498 F.2d at 500. Of course, we here also have a search of baggage and not a personal search. . Bronstein is a college graduate; Pennington attended Arizona State University for over three and one-half years. MANSFIELD, Circuit Judge (concurring): Although I concur in the result reached by the majority, I do so by a somewhat different route. I am unable to agree with the majority that use of a marijuana-sniffing dog to ascertain the contents of a private bag amounts to some sort of “plain smell,” comparable to a “plain view,” Coolidge v. New Hampshire, 403 U.S. 443, 465-68, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), rather than a search. The essence of a search is the intrusion into an area (whether it be a bag or a room) which the owner or possessor is entitled to enjoy as private. As the majority recognizes, there is no such intrusion when a human being can, with his own senses and without physical investigation, ascertain the contents. And, even though it is stretching the rule somewhat, the police have been permitted to enhance or magnify the human senses with the aid of" }, { "docid": "23508737", "title": "", "text": "393 F.Supp. 325 (D.C.Cal., 1975), it was held that the use of marijuana-detecting dogs constituted a search per se under the Fourth Amendment. Aside from the fact that this case is not binding upon us, we note that the dogs in Solis sniffed at a closed trailer, which the court held to be a “private place” where there was a reasonable expectation of privacy. Moreover, the dogs were employed in response to a tip from an informer of unproven reliability. . It has often been held that the use of certain “sense-enhancing” instruments to aid in the detection of contraband, etc., does not constitute an impermissible Fourth Amendment search. E.g., United States v. Lee, 274 U.S. 559, 563, 47 S.Ct. 746, 71 L.Ed. 1202 (1927) (opinion of Brandeis, J.) (use of boat searchlight is “not prohibited by the Constitution.”); United States v. Hood, 493 F.2d 677, 680 (9th Cir.), cert. denied, 419 U.S. 852, 95 S.Ct. 852, 42 L.Ed.2d 84 (1974) (flashlight used to look into car at night “did not . constitute a search . . . .”); United States v. Minton, 488 F.2d 37, 38 (4th Cir. 1973), cert. denied, 416 U.S. 936, 94 S.Ct. 1936 (1974) (use of binoculars); Cobb v. Wyrick, 379 F.Supp. 1287, 1292 n.3 (W.D.Mo.1974) (use of flashlight). . In fact a panel of this circuit has noted that, in the great majority of cases, arrests resulting from the use of anti-hijacking procedures have nothing to do with aircraft security, but instead involve other offenses, usually the possession of contraband. United States v. Albar-ado, supra, 495 F.2d at 805 & n. 12. . Subsequently, Judge Friendly in his Edwards opinion was able to distinguish Albarado on this ground. In Edwards, the defendant set off the magnetometer when she walked through it while carrying her baggage; only this baggage was then searched, and heroin was found in one of her bags. Hence, “the case presents no such questions concerning a search of her person as were considered in Albarado.\" 498 F.2d at 500. Of course, we here also have a search of baggage and not" }, { "docid": "4095493", "title": "", "text": "circumstances was “not unreasonable.” In United States v. Carson, 22 U.S.C.M.A. 203, 46 C.M.R. 203 (1972), a marihuana dog was permitted to check the baggage of the appellant and his two companions in a military airport terminal, after they had applied for flight space but before they had yet committed themselves to travel or checked their baggage. In fact, one of the three was with the luggage at all times while waiting in the terminal. This Court decided that the search which followed the dog’s alert was not a “customs-like” search, which was the theory of the Government on appeal. In so ruling, the Court found pivotal the facts that normally the dog did not check any baggage until after it was cheeked for a flight and that in that case the accused had not in fact checked his luggage, but rather had retained control over and possession of it. Although, as indicated, the use of the dog as a search was not determined expressly, the same consideration would have dictated the same result had the dog been viewed as the search instrument, that is, the accused had not given up his reasonable expectation of privacy in his locked luggage which remained in his possession and control. Moreover, the rationale underlying the decisions of the Federal district and circuit courts in this area do not support a conclusion to the contrary, despite the purported holdings. For instance, the U. S. Court of Appeals for the Second Circuit in United States v. Bronstein, 521 F.2d 459 (2d Cir. 1975), responding to a claim by the defendant that the use of a marihuana dog was a warrantless search without probable cause, opined that if a police officer had smelled the contraband with his own senses there could have been no complaint and that the court perceived no difference whether the sniffing was done by a policeman or by a dog. However, the court’s analysis of the facts and the law was not this simplistic. Based upon a reliable tip regarding two suspicious passengers en route to the destination airport, law officers thereat" }, { "docid": "22245998", "title": "", "text": "of an odor, say, of marijuana, no search has occurred; the aroma emanating from the property or person is considered exposed to the public “view” and, therefore, unprotected. From this proposition the courts have concluded that the sniffing of a dog is “no different,” or that the dog’s olfactory sense merely “enhances” that of the police officer in the same way that a flashlight enhances the officer’s sight. We find Goldstein to be controlling on the question of whether the dogs’ sniffing of student lockers in public hallways and automobiles parked on public parking lots was a search. The sniffs occurred while the objects were unattended and positioned in public view. Had the principal of the school wandered past the lockers and smelled the pungent aroma of marijuana wafting through the corridors, it would be difficult to contend that a search had occurred. Goldstein stands for the proposition that the use of the dogs’ nose to ferret out the scent from inanimate objects in public places is not treated any differently. We hold accordingly that the sniffs of the lockers and cars did not constitute a search and therefore we need make no inquiry into the reasonableness of the sniffing of the lockers and automobiles. The use of the dogs to sniff the students, however, presents an entirely different problem. After all, the fourth amendment “protects people, not places.” Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 511, 19 L.Ed.2d 576 (1967). Neither Gold-stein nor Viera involved sniffs of persons and therefore they are not controlling. The Second and Ninth Circuits specifically noted that people had not been sniffed when they upheld the constitutionality of dogs sniffing objects. Bronstein, supra; Solis, supra. The Seventh Circuit is the only circuit to have held that sniffs of school children do not constitute a search, Renfrow, supra. We note that there was apparently no evi dence in Renfrow that the dogs actually touched the students, while the dogs in the GCISD program put their noses right up against the children’s bodies. Furthermore, as was noted above, the Renfrow decision has" }, { "docid": "22245997", "title": "", "text": "v. Viera, 644 F.2d 509 (5th Cir.), cert. denied, 454 U.S. 867, 102 S.Ct. 332, 70 L.Ed.2d 169 (1981), is not a search, reasoning that “the passenger’s reasonable expectation of privacy does not extend to the airspace surrounding that luggage.” 635 F.2d at'361. We noted that the appellants had released their bags to the custody of the airlines, thereby relinquishing — at least temporarily — all control over them. Other circuits have emphasized the minimal humiliation entailed in dogs sniffing unattended luggage. E.g., Bronstein, supra. The courts have in effect adopted a doctrine of “public smell” analogous to the exclusion from fourth amendment coverage of things exposed to the public “view.” Katz, supra. See also United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965) (implicit); United States v. Rivera, 595 F.2d 1095, 1098-99 (5th Cir. 1979) (implicit); see generally 1 W. LaFave, Search and Seizure § 2.2(a) (1978). The courts have reasoned that if a police officer, positioned in a place where he has a right to be, is conscious of an odor, say, of marijuana, no search has occurred; the aroma emanating from the property or person is considered exposed to the public “view” and, therefore, unprotected. From this proposition the courts have concluded that the sniffing of a dog is “no different,” or that the dog’s olfactory sense merely “enhances” that of the police officer in the same way that a flashlight enhances the officer’s sight. We find Goldstein to be controlling on the question of whether the dogs’ sniffing of student lockers in public hallways and automobiles parked on public parking lots was a search. The sniffs occurred while the objects were unattended and positioned in public view. Had the principal of the school wandered past the lockers and smelled the pungent aroma of marijuana wafting through the corridors, it would be difficult to contend that a search had occurred. Goldstein stands for the proposition that the use of the dogs’ nose to ferret out the scent from inanimate objects in public places is not treated any differently. We hold accordingly that" }, { "docid": "23508740", "title": "", "text": "instruments such as binoculars or flashlights, see cases cited in majority note 3, supra. But that is not the case here where the “nose” being put into others’ business was clearly an intrusion. The police agents here did not smell or see any contraband, nor were their senses enhanced. Their only-indication that marijuana was present was the action of the dog. Their own senses were replaced by the more sensitive nose of the dog in the same manner that a police officer’s ears are replaced by a hidden microphone in areas where he could not otherwise hear because of the inaudibility of the sounds. The illegality of the latter practice in the absence of a search warrant or special circumstances has long been established. E. g., Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). There is no legally significant difference between the use of an X-ray machine or magnetometer to invade a closed area in order to detect the presence of a metal pistol or knife, which we have held to be a search, United States v. Albarado, 495 F.2d 799, 802-03 (2d Cir. 1974), and the use of a dog to sniff for marijuana inside a private bag. Each is a non-human means of detecting the contents of a closed area without physically entering into it. The magnetometer ascertains whether there is metal in the hidden space by detecting changes in the magnetic fields surrounding the area of the hidden space. The dog uses its extremely sensitive olfactory nerve to determine whether there are marijuana molecules emanating from the hidden space. Neither constitutes a particularly offensive intrusion, such as ransacking the contents of the hidden space, or exposing a person to indignities in the case of a personal search. But the fact remains that each detects hidden objects without actual entry and without the enhancement of human senses. The fact that the canine’s search is more particularized and discriminate than that of the magnetometer is not a basis for a legal distinction. The important factor is not the relative accuracy of the sensing" }, { "docid": "12920584", "title": "", "text": "1942, 56 L.Ed.2d 486 (1978). Having entered the residence lawfully, the officers could act upon the drug manufacturing evidence in plain view, see, e.g., United States v. Evans, 966 F.2d 398, 400 (8th Cir.), cert. denied, 506 U.S. 988, 113 S.Ct. 502, 121 L.Ed.2d 438 (1992). That evidence provided probable cause to arrest Pennington, which justified a search of his person incident to the arrest. See Chimel v. California, 395 U.S. 752, 763, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). Therefore, we reject Pennington’s contention that his arrest and the September 6 search warrant were based upon tainted evidence obtained from an unconstitutional entry into his home. The September 6 search warrant contained the same description of the property to be searched as the June 22 warrant. Pennington argues the search of areas outside his modular home went beyond the property described in the warrant. We reject this contention for the reasons stated in our discussion of the June 22 warrant search. The judgment of the district court is affirmed. . The Honorable RODNEY W. SIPPEL, United States District Judge for the Eastern District of Missouri, adopting the Report and Recommendation of the Honorable LEWIS M. BLANTON, United States . Magistrate Judge for the Eastern District of Missouri. . As explained in Oliver, 466 U.S. at 180 n. 11, 104 S.Ct. 1735, the Fourth Amendment concept of an \"open field” includes \"any unoccupied or undeveloped area outside of the curtilage,” even if protected by a dense woods. BYE, Circuit Judge, concurring in part and concurring in the judgment. I join the majority’s opinion except as to Part II, in which I concur only in its judgment. Part II explains that Deputy Johnston’s search of the Crown Royal bag was constitutionally justified by the consent of Mike Vickery, a person who possessed apparent authority to consent. The majority reaches this conclusion because of the bag’s proximity to Vickery and his act of tossing it to Deputy Johnston without objection. Because I am not convinced the government has demonstrated Vickery possessed apparent authority to consent to the bag’s search, I write separately." }, { "docid": "23508739", "title": "", "text": "a personal search. . Bronstein is a college graduate; Pennington attended Arizona State University for over three and one-half years. MANSFIELD, Circuit Judge (concurring): Although I concur in the result reached by the majority, I do so by a somewhat different route. I am unable to agree with the majority that use of a marijuana-sniffing dog to ascertain the contents of a private bag amounts to some sort of “plain smell,” comparable to a “plain view,” Coolidge v. New Hampshire, 403 U.S. 443, 465-68, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), rather than a search. The essence of a search is the intrusion into an area (whether it be a bag or a room) which the owner or possessor is entitled to enjoy as private. As the majority recognizes, there is no such intrusion when a human being can, with his own senses and without physical investigation, ascertain the contents. And, even though it is stretching the rule somewhat, the police have been permitted to enhance or magnify the human senses with the aid of instruments such as binoculars or flashlights, see cases cited in majority note 3, supra. But that is not the case here where the “nose” being put into others’ business was clearly an intrusion. The police agents here did not smell or see any contraband, nor were their senses enhanced. Their only-indication that marijuana was present was the action of the dog. Their own senses were replaced by the more sensitive nose of the dog in the same manner that a police officer’s ears are replaced by a hidden microphone in areas where he could not otherwise hear because of the inaudibility of the sounds. The illegality of the latter practice in the absence of a search warrant or special circumstances has long been established. E. g., Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). There is no legally significant difference between the use of an X-ray machine or magnetometer to invade a closed area in order to detect the presence of a metal pistol or knife, which we have" }, { "docid": "4095488", "title": "", "text": "forth herein. See United States v. Kinane, 1 M.J. 309 (1976); United States v. Mathis, 16 U.S.C.M.A. 522, 37 C.M.R. 142 (1967); United States v. Burnside, 15 U.S.C.M.A. 326, 35 C.M.R. 298 (1965). FERGUSON, Senior Judge (concurring in the result): I am of the opinion that the use of a dog, trained to ferret out the presence of contraband drugs, for that purpose constitutes a “search” within the definition of the Fourth Amendment protection, and that the specific use in this case constituted an intrusion into an area in which the appellant had a reasonable expectation of privacy under circumstances which did not amount to probable cause. Hence, the search was unreasonable. The law generally has recognized that the intrusion by Government agents into an area otherwise private by an artificial device which extends the personal senses is a “search.” For instance, the United States Supreme Court has so classified the use of mechanical listening or “bugging” devices which permit the listener to hear private conversations which he could not hear with his own limited senses. Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967); Berger v. New York, 388 U.S. 41, 87 S.Ct. 1873, 18 L.Ed.2d 1040 (1967). Similarly, an airport magnetometer which intrudes inside the clothing and handcarried luggage of air passengers and detects metal objects of a certain size, otherwise not discernible to the operator via his natural senses, is a search. United States v. Albarado, 495 F.2d 799 (2d Cir. 1974); United States v. Bell, 464 F.2d 667 (2d Cir. 1972), cert. denied, 409 U.S. 991, 93 S.Ct. 335, 34 L.Ed.2d 258 (1972). Whether our society will tolerate these various me chanical searches depends, of course, on whether in a given case the constitutional standard of reasonableness is satisfied. I see no persuasive reason for calling a dog search anything but that: a search, permission of which, likewise, will be measured by its reasonableness. To pretend otherwise is to do in legal fiction what the ostrich does in fact. The cases of this Court which factually have involved the question whether" }, { "docid": "291354", "title": "", "text": "considered this contention but find no merit in it. For the reasons stated above, the judgment of conviction is affirmed. . The airline employees’ search of the suitcase was facilitated by the use of a skeleton key. The duffel bag, however, was never opened in San Diego because it was secured by a padlock. The primary inspection of the duffel bag for explosives was accomplished by the somewhat bizarre procedure whereby a baggage attendant ran with the duffel bag for about four feet and hurled it onto the concrete floor. As explained by the Baggage attendant, who was fortunately still available at the time of the trial to testify, this procedure was not contemplated by airline regulations but was instead his own personal “shock” treatment. . There is no dispute that the search in San Diego was a private search by American Airlines’ employees. After the suitcase was opened, it remained open and it was only then that the police were called. . The testimony was that the forty-nine pounds of marijuana when first broken down had a value of $58,000.00, and when broken down to “sticks” or “joints” it would sell for $71,500.00, the “street” value in the area we are concerned with. HEANEY, Circuit Judge (concurring). I concur on the grounds that although this search was a governmental one subject to the proscriptions of the Fourth Amendment, the persons executing it had probable cause to carry it out. In my view, airline singular searches conducted by airline personnel are, in fact, governmental searches. Airlines are public carriers, their routes are allocated by the government, their rates are regulated by the government, and they have no alternative but to comply with governmental regulations, including those requiring airline searches. See, Note, Airport Security Searches and the Fourth Amendment, 71 Colum.L.Rev. 1039, 1041-1047 (1971). Thus, had I been on the panels that decided Echols and Burton, I would have taken a view that the searches there were governmental rather than private. There are additional reasons for holding this search to be a governmental one. Effective February 6, 1972, each airline was" }, { "docid": "23508732", "title": "", "text": "have had occasion to describe in previous opinions in this court (e. g., United States v. Edwards, supra; United States v. Albarado, supra; United States v. Bell, supra.) Since the magnetometer is so calibrated that it can be activated by any sufficient quantity of metal, the air traveller in up to fifty per cent of the inspections will set it off, United States v. Lopez, 328 F.Supp. 1077, 1086 (E.D.N.Y.1971), and thus may well be subjected to a search of his person or his baggage because they contain such innocuous objects as lockets, key chains, combs or coins. Although the search may be justified by the. possibility that the passenger is carrying weapons or explosives which may pose a danger to flight, the fact is that when a passenger has been apprehended as the result of the search, usually the reason for his arrest has been his possession of narcotics. The concern of the Albarado panel expressed in Judge Oakes’s opinion focused on the magnetometer as a sweeping metal-detecting device brought into action against all passengers without probable cause in any particular case. Moreover “it [the magnetometer] searches for and discloses metal items within areas most intimate to the person where there is a normal expectation of privacy,” 495 F.2d at 803. The police dog sniffing procedure here, it seems to us, is distinguishable in kind and degree. The magnetometer search is indiscriminate and the presence of (suf-ficiehUmetaTwilly-nilly leads to the^body -or baggage search. ’ . Meisha by contrast was trained only to detect marijuana which is contraband and its possession a criminal offense. Appellants claim that Meisha was only fifty per cent accurate since she missed two of the bags; in contrast, the Government points out that her record is perfect because in this case and in previous performances, she has never reacted positively to baggage which did not contain cannabis. The issue is not how we compute Meisha’s track record but rather that unlike the magnetometer, Meisha responds only to marijuana. To the extent that moth balls or other substances may be utilized to camouflage the scent, she" }, { "docid": "23508730", "title": "", "text": "the drug is conveyed by nosing along the seams of the bags where they would open and then nipping and biting at the bags. This biting did not expose the contents of the bag and while it may well have constituted a technical trespass, see United States v. Artieri, 491 F.2d 440, 445-46 (2d Cir.), cert. denied, 417 U.S. 949, 95 S.Ct. 142, 42 L.Ed.2d 118 (1974), it cannot be sensibly characterized as a search or seizure. The canine surveillance conducted here occurred in a public airline terminal and the subject was baggage shipped on a public air flight. There can be no reasonable expectation of privacy when one transports baggage by plane, particularly today when the menace to public safety by the skyjacker and the passage of dangerous or hazardous freight compels continuing scrutiny of passengers and their impedimenta. See United States v. Edwards; 498 F.2d 496, 500 (2d Cir. 1974); see also Air Line Pilots Ass’n, Intl. v. CAB, 516 F.2d 1269 (2d Cir. 1975). “What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection.” Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 511, 19 L.Ed.2d 576 (1967); and see United States v. Johnston, supra, 497 F.2d at 398. We cannot agree with the contention that the police are limited to the resources of their physical senses \"‘and that the use of scientific or, in this case, canine assistance in pursuit of the criminal is impermissible. The law is settled contrariwise. The appellants here rely however upon United States v. Albarado, 495 F.2d 799, 802-03 (2d Cir. 1974), where Judge Oakes characterized the magnetometer airport search process as a search within the protection of the Fourth Amendment. (Cf. United States v. Bell, 464 F.2d 667, 673 (2d Cir.), cert. denied, 409 U.S. 991, 93 S.Ct. 335, 34 L.Ed.2d 258 (1972)). We think that the use of Meisha and the magnetometer are clearly distinguishable. Every passenger boarding a plane and his carry-on luggage are required to pass through the electronic devices which we" }, { "docid": "23508741", "title": "", "text": "held to be a search, United States v. Albarado, 495 F.2d 799, 802-03 (2d Cir. 1974), and the use of a dog to sniff for marijuana inside a private bag. Each is a non-human means of detecting the contents of a closed area without physically entering into it. The magnetometer ascertains whether there is metal in the hidden space by detecting changes in the magnetic fields surrounding the area of the hidden space. The dog uses its extremely sensitive olfactory nerve to determine whether there are marijuana molecules emanating from the hidden space. Neither constitutes a particularly offensive intrusion, such as ransacking the contents of the hidden space, or exposing a person to indignities in the case of a personal search. But the fact remains that each detects hidden objects without actual entry and without the enhancement of human senses. The fact that the canine’s search is more particularized and discriminate than that of the magnetometer is not a basis for a legal distinction. The important factor is not the relative accuracy of the sensing device but the fact of the intrusion into a closed area otherwise hidden from human view, which is the hallmark of any search. If, as we have held, examination of carry-on luggage and individual passengers by a magnetometer or X-ray machine amounts to a search within the prohibition of the Fourth Amendment because it discloses hidden items within areas where there is a normal expectation of privacy, United States v. Albara-do, supra, 495 F.2d at 802-03, then the intrusion of a sniffing dog in search of marijuana must also fall within that prohibition when directed at hidden areas where there is similarly a normal expectation of privacy. Setting aside the expectation of privacy issue for a moment, the circumstances justifying a warrantless search of boarding passengers and their hand luggage are not present here. We have upheld warrantless magnetometer searches against Fourth Amendment attack, at least where advance notice has been given, on the ground that they represent a minimal intrusion that is necessary and reasonable to protect against the danger to life and property" }, { "docid": "262039", "title": "", "text": "the plane undetected.... ” Id. at 806. The subsequent frisk, however, was found to be improper because it was not as limited in its obtrusiveness as it might have been. Before resorting to a highly intrusive “pat-down,” airline officials could have taken less extreme steps such as asking the passenger to remove all metal items from his person and then to pass through the magnetometer a second time. Id. at 808-09. The initial X-ray screening of Smith’s shoulder bag, like the initial intrusion in Albarado, was reasonable when weighed in the balance against the danger of a hijacking. The further search of the bag by airline employee Helwig was justified by. the presence on the television screen of an unidentified mass at the bottom of the bag. When Helwig looked inside and saw that the object in Smith’s bag was a stack of bills, Helwig neither removed the money nor noted a serial number. This search by hand was a minimal invasion of privacy consistent with the need to investigate whether the unidentified mass was dangerous. Our determination that this two-step search was reasonable is also supported by two airport search cases decided in this circuit after Albarado. United States v. Edwards, 498 F.2d 496, 500-01 (2d Cir. 1974), held that a general search of carry-on luggage was reasonable, provided the intrusion is exactly tailored to the security threat which in the case of hijacking involves guns, explosives, and the like. See also, United States v. Williams, 516 F.2d 11, 12 (2d Cir. 1975), (“implied consent” to search a piece of carry-on baggage because baggage may be consigned to the baggage compartment). On this appeal the Government also objects to the district court’s finding that the subsequent search at the airport, conducted by law enforcement officers, was also unreasonable under the Fourth Amendment. We agree with the Government that the second search was supported by probable cause — even without the information obtained from the checkpoint search that Smith was carrying a large quantity of cash. After Smith boarded her flight, a DEA agent and a local police officer followed" }, { "docid": "9807251", "title": "", "text": "reasonable expectation has been invaded. In Dubrofsky we held that the monitoring of a beeper, lawfully installed in a package of heroin, that merely broadcast “here I am” and when appropriate “the package has been opened,” did not constitute a search. 581 F.2d at 211. Although Dubrofsky dealt primarily with tracking a beeper in a car, the beeper was taken into a private residence where in due course it announced its presence and that the package was being opened. 581 F.2d at 211-12. On these facts we found no search. This was because the clearly recognized “intrusion” resulting from the presence of the beeper is very slight. Id. at 211. Dubrofsky compared the beeper’s operation to other enhancement devices that aid the five senses. Id. at 211 & n.l. The Fifth Circuit recently made a similar comparison. See United States v. Michael, 645 F.2d at 258. See also Note, Tracking, supra, 86 Yale L.J. at 1461 (noting that “because the beeper is capable of revealing only location and movement, it can be viewed as a sense enhancement device that is no more intrusive than traditional visual tailing”). The degree of intrusiveness of sense enhancement devices of various types on the reasonable expectation of privacy has been the controlling inquiry in other Fourth Amendment contexts. See United States v. Allen, 633 F.2d 1282, 1288 (9th Cir. 1980) (helicopter used to observe ranch near sea coast which Coast Guard planes normally traveled near to or over); United States v. Michael, 645 F.2d at 256, 258 (installation of beeper on exterior of car parked in public parking lot). Here, appellants suffered no indignity. United States v. Michael, 645 F.2d at 258. The slight physical intrusion, by reason of the beeper itself, was insignificant. Katz has made it clear that strict property law concepts no longer control. More importantly, the beeper only says “here I am.” It reveals nothing more about the contents of, or activities in, the residence. The Supreme Court noted in Smith v. Maryland that the wiretap in Katz was significantly more intrusive than was the pen register. 442 U.S. at" }, { "docid": "23508743", "title": "", "text": "threatened by possible skyjacking. See United States v. Edwards, 498 F.2d 496 (2d Cir. 1974); United States v. Albarado, supra. Here the contraband being sought presents no danger to the passengers or to the airplane itself. Moreover, the baggage was searched after the plane had arrived at its destination and the baggage had been unloaded. The question, therefore, is whether the dog-search can be upheld on other grounds or whether it penetrated an area as to which there is a normal or justifiable expectation of privacy and thus violated the Fourth Amendment. Surely the use of a dog to sniff an alighting passenger or passerby for the purpose of determining the presence of marijuana on his person would not be permitted any more than would be the use of a sophisticated detection device to search his person for contraband. However, one who consigns luggage to the common baggage area of a public carrier, airport or similar facility cannot expect to enjoy as much privacy with respect to the bag as he would with respect to his person or property carried by him personally into, on or from the carrier or facility. It is common knowledge that luggage turned over to a public carrier will be handled by many persons who, although not permitted to open it without the owner’s permission, may feel it, weigh it, check its locks, straps and seams to insure that it will not fall apart in transit, and shake it to determine whether the contents are fragile or dangerous. See United States v. Johnston, 497 F.2d 397 (9th Cir. 1974). Since a person’s expectation of privacy with respect to his baggage declines as the anticipated public access to the baggage increases, it is not unreasonable, where the police have reasonable grounds to suspect the presence of contraband, to permit use of an external method or device to determine whether the baggage contains contraband. On this ground I would uphold the search here. However, I would strictly limit such a search to cases where there are grounds for such suspicion, similar to or stronger than that present" }, { "docid": "23508742", "title": "", "text": "device but the fact of the intrusion into a closed area otherwise hidden from human view, which is the hallmark of any search. If, as we have held, examination of carry-on luggage and individual passengers by a magnetometer or X-ray machine amounts to a search within the prohibition of the Fourth Amendment because it discloses hidden items within areas where there is a normal expectation of privacy, United States v. Albara-do, supra, 495 F.2d at 802-03, then the intrusion of a sniffing dog in search of marijuana must also fall within that prohibition when directed at hidden areas where there is similarly a normal expectation of privacy. Setting aside the expectation of privacy issue for a moment, the circumstances justifying a warrantless search of boarding passengers and their hand luggage are not present here. We have upheld warrantless magnetometer searches against Fourth Amendment attack, at least where advance notice has been given, on the ground that they represent a minimal intrusion that is necessary and reasonable to protect against the danger to life and property threatened by possible skyjacking. See United States v. Edwards, 498 F.2d 496 (2d Cir. 1974); United States v. Albarado, supra. Here the contraband being sought presents no danger to the passengers or to the airplane itself. Moreover, the baggage was searched after the plane had arrived at its destination and the baggage had been unloaded. The question, therefore, is whether the dog-search can be upheld on other grounds or whether it penetrated an area as to which there is a normal or justifiable expectation of privacy and thus violated the Fourth Amendment. Surely the use of a dog to sniff an alighting passenger or passerby for the purpose of determining the presence of marijuana on his person would not be permitted any more than would be the use of a sophisticated detection device to search his person for contraband. However, one who consigns luggage to the common baggage area of a public carrier, airport or similar facility cannot expect to enjoy as much privacy with respect to the bag as he would with respect to" }, { "docid": "8381586", "title": "", "text": "channels. See Place, 462 U.S. at 704, 707, 103 S.Ct. at 2643, 2644-45 (permitting the dog sniff of luggage in an airport, a public place where drug courier activity is “inherently transient”). Nor is this case like Horton v. Goose Creek Indep. Sch. Dist., 690 F.2d 470, 477 (5th Cir.1982), in which the Fifth Circuit held that the dog-sniffing of student lockers in public hallways and automobiles parked on public parking lots did not constitute a search. Rather, this case is much closer to United States v. Thomas, 757 F.2d 1359, 1367 (1985), in which the Second Circuit held that the use of a dog to sniff for narcotics outside an apartment constituted a search that, in the absence of probable cause and a warrant, violated the Fourth Amendment. Recognizing the heightened privacy interest that persons have in their homes, the Second Circuit noted that a practice that is not intrusive in a public airport can certainly be intrusive when employed at a person’s home. Id. at 1366. The court decided that the defendant had a “legitimate expectation that the contents of his closed apartment would remain private, and such contents could not be ‘sensed’ from outside his door” without the significant enhancement provided by the trained dog. Id. at 1367. Similarly, guests of a hotel have a legitimate expectation that the contents of their closed hotel room will remain private to some degree. See Stoner, 376 U.S. at 490, 84 S.Ct. at 893-94 (hotel rooms protected under the Fourth Amendment to the same extent as homes); Rambo, 789 F.2d at 1295 (same). By its nature, of course, a hotel is less private than an apartment or a home. Nonetheless, hotel personnel limit access to the rooms and hotel guests, in large part, maintain control over who enters their rooms. While the corridor of a hotel is shared by guests and hotel personnel alike, it is not a public area akin to an airport or a commercial bus. Neither guests nor the hotel personnel expect to have police officers, much less large German Shepherds, patrolling the hotel hallways. The majority," }, { "docid": "22246003", "title": "", "text": "human. One can imagine the embarrassment which a young adolescent, already self-conscious about his or her body, might experience when a dog, being handled by a representative of the school administration, enters the classroom specifically for the purpose of sniffing the air around his or her person. We need only look at the record in this case to see how a dog’s sniffing technique— i.e., sniffing around each child, putting his nose on the child and scratching and manifesting other signs of excitement in the case of an alert — is intrusive. The SAI representative explained that Doberman pinschers and German shepherds were used precisely because of the image maintained by the large dogs. Newman depo. at 16. Plaintiff, Heather Horton, described what happened when the dog entered the classrooms: Well, we were in the middle of a major French exam and the dog came in and walked up and down the aisles and stopped at every desk and sniffed on each side all around the people, the feet, the parts where you keep your books under the desk. H. Horton depo. at 3. Ms. Horton went on to express her fear of the large dogs. Id. at 12. The SAI representative testified that the dogs put their noses “up against” the persons they are investigating. Newman depo. at 43. On the basis of our examination of the record which indicates the degree of personal intrusiveness involved in this type of activity, we hold that sniffing by dogs of the students’ persons in the manner involved in this case is a search within the purview of the fourth amendment. We need not decide today whether the use of dogs to sniff people in some other manner, e.g., at some distance, is a search. Our decision that the sniffing is a search does not, however, compel the conclusion that it is constitutionally impermissible. The fourth amendment does not prohibit all searches; it only restricts the government to “reasonable” searches. The reasonableness of the procedure turns in this case on the school environment, to be discussed in Part II.B. But the reasonableness" } ]

[ { "docid": "22893879", "title": "", "text": "for the complaint was the charge that Serrao suffered reprisal for having filed the March 23 formal grievance, in which he also referred to the 1991 OIG investigation. In Ward, we stated that an employee “must ‘give the Office of Special Counsel sufficient basis to pursue an investigation which might have led to corrective action.’ ” 981 F.2d at 526 (quoting Knollenberg v. Merit Sys. Protection Bd., 953 F.2d 623, 626 (Fed.Cir.1992)). We also have referred to “the need for an employee to articulate with reasonable clarity and precision [before OSC] the basis for his request for corrective action under the WPA.” Ellison, 7 F.3d at 1037. Most recently, in Mintzmyer v. Department of Interior, we held that the Board lacked jurisdiction, in an IRA appeal, with respect to certain reprisals an employee allegedly suffered as a result of having made protected disclosures under section 2302(b)(8). In her complaint with the Office of Special Counsel, Mintzmyer alleged that her agency had taken four specified personnel actions against her in reprisal for whistleblowing. 84 F.3d at 422. She also alleged generally that she had been “‘subjected to constructive discharge by harassing and retaliatory behavior.’ ” Id. (quoting allegations in OSC complaint). It was not until she appealed to the Board, however, that Mintzmyer specified what this “harassing and retaliatory behavior” was. She did so by listing four asserted acts of reprisal. Id. In affirming the Board’s dismissal of Mintzmyer’s IRA appeal insofar as it related to these four acts, we stated that Mintzmyer’s failure to raise these alleged reprisal actions before the OSC deprived the Board of jurisdiction over them. We stated that, as far as these alleged acts of reprisal were concerned, Mintzmyer had failed to meet Ellison’s requirement of articulating “with reasonable clarity and precision the basis for [her] request for corrective action 'under the WPA” to the Office of Special Counsel. Id. Under 5 U.S.C. § 1214(a)(3), an employee is required to “seek corrective action from the Office of Special Counsel before seeking corrective action from the Board.” Based upon Ward, Ellison, and Mintzmyer, we are not prepared" } ]

[ { "docid": "23013658", "title": "", "text": "dismissed the appeal, concluding that the Board could only consider the allegations raised to the OSC, and each of those allegations involved personnel actions taken or proposed against Stoyanov’s brother. Thus, the AJ concluded that the Board has jurisdiction over IRA- appeals alleging violations of the Whistleblower Protection Act (“WPA”) for federal government employees, codified at 5 U.S.C. § 2302(b)(8) & (9), only for personnel actions taken or proposed with respect to the IRA appellant himself. Stoyanov appealed the AJ’s initial decision to the full Board, which denied his petition for review, thereby rendering the AJ’s decision final. See 5 C.F.R. § 1201.113(b). Stoyanov timely appealed to this court. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9) (2000). DISCUSSION The scope of our review in an appeal from a Board decision is limited. We must affirm the decision of the Board unless it is (1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained without procedures required by law, rule, or regulation having been followed; or (3) unsupported by substantial evidence. 5 U.S.C. § 7703(c) (2000). Whether the Board has jurisdiction to adjudicate an appeal is a question of law that we review de novo. Campion v. Merit Sys. Prot. Bd., 326 F.3d 1210, 1213 (Fed.Cir.2003). Stoyanov, as petitioner, has the burden of establishing the Board’s jurisdiction by a preponderance of the evidence. Id. (citing 5 C.F.R. § 1201.56(a)(2) (2001)). The Board’s jurisdiction is not plenary, but is limited to those matters over which it has been granted jurisdiction by law, rule, or regulation. Clark v. Merit Sys. Prot. Bd., 361 F.3d 647, 650 (Fed.Cir.2004). To establish the Board’s jurisdiction over an IRA appeal, we have held that an appellant must demonstrate that he exhausted his administrative remedies before the OSC and make non-frivolous allegations that: (1) he engaged in whistle-blowing activity by making a protected disclosure under 5 U.S.C. § 2302(b)(8); and (2) the disclosure was a contributing factor in the agency’s decision to take or fail to take a personnel action as defined by 5 U.S.C. § 2302(a). Yunus v. Dep’t" }, { "docid": "22893868", "title": "", "text": "things, it includes the actions listed in 5 U.S.C. § 7512 (as well as “other disciplinary or corrective action”) and performance evaluations. 5 U.S.C. § 2302(a)(2)(A)(iii), (viii); 5 C.F.R. § 1209.4(a)(3), (8). Finally, 5 U.S.C. § 1214(a)(3) provides that, “[e]xcept in a case in which an employee ... has the right to appeal directly to the Merit Systems Protection Board under any law, rule, or regulation, any such employee ... shall seek corrective action from the Special Counsel before seeking corrective action from the Board.” Only after OSC has notified the employee that it has terminated its investigation or has failed to commit to pursuing corrective action within 120 days may that person file an IRA appeal with the Board under section 1221(a). 5 U.S.C. § 1214(a)(3). Thus, in order to establish the Board’s jurisdiction over his IRA appeal, Serrao had to show by preponderant evidence that (1) he engaged in whistleblowing activity by making a disclosure protected by 5 U.S.C. § 2302(b)(8); (2) the agency took or threatened to take a “personnel action” against him as defined in 5 U.S.C. § 2302(a)(2)(A); (3) he sought corrective action from OSC; and (4) he exhausted corrective action proceedings before OSC. Mintzmyer v. Department of Interior, 84 F.3d 419, 422 (Fed.Cir.1996). II. We hold that the AJ did not err in dismissing Serrao’s IRA appeal for lack of jurisdiction. The ground for our holding is that, as explained below, before bringing his appeal, Serrao did not seek corrective action from OSC with respect to reprisal for having made disclosures protected by 5 U.S.C. § 2302(b)(8). A. In his March 10 complaint to OSC Serrao claimed that Ms. Moran had retaliated against him for his having filed a grievance against her in connection with his transfer from Kennedy Airport. He stated: “[S]he has threatened to take a personnel action against me as a result of my filing this grievance.” Thereafter, on October 12, Ser-rao reported what he believed were additional acts of retaliation on Ms. Moran’s part. In short, Serrao complained to OSC about various alleged acts of reprisal (reprimands and a marginal" }, { "docid": "23508416", "title": "", "text": "evidencing OPM’s unlawful interpretation of section 831.201(a)(13), and that this disclosure was protected under the WPA. OSC did not act on Francisco’s complaint. Thereafter, Francisco filed an Individual Right of Action (“IRA”) appeal to the Board, alleging that OPM declined to reopen his claim for retirement annuity in reprisal for' his having made a protected disclosure under the WPA. PROCEEDINGS BELOW In its initial decision, the Board dismissed Francisco’s appeal after finding: (1) that Francisco was neither an “employee” nor an “applicant for employment,” and therefore lacked standing to bring a claim under the WPA; (2) that even if Francisco had been an “employee” or “applicant for employment” during the relevant period, his claimed disclosures involved the disclosure of information during the adjudicative process and as such were not protected under the WPA; and (3) that Francisco’s claims were barred by res judicata. Francisco v. Office of Pers. Mgmt., Docket No. SE-1221-01-033-W-1 (M.S.P.B. Feb. 16, 2001). Francisco.petitioned to the full Board, which denied his petition on August 30, 2001. Francisco timely appealed to this court. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9). STANDARD OF REVIEW Decisions of the Board must be sustained unless they are: “(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained without procedures required by law, rule, or regulation having been followed; or (3) unsupported by substantial evidence.” 5 U.S.C. § 7703(c) (2000); Yates v. Merit Sys. Prot. Bd., 145 F.3d 1480, 1483 (Fed.Cir.1998). Whether the Board possessed jurisdiction is a question of law that we review without deference. Herman v. Dep’t of Justice, 193 F.3d 1375, 1378 (Fed.Cir.1999). DISCUSSION To maintain an IRA action under the WPA, a petitioner must establish Board jurisdiction by exhausting all administrative remedies before OSC and by making non-frivolous allegations' supported by affidavits or admissible evidence that “(1) he engaged, in whistleblowing activity by making a protected disclosure under 5 U.S.C. § 2302(b)(8), and (2) the disclosure was a contributing factor in the agencys, decision to -take or fail to take a personnel action defined by 5 U.S.C. § 2302(a).” Yunus v." }, { "docid": "23194433", "title": "", "text": "last time, we will explain what is expected of the agency, the Board, and, if an appeal is involved, the Department of Justice in handling personnel cases brought to the MSPB. With regard to the merits of Mr. Spencer’s appeal in this case, on the basis of our independent review of the record we conclude that the decision of the Board, under our standard of review, should be upheld; see 5 U.S.C. § 7708(c). Accordingly, the dismissal is affirmed. BACKGROUND Mr. Spencer filed an IRA appeal with the Board on July 23, 2001. The AJ assigned to his case issued an order to show cause why the appeal should not be dismissed without a hearing. The order stated that it appeared “that the appellant has failed to raise non-frivolous allegations of fact which, if proven would show that he gave [the Office of Special Counsel (OSC) ] a sufficient basis on which to pursue an investigation into the disclosures and actions alleged in his appeal.” Spencer v. Dep’t of the Navy, No. SF-1221-01-0526W-1 (M.S.P.B. Aug.6, 2001). Mr. Spencer’s response to the show cause order corrected the typographical errors relating to the date of his allegedly protected disclosures and included a letter from OSC establishing that Mr. Spencer had exhausted his administrative remedies before OSC, one of the elements of an IRA appeal. Mr. Spencer also reiterated his allegations regarding other elements of his IRA appeal, viz., that he made protected disclosures and that the agency threatened to take a prohibited personnel action against him. In a subsequent order, the AJ stated that in order to establish jurisdiction over an IRA appeal, the appellant must show that he made a disclosure protected under the Whistleblower Protection Act (WPA); that the agency took or failed to take, or threatened to take or fail to take, a personnel action prohibited by the WPA; and that the appellant has exhausted his administrative remedies before OSC. Spencer v. Dep’t of the Navy, No. SF-1221-01-0526-W-1, slip op. at 1-2 (M.S.P.B. Aug.21, 2001) (“Order for Hearing ”). The AJ continued: In order to be entitled to a" }, { "docid": "22034894", "title": "", "text": "contends that as a result of these disclosures of gross agency mismanagement the IG ordered an audit of the aggrieved selection process, which ultimately led to the third vacancy announcement. He maintains that he was not selected for that position in reprisal for this whistle-blowing to the 1G. The Board, however, made no findings regarding these alleged disclosures to the agency IG because Ellison failed to explicitly raise them first with the OSC. He raised them clearly only after his appeal to the Board in a second complaint dated September 25, 1991. That was too late. Thus, we may not consider them here. The Board's jurisdiction is limited by statute to those actions made appealable to it by law, rule, or regulation, 5 U.S.C. § 1204, 7701(a) (1988), and the burden was on Ellison to establish that such jurisdiction existed, Roche v. United States Postal Serv., 828 F.2d 1555, 1557 (Fed.Cir.1987). The Board's jurisdiction over Ellison's IRA appeal was limited by section 1221(a) to those issues raised before the OSC. Given the OSC's finding that Ellison's timely allegation of reprisal was based only on an unprotected disclosure made during the grievance process, the Board was correct in declining to consider Ellison's disclosure to the agency IG, and it properly dismissed his IRA appeal. This case illustrates the need for an employee to articulate with reasonable clarity and precision the basis for his request for corrective action under the WPA. As we stated in Ward~, [t]he purpose of the requirement that an employee exhaust his or her remedies before the Special Counsel before appealing to the Board is to give the Special Counsel the opportunity to take corrective action before involving the Board in the case. For the exhaustion remedy to serve its intended purpose, however, the employee must inform the Special Counsel of the precise ground of his charge of whistle-blowing. He must \"give the Office of Special Counsel sufficient basis to pursue an investigation which might have led to corrective action.\" Knollenberg, 953 F.2d at 626. 981 F.2d at 526. Ellison's failure to do so deprived the Board of" }, { "docid": "23006369", "title": "", "text": "duties and refusing to reclassify her as a GS-12. We recognize that in her hearing before the administrative judge, Briley gave a more detailed account of her whistleblowing activities than she did in her letters to the OSC. However, Briley’s letters to the OSC nevertheless contain the core of Briley’s retaliation claim. They gave the OSC sufficient basis to pursue an investigation, and they therefore satisfy Briley’s obligation to seek corrective action and exhaust her remedies before the OSC. The cases cited by the government do not support its contention that Briley failed to exhaust her remedies before the OSC. For example, in Mintzmyer v. Dep’t of the Interior, 84 F.3d 419, 422 (Fed.Cir.1996), the appellant alleged a set of retaliatory actions before the Board that she had not specified before the OSC. Here, in contrast, Briley informed the OSC of the basis for her retaliation claim; she then added further detail to her claim before the Board. In doing so, Briley complied with the requirement that she seek corrective action from the OSC. IV To establish a prima facie case of retaliation for whistleblowing activity, an employee must show both that she engaged in whistleblowing activity by making a disclosure protected under 5 U.S .C. § 2302(b)(8) and that the protected disclosure was a contributing factor in a personnel action. See 5 U.S.C. §§ 1221(e)(1), 2302(b)(8). If a plaintiff establishes a pri-ma facie case of retaliation for whistle-blowing, corrective action must be ordered unless “the agency demonstrates by clear and convincing evidence that it would have taken the same personnel action in the absence of such disclosure.” 5 U.S.C. § 1221(e)(2); Carr v. Social Sec. Admin., 185 F.3d 1318, 1322 (Fed.Cir.1999). A protected disclosure is a disclosure which an employee reasonably believes evidences “(i) a violation of any law, rule, or regulation, or (ii) gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety.” 5 U.S.C. § 2302(b)(8). Before the Board, Briley asserted that she made 42 separate protected disclosures. The first 21 disclosures dealt with issues" }, { "docid": "22893887", "title": "", "text": "had completed this step. See Brief for Respondent Merit Systems Protection Board at 3 n. 2 (Sept. 18, 1995) (“He had previously sought corrective action from the Office of Special Counsel (OSC) as required by 5 U.S.C. § 1221. He filed his IRA appeal after the requisite 120 days had passed without action by OSC. 5 U.S.C. § 1214(a)(3)(B).”) Mr. Serrao had filed two complaints with the OSC, plus supplementary communications whenever some new adverse event happened. Indeed, the panel majority appears to have selected this ground without reference to the record, for the record supports the Board’s recognition that the requisite administrative remedies were sought and that the requisite time had elapsed. Precedent requires that appellate review of an administrative decision be on the same ground as that considered by the administrative agency. The employee must “articulate with reasonable clarity and precision [before the OSC] the basis for his request for corrective action under the WPA.” Ellison v. Merit Sys. Protection Bd., 7 F.3d 1031, 1037 (Fed.Cir.1993); accord Mintzmyer v. Department of Interior, 84 F.3d 419, 422 (Fed.Cir.1996). We require reasonable clarity to “give the Office of Special Counsel sufficient basis to pursue an investigation which might have led to corrective action.” Knollenberg v. Merit Sys. Protection Bd., 953 F.2d 623, 626 (Fed.Cir.1992). The panel majority holds that Mr. Serrao’s complaint did not clearly notify the Special Counsel of violations of § 2302(b)(8) because his complaints related only to § 2302(b)(9). However, Mr. Serrao’s Special Counsel complaints refer not only to his grievances, but directly report the asserted wrongdoing. He also directly reported to Commerce Department management “all of the things that were going on in the NYFO concerning the SAIC and her abuse of authority, etc.” Thus, as discussed more fully below, Mr. Serrao exhausted his administrative remedies and raised a jurisdictionally valid IRA appeal before the Board. The court also holds that Mr. Serrao did not exhaust his administrative remedies in alleging reprisal as a result of Ms. Moran’s belief that he was the anonymous informant in the 1991 Inspector General investigation. However, Mr. Serrao’s March 10," }, { "docid": "23013659", "title": "", "text": "by substantial evidence. 5 U.S.C. § 7703(c) (2000). Whether the Board has jurisdiction to adjudicate an appeal is a question of law that we review de novo. Campion v. Merit Sys. Prot. Bd., 326 F.3d 1210, 1213 (Fed.Cir.2003). Stoyanov, as petitioner, has the burden of establishing the Board’s jurisdiction by a preponderance of the evidence. Id. (citing 5 C.F.R. § 1201.56(a)(2) (2001)). The Board’s jurisdiction is not plenary, but is limited to those matters over which it has been granted jurisdiction by law, rule, or regulation. Clark v. Merit Sys. Prot. Bd., 361 F.3d 647, 650 (Fed.Cir.2004). To establish the Board’s jurisdiction over an IRA appeal, we have held that an appellant must demonstrate that he exhausted his administrative remedies before the OSC and make non-frivolous allegations that: (1) he engaged in whistle-blowing activity by making a protected disclosure under 5 U.S.C. § 2302(b)(8); and (2) the disclosure was a contributing factor in the agency’s decision to take or fail to take a personnel action as defined by 5 U.S.C. § 2302(a). Yunus v. Dep’t of Veterans Affairs, 242 F.3d 1367, 1371 (Fed.Cir.2001). The Board’s jurisdictional statute states that the right to file an IRA appeal is limited to employees, former employees, or applicants for employment “with respect to any personnel action taken, or proposed to be taken, against such employee, former employee, or applicant for employment.” 5 U.S.C. § 1221(a). Based upon this statute, the Board dismissed for lack of jurisdiction on the ground that Stoyanov failed to make an allegation to the OSC involving a personnel action taken or proposed to be taken against Stoyanov himself. On appeal, Stoyanov argues that the Board erred in three ways: (1) that the anti-retaliation nature of the WPA requires it to be read broadly to encompass retaliation by an agency against a whistle-blower’s family members; (2) that the Board failed to properly consider all of the allegations that he made to the OSC; and (3) that the Board erred in relying on Garcia v. Department of Homeland Security, 437 F.3d 1322 (Fed.Cir.2006) (en banc), in assessing its jurisdiction. None of these" }, { "docid": "23276647", "title": "", "text": "his normal duties, we reverse the Final Decision and remand the case to the Board for further proceedings consistent with this opinion. BACKGROUND I. On August 24, 2005, Mr. Kahn filed a whistleblowing complaint with the United States Office of Special Counsel (“OSC”). Id. at 2. In his complaint, Mr. Kahn alleged that certain reports he made to his superiors constituted protected disclosures under the WPA. Id. Mr. Kahn further alleged that the DEA had engaged in a prohibited personnel practice in retaliation for those disclosures by transferring him to the Atlanta Field Division. Id. On July 5, 2006, OSC gave Mr. Kahn notice that it had terminated its inquiry into his complaint and would not be taking corrective action. Id. Mr. Kahn thereafter filed his IRA appeal with the Board. II. The Board has jurisdiction over an IRA appeal “ ‘if the appellant has exhausted administrative remedies before ... OSC and makes “non-frivolous allegations” that (1) he engaged in whistleblowing activities by making a protected disclosure under 5 U.S.C. § 2302(b)(8), and (2) the disclosure was a contributing factor in the agency’s decision to take a personnel action as defined by 5 U.S.C. § 2302(a).’ ” Fields v. Dep’t of Justice, 452 F.3d 1297, 1302 (Fed.Cir.2006) (quoting Yunus v. Dep’t of Veterans Affairs, 242 F.3d 1367, 1371 (Fed.Cir.2001)). A protected disclosure under section 2302(b)(8) is defined in relevant part as (A) any disclosure of information by an employee or applicant which the employee or applicant reasonably believes evidences— (i) a violation of any law, rule, or regulation, or (ii) gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety.... The AJ found that Mr. Kahn had demonstrated that he had exhausted his remedies before OSC. Final Decision at 2. In addition, the AJ noted that a transfer or reassignment is a personnel action under 5 U.S.C. § 2302(a)(2). Id. at 3. The AJ then turned to the question of whether Mr. Kahn had made non-frivolous allegations of protected disclosures under 5 U.S.C. § 2302(b)(8) so as to" }, { "docid": "23013657", "title": "", "text": "20, 2006, the OSC informed Stoyanov that it had terminated its inquiry into his allegations, and that he could seek corrective action from the Board for any personnel action taken or proposed to be taken against him due to the alleged whistle-blowing activity that was the subject of his OSC complaint. Stoyanov thereafter filed a timely IRA appeal with the Board, pursuant to 5 U.S.C. § 1221. Upon review of Stoyanov’s appeal, an Administrative Judge (“AJ”) issued an order to show cause, ordering Stoyanov to provide evidence and argument to prove that his claim was within the Board’s jurisdiction. Specifically, the AJ noted that Stoyanov’s OSC complaint was limited to allegations of personnel actions that the agency took or proposed with respect to his brother, Dr. Yuri Stoy-anov. Stoyanov responded with a pleading that the AJ characterized as “reiterating] many of the allegations set forth in his initial submission.” The agency also responded, arguing that Stoyanov’s appeal should be dismissed for lack of jurisdiction because none of the alleged actions involved Stoyanov himself. The AJ dismissed the appeal, concluding that the Board could only consider the allegations raised to the OSC, and each of those allegations involved personnel actions taken or proposed against Stoyanov’s brother. Thus, the AJ concluded that the Board has jurisdiction over IRA- appeals alleging violations of the Whistleblower Protection Act (“WPA”) for federal government employees, codified at 5 U.S.C. § 2302(b)(8) & (9), only for personnel actions taken or proposed with respect to the IRA appellant himself. Stoyanov appealed the AJ’s initial decision to the full Board, which denied his petition for review, thereby rendering the AJ’s decision final. See 5 C.F.R. § 1201.113(b). Stoyanov timely appealed to this court. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9) (2000). DISCUSSION The scope of our review in an appeal from a Board decision is limited. We must affirm the decision of the Board unless it is (1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained without procedures required by law, rule, or regulation having been followed; or (3) unsupported" }, { "docid": "22201252", "title": "", "text": "retaliation for' her whistleblowing activities — namely, the September 20,1991 letter. On March 14, 1995, the OSC informed King that its investigation into her case had been terminated. King filed an IRA with the Board’s Dallas Regional Office as authorized under 5 U.S.C § 1221(a). In his initial decision, the AJ found that King had demonstrated adequately that the September 20 letter constituted a protected disclosure and hence a whistleblowing activity according to 5 U.S.C. § 2302(b)(8). The AJ determined, however, that the Progress Review was not a “personnel action” within the meaning of 5 U.S.C. § 2302(a)(2)(A) (listing eight types of personnel actions, including “a performance evaluation”). On that basis, the AJ dismissed the case for lack of jurisdiction. King filed a timely appeal, contending that the AJ improperly weighed the evidence she presented to support her IRA and incorrectly concluded that her February 16, 1994 Progress Report was not a “performance evaluation.” II. ANALYSIS OF KING’S IRA According to the WPA, a government official may not take or fail to take, or threaten to take or fail to take, a personnel action with respect to any employee ... because of ... any disclosure of information by an employee ... which the employee ... reasonably believes evidences ... gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety. 5 U.S.C. § 2302(b)(8)(A)(ii) (emphasis added). To maintain an IRA under the WPA, a petitioner must establish Board jurisdiction by a preponderance of the evidence which demonstrates that: 1) she engaged in a whistle-blowing activity by making a disclosure protected under 5 U.S.C. § 2302(b)(8); 2) based on the protected disclosure, the agency took or failed to take, or threatened to take or fail to take, a “personnel action” as defined in 5 U.S.C. § 2302(a); and 3) her administrative remedies, including those available through the OSC, have been exhausted. See 5 U.S.C. § 1214(a)(3); 5 C.F.R. § 1201.56(a)(2)(i); Serrao v. Merit Sys. Protection Bd., 95 F.3d 1569, 1574 (Fed.Cir.1996); Mintzmyer v. Department of the Interior, 84 F.3d 419," }, { "docid": "23006366", "title": "", "text": "against Ms. Briley by the Board, but that is not our function. Pursuant to 5 U.S.C. § 7703(c), we must uphold the Board’s decision unless we find it to be: “(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained without procedures required by law, rule, or regulation having been followed; or (3) unsupported by substantial evidence.” See Chase-Baker v. Dep’t of Justice, 198 F.3d 843, 845 (Fed.Cir.1999). In addition, the Board’s credibility determinations are “virtually unreviewable on appeal.” Rogers v. Dep’t of Defense Dependents Sch., 814 F.2d 1549, 1554 (Fed.Cir.1987). III Under 5 U.S.C. § 1214(a)(3), an employee is required to “seek corrective action from the Special Counsel before seeking corrective action from the Board.” The Board’s jurisdiction is limited to issues raised before the OSC. See Ellison v. Merit Sys. Prot. Bd., 7 F.3d 1031, 1037 (Fed.Cir.1993). An employee must “inform the Special Counsel of the precise ground of his charge of whistleblowing” and “must ‘give the Office of Special Counsel sufficient basis to pursue an investigation which might have led to corrective action.’ ” Ward v. Merit Sys. Prot. Bd., 981 F.2d 521, 526 (Fed.Cir.1992) (quoting Knollenberg v. Merit Sys. Prot. Bd., 953 F.2d 623, 626 (Fed.Cir.1992)). Briley bears the burden of showing that she sought corrective action from the OSC and that she exhausted her remedies there. See Serrao v. Merit Sys. Prot. Bd., 95 F.3d 1569, 1574 (Fed.Cir.1996). In a footnote, the Board held that Briley had failed to demonstrate that she had requested corrective action from the OSC. See Initial Decision, Briley v. Nat’l Archives and Records Admin., No. SL-1221-95-0183-B-1, at 151 n. 151, 83 M.S.P.R. 380 (M.S.P.B. Oct.21, 1998) (“Initial Decision”). The government urges that we affirm on this ground. We decline to do so, as we find that Briley complied with the requirement that she seek corrective action from the OSC. On September 6, 1994, Briley filed with the OSC a complaint alleging that the agency downgraded her job responsibilities in retaliation for complaints she made “commencing in April of 1994” and refused to reclassify her" }, { "docid": "22893886", "title": "", "text": "is jurisdiction. The Board held that if whistleblowing disclosures were made in a grievance, the Whistleblower Protection Act did not apply. The Board ignored all of Mr. Serrao’s asserted whistle-blowing disclosures outside of the grievances, and did not comment on their existence. Thus the Board held that Mr. Serrao could not take an Individual Right of Action appeal to the Board. In so holding, the Board violated and misapplied Federal Circuit precedent, as well as its own precedent. This is the jurisdictional issue on appeal. The panel majority, however, does not review this issue. Instead, the panel majority has decided the case sua sponte on an issue that was not relied on by the Board, not argued by any party, not supported by the record, and not before us. The opinion of the administrative judge, from which this appeal is taken, did not challenge the exhaustion of remedies before the Special Counsel. Neither side appealed the issue. The Board’s brief as Respondent not only does not dispute this point, but affirmatively states that Mr. Serrao had completed this step. See Brief for Respondent Merit Systems Protection Board at 3 n. 2 (Sept. 18, 1995) (“He had previously sought corrective action from the Office of Special Counsel (OSC) as required by 5 U.S.C. § 1221. He filed his IRA appeal after the requisite 120 days had passed without action by OSC. 5 U.S.C. § 1214(a)(3)(B).”) Mr. Serrao had filed two complaints with the OSC, plus supplementary communications whenever some new adverse event happened. Indeed, the panel majority appears to have selected this ground without reference to the record, for the record supports the Board’s recognition that the requisite administrative remedies were sought and that the requisite time had elapsed. Precedent requires that appellate review of an administrative decision be on the same ground as that considered by the administrative agency. The employee must “articulate with reasonable clarity and precision [before the OSC] the basis for his request for corrective action under the WPA.” Ellison v. Merit Sys. Protection Bd., 7 F.3d 1031, 1037 (Fed.Cir.1993); accord Mintzmyer v. Department of Interior, 84" }, { "docid": "22422800", "title": "", "text": "Board with respect to prohibited personnel actions. The WPA requires that, before instituting an IRA before the Board, the employee must first seek corrective relief from the OSC, unless the personnel action is otherwise appealable to the Board. See 5 U.S.C. § 1214(a)(3) (1994). Once the employee has sought corrective relief from the OSC, the OSC is required to “investigate the allegation to the extent necessary to determine whether there are reasonable grounds to believe that a prohibited personnel practice has occurred, exists, or is to be taken.” 5 U.S.C. § 1214(a)(1)(A). If the OSC either notifies the employee that the investigation has been terminated or does not notify the employee within 120 days after the employee filed the complaint that the OSC intends to pursue corrective action, only then may the employee file an appeal with the Board. See 5 U.S.C. § 1214(a)(3)(B); Maraño, 2 F.3d at 1139-40 (citing Ward v. Merit Sys. Protection Bd., 981 F.2d 521, 523 (Fed.Cir.1992)). To prevail in a ease of retaliation for whistleblowing under the WPA, an employee .must show by a preponderance of the evidence that a protected disclosure was made and that it was a contributing factor in the personnel action. See 5 U.S.C. § 1221(e)(1); 5 C.F.R. § 1209.7 (1997); Ellison, 7 F.3d at 1034. If an employee fails to demonstrate that the aggrieved personnel action was the result of a prohibited personnel practice as described in § 2302(b)(8), he is not entitled to corrective relief under the WPA. See Id. Thus, in order to establish the Board’s jurisdiction over his IRA, Willis must first allege that he has made a disclosure that is protected under section 2302(b)(8). On appeal, Willis admits that the letters written to the OSC and to the CSC were made after the effective date of his retirement and therefore cannot constitute protected disclosures within the purview of the WPA. Instead, Willis argues that his complaints to supervisors regarding the reversal of his findings in 1992 constitute protected disclosures in and of themselves. Willis states that when six of his findings in 1992 were reversed, he" }, { "docid": "22893881", "title": "", "text": "to hold that this requirement is met when, as in Serrao’s case, an employee expressly seeks corrective action from OSC for reprisal for the exercise of grievance rights (a matter not within the Board’s jurisdiction) and, in so doing, includes a statement that his supervisor believes him to be the anonymous source of allegations that led to an investigation that took place more than two years before the OSC complaint was filed. For us to so hold, we would have to ignore the requirement stated in Ellison that an employee’s request for corrective action be articulated “with reasonable clarity and precision.” This requirement is particularly important in a case such as this, where reading the OSC complaint as seeking corrective action for a section 2302(b)(8) prohibited personnel practice would have the effect of blurring the distinction between section 2302(b)(8) and section 2302(b)(9)(A) prohibited personnel practices articulated in Spruill. The Board did not have jurisdiction over Serrao’s claim of reprisal relating to the 1991 OIG investigation. CONCLUSION Serrao was not the subject of a personnel action appealable to the Board as an adverse action under 5 U.S.C. § 7701(a)(1). Accordingly, the only way he could bring his IRA appeal to the Board was by first seeking corrective action from OSC for reprisal for having made disclosures protected under 5 U.S.C. § 2302(b)(8), as required by 5 U.S.C. § 1214(a)(3). For the reasons set forth above, Serrao did not meet this requirement. Accordingly, the AJ did not err in dismissing Serrao’s appeal for lack of jurisdiction. COSTS Each party shall bear its own costs. AFFIRMED. . This grievance was refiled on March 23, 1994. Accordingly, documents in the record generally refer to it as the March 23 grievance. To be consistent with the record, we will follow that approach here, except where the context requires otherwise. . OSC is responsible for receiving and investigating allegations of prohibited personnel practices under the WPA. 5 U.S.C. § 1212(a). The statutory provisions relating to OSC are at 5 U.S.C. §§ 1211-19. . Citing 5 U.S.C. § 1214(a)(3), the applicable provision of the WPA, this regulation" }, { "docid": "22034895", "title": "", "text": "Ellison's timely allegation of reprisal was based only on an unprotected disclosure made during the grievance process, the Board was correct in declining to consider Ellison's disclosure to the agency IG, and it properly dismissed his IRA appeal. This case illustrates the need for an employee to articulate with reasonable clarity and precision the basis for his request for corrective action under the WPA. As we stated in Ward~, [t]he purpose of the requirement that an employee exhaust his or her remedies before the Special Counsel before appealing to the Board is to give the Special Counsel the opportunity to take corrective action before involving the Board in the case. For the exhaustion remedy to serve its intended purpose, however, the employee must inform the Special Counsel of the precise ground of his charge of whistle-blowing. He must \"give the Office of Special Counsel sufficient basis to pursue an investigation which might have led to corrective action.\" Knollenberg, 953 F.2d at 626. 981 F.2d at 526. Ellison's failure to do so deprived the Board of jurisdiction to hear his appeal for corrective action. The Board's decision to dismiss Ellison's IRA appeal was therefore supported by substantial evidence and was not arbitrary, capricious, an abuse of discretion, or contrary to law. CONCLUSION Ellison's complaint to the OSC failed to show entitlement to corrective action, and under the WPA, the Board was limited to the issues addressed by the OSC. The Board did not err in refusing to consider Ellison's assertions that he made a protected disclosure to the agency IG and its decision to dismiss Ellison's IRA appeal for lack of jurisdiction is affirmed. AFFIRMED." }, { "docid": "22034890", "title": "", "text": "at 692. Moreover, under the statutory scheme of the WPA, if the personnel action challenged by the employee is not otherwise directly appealable to the Board, the employee must first seek corrective action from the OSC. 5 U.S.C. §~ 1214(a)(3), 1221(a), (b). Only after the OSC has notified the employee that its investigation has been terminated, 5 U.S.C. § 1214(a)(3)(A)(i), (ii), or if no action has been taken by the OSC within 120 days, 5 U.S.C. § 1214(aX3)(B), may the employee seek corrective action from the Board. Not until the employee has exhausted this mandatory procedural route may he or she be entitled to file an IRA appeal under section 1221 to the Board. See Knollenberg v. Merit Sys. Protection Bd., 953 F.2d 623, 625-26 (Fed.Cir.1992). Ellison argues, as he did before the Board, that he complied with the procedural requirements for corrective action and that his complaint alleged that his third nonselection for promotion was in reprisal for a whistleblowing disclosure made to the agency IG, separate and apart from his disclosure made in the course of the agency grievance process. The law, however, is well settled that the mere recitation of a basis for jurisdiction by a party is not sufficient. Rather, substantive details establishing jurisdiction must be alleged in the complaint. See Livingston v. Derwinski, 959 F.2d 224, 225 (Fed.Cir.1992). Moreover, the test of the sufficiency of an employee's charges of whistle-blowing to the OSC is the statement that the employee makes in the complaint requesting corrective action under 5 U.S.C. § 1214, not the employee's post hoc characterization of those statements. Ward v. Merit Sys. Protection Bd., 981 F.2d 521, 526 (Fed.Cir.1992). Ellison's November 29, 1990 OSC complaint asserted that [o]n May 8, 1990, Phillip Foster, an employee at Crane and the job recommending official for the referenced position, held a planning meeting with his staff to discuss the upcoming job announcement for this position. During the meeting Mr. Foster stated there were only two people he would like to see in the position, Don Ellison or Rex Williams. He then stated that he would be" }, { "docid": "22422799", "title": "", "text": "take a personnel action as defined by 5 U.S.C. § 2302(a). See Spruill v. Merit Sys. Protection Bd., 978 F.2d 679, 688-89 (Fed.Cir.1992) (“[S]ubjeet-matter jurisdiction existed—as long as the petitioner asserted nonfrivolous claims.”). The petitioner must also demonstrate that his administrative remedies, including those available through the OSC, have been exhausted. See 5 U.S.C. § 1214(a)(3) (1994); Ellison, 7 F.3d at 1035-36. The Board has jurisdiction over otherwise unreviewable personnel actions where a petitioner can demonstrate jurisdiction under the WPA by alleging that a personnel action was taken against- him in retaliation for activities which are protected under the WPA. Such an action is a prohibited personnel practice and violates the WPA. See 5 U.S.C. §§ 1221(e)(1), 2302(b)(8) (1994); Maraño v. Department of Justice, 2 F.3d 1137, 1139 (Fed.Cir.1993) (citing Spruill v. Merit Sys. Protection Bd., 978 F.2d 679, 682 n. 5 (Fed.Cir.1992); Knollenberg v. Merit Sys. Protection Bd., 953 F.2d 623, 625 (Fed.Cir. 1992)). Section 1221(a) of title 5 of the U.S.Code creates a right in an individual to seek corrective relief from the Board with respect to prohibited personnel actions. The WPA requires that, before instituting an IRA before the Board, the employee must first seek corrective relief from the OSC, unless the personnel action is otherwise appealable to the Board. See 5 U.S.C. § 1214(a)(3) (1994). Once the employee has sought corrective relief from the OSC, the OSC is required to “investigate the allegation to the extent necessary to determine whether there are reasonable grounds to believe that a prohibited personnel practice has occurred, exists, or is to be taken.” 5 U.S.C. § 1214(a)(1)(A). If the OSC either notifies the employee that the investigation has been terminated or does not notify the employee within 120 days after the employee filed the complaint that the OSC intends to pursue corrective action, only then may the employee file an appeal with the Board. See 5 U.S.C. § 1214(a)(3)(B); Maraño, 2 F.3d at 1139-40 (citing Ward v. Merit Sys. Protection Bd., 981 F.2d 521, 523 (Fed.Cir.1992)). To prevail in a ease of retaliation for whistleblowing under the WPA, an employee" }, { "docid": "13348068", "title": "", "text": "prove the actual copying of any confidential information. Id. As a result, we held that “the action by the agency was of such a trivial nature that Dr. Herman could not have reasonably believed that the agency was violating a law, rule, or regulation within the meaning of the WPA.” Id. Similarly, Langer was unable to prove that a secretary had actually improperly viewed any grand jury material, and any actual viewing of grand jury material by a secretary would at most have been inadvertent. Moreover, the alleged violation concerned a rule not adopted by the agency, but rather a procedure personally established by Langer as an exception to general agency procedures regarding the handling of the pink envelopes. Thus, Langer could not have had a reasonable belief that a secretary’s opening of pink envelopes amounted to a violation of law, rule, or regulation within the meaning of the WPA. Because Langer, with respect to Disclosures 3, 4, and 5, only reported minor and inadvertent miscues occurring in the conscientious carrying out of a federal employee’s assigned duties, the Board was correct in concluding that Disclosures 3, 4, and 5 were not protected under the WPA. Disclosures 6 and 7 With respect to Disclosures 6 and 7, we agree with the Board that Lan-ger failed to exhaust his administrative remedies at the OSC. A petitioner must seek corrective action before the OSC as a prerequisite to filing an IRA appeal to the MSPB. 5 U.S.C. §§ 1214(a)(3), 1221(a), (b) (1994); Ellison v. Merit Sys. Prot. Bd., 7 F.3d 1031, 1035 (Fed.Cir.1993). Further, the petitioner must make allegations with sufficient detail to the OSC. See id. “[T]he test of the sufficiency of an employee’s charges of whistleblowing to the OSC is the statement that the employee makes in the complaint requesting corrective action under 5 U.S.C. § 1214, not the employee’s post hoc characterization of those statements.” Id. at 1036 (citation omitted). Langer insists that he satisfied the specificity requirement in his complaint to the OSC. However, Langer failed to point to any evidence to substantiate his claim. The IRS contends" }, { "docid": "13348069", "title": "", "text": "employee’s assigned duties, the Board was correct in concluding that Disclosures 3, 4, and 5 were not protected under the WPA. Disclosures 6 and 7 With respect to Disclosures 6 and 7, we agree with the Board that Lan-ger failed to exhaust his administrative remedies at the OSC. A petitioner must seek corrective action before the OSC as a prerequisite to filing an IRA appeal to the MSPB. 5 U.S.C. §§ 1214(a)(3), 1221(a), (b) (1994); Ellison v. Merit Sys. Prot. Bd., 7 F.3d 1031, 1035 (Fed.Cir.1993). Further, the petitioner must make allegations with sufficient detail to the OSC. See id. “[T]he test of the sufficiency of an employee’s charges of whistleblowing to the OSC is the statement that the employee makes in the complaint requesting corrective action under 5 U.S.C. § 1214, not the employee’s post hoc characterization of those statements.” Id. at 1036 (citation omitted). Langer insists that he satisfied the specificity requirement in his complaint to the OSC. However, Langer failed to point to any evidence to substantiate his claim. The IRS contends that substantial evidence supports the Board’s determination that Langer had failed to exhaust his administrative remedies at the OSC level. The IRS notes that Disclosure 6 was reported to the OSC as a wrongful personnel action rather than a protected disclosure under the WPA. The IRS further notes that Langer, with overly broad and vague language, failed to put the OSC on notice of the specific violations he currently alleges under Disclosure 7. In his initial filing with the OSC, Langer simply stated “disclosure of wrongdoing in the criminal investigation division.” Because Langer failed to specify to the OSC that Disclosure 6 was a WPA action, and failed to give sufficient details regarding Disclosure 7, we conclude that the Board was correct in finding that Langer had failed to exhaust his remedies at the OSC level with respect to these disclosures. CONCLUSION Because the Board correctly applied a preponderance of the evidence standard, and correctly determined that Langer had failed to prove by a preponderance of the evidence that he had made a protected disclosure" } ]

[ { "docid": "22539137", "title": "", "text": "Students’ claims that their Title VI-based timeliness argument was properly raised in the district court, while admirable for their creativity, are unpersuasive and unsupported by the record. First, Students point to two references to Title VI in their moving papers and claim that these references “raised” the Title VI argument. Although their moving papers in the district court did in fact refer to Title VI, the references discussed Title VI not in the context of timeliness, but with respect to the somewhat related but nevertheless distinct issue of whether Students had a protectable interest in the litigation at hand. Second, Students rely upon a declaration of their counsel, Mark Rosenbaum, that was submitted in support of the motion to intervene. In his declaration, Rosenbaum stated that \"after careful review of the papers filed by both parties relating to defendants' motion for summary judgment [he] concluded that the interests of the students [he] would be representing would not be adequately represented by the existing parlies.” Students’ reliance on this declaration is problematic for several reasons. First, the Rosenbaum declaration was not discussed, elaborated upon, or even referred to in their moving papers. Second, Rosenbaum’s conclusory statement fails to explain what it was that he discovered in his review of the summary judgment record that led him to conclude that his clients' interests would be inadequately represented. While the Rosenbaum affidavit could arguably provide a bare factual basis for a legal argument regarding timeliness, no such argument was made to the district court. In reviewing the motion to intervene, the district court was under no obligation to take factual claims made by the parties and fashion them into legal arguments. Cf. Entertainment Research Group, Inc. v. Genesis Creative Group, Inc., 122 F.3d 1211, 1217 (9th Cir.1997) (\"We will not manufacture arguments for an appellant, and a bare assertion does not preserve a claim.... 'Judges are not like pigs, hunting for truffles buried in briefs.’ ”) (citations omitted), cert. denied, 523 U.S. 1021, 118 S.Ct. 1302, 140 L.Ed.2d 468 (1998). The district court did not abuse its discretion by failing to consider an" } ]

[ { "docid": "13400804", "title": "", "text": "fact regarding the meaning of the phrase to consumers, an issue that we have already suggested cannot adequately be decided at summary judgment on the basis of abstract theorizing alone. Giving all reasonable inferences from the evidence in favor of Falls Media, competitors do not need to use “WOULD YOU RATHER ... ?” to describe their products. They can say “Would you prefer” or ‘Would you most like” or use some other verbal formula to convey a choice of alternatives. The district court also employed a third test, known as the “extent-of-use” test, which evaluates “the extent to which other sellers have used the mark on similar merchandise.” 2 McCarthy § 11:69; see also 555-1212.com, Inc. v. Commc’n House Int'l Inc., 157 F.Supp.2d 1084, 1089 (N.D.Cal.2001) (“[I]n determining whether a word has a descriptive or suggestive significance as applied to a commercial service, it is proper to take notice of the extent to which others in a similar commercial context use the word.”). Zobmondo introduced evidence of six published books with the words “would you rather” in the title, as well as printouts from Google.com search results using the phrase. Falls Media argues that the district court improperly credited this disputed evidence over Falls Media’s objections without considering whether the words “would you rather” were used as a trademark and without making all inferences in Falls Media’s favor. We are not aware of any prior case in our circuit employing the extent-of-use test as a controlling measure of trademark validity, and we need not do so here. If, as we see it, a summary judgment is disfavored by both the imagination test and the needs test, then extent of use at most could only be one factor to be considered, and could not command a summary judgment in the face of disputed facts about how a mark might be perceived by consumers. Extensive use of a mark by third parties might indicate that the mark is merely descriptive of a given class of products. See, e.g., Sec. Ctr., Ltd. v. First Nat’l Sec. Ctrs., 750 F.2d 1295, 1300 (5th Cir.1985)" }, { "docid": "16859898", "title": "", "text": "390 F.3d at 164. Information about how third parties in unrelated industries have used a mark could bear on that issue: Widespread usage by different types of businesses might indicate that it calls to mind a variety of products, while minimal usage might imply otherwise. Here, the district court cited three statistics regarding third-party usage of the “collective” mark: (1) “[t]he word ‘collective’ is used in the name of, over 7,000 businesses in 45 states”; (2) “[t]here are over 25,000 Internet domain names that contain the word ‘collective’ ”; and (3) “more than a dozen companies in the digital advertising and marketing field ... also use the word ‘collective.’ ” March Order, 2014 WL 1202939, at *5, 2014 U.S. Dist. LEXIS 38606, at *14-15. These statistics do not, in our view, provide enough information to be probative of the mark’s inherent distinctiveness. It is unclear to what extent the first two numbers pertain to Cl’s competitors (in which case widespread use might indicate that “collective” is descriptive) or third parties in unrelated industries (in which case widespread use might indicate that “collective” is suggestive). The third statistic is somewhat more narrowly drawn, inasmuch as it relates only to companies involved with digital marketing. Even so, however, it is not limited to companies that produce software similar to Cl’s. And in any event, the fact that a dozen digital-marketing companies have used the word “collective” is a numerator without a denominator: A dozen companies could be a significant portion of the digital-marketing field (which might indicate that “collective” is a vital descriptive tool in the industry) or a tiny sliver (which might indicate that competitors need not rely on “collective” to describe their products). Overall, therefore, the cited evidence of third-party usage carries little weight regarding the inherent distinctiveness of “collective” in this case. The PTO’s prior treatment of trademark applications may inform a court’s analysis of inherent descriptiveness in a different way. Before deciding whether to grant an application, the agency determines the inherent distinctiveness of the mark at issue—and, in many instances, its constituent parts. Because the agency has" }, { "docid": "11790063", "title": "", "text": "than “self-laudatory advertising,” a factor that cuts against categorizing the mark as suggestive. Id.; see Zobmondo, 602 F.3d at 1116 (“[M]erely descriptive marks need not describe the essential nature of a product; it is enough that the mark describe some aspect of the product.” (quotation marks omitted)). On the other hand, a reasonable jury, viewing the evidence in the light most favorable to Fortune, might focus more on the “taste” and “smell” definitions of “delicious.” In that event, the connection between DELICIOUS and footwear becomes much more attenuated, indicating that the mark is suggestive because it “requires a mental leap from the mark to the product.” Brookfield Commc’ns, 174 F.3d at 1058. In contrast with food, to which this definition of “delicious” has a direct connection, one arguably must use some imagination — a “multi-stage reasoning process” — to get from “delicious” to footwear. McCarthy § 11:71. “Delicious” is not a descriptor the average consumer would associate with shoes. For the same reasons, other shoe companies are unlikely to need to rely on the word “delicious” to describe their goods. Indeed, we are aware of no other shoe companies, and Victoria’s Secret points to none, that use the word “delicious” to describe their product. See Zobmondo, 602 F.3d at 1117-18. In sum, because “[w]hich category a mark belongs in is a question of fact,” id. at 1113, and because the decision as to whether a mark is descriptive or suggestive “ ‘is frequently made on an intuitive basis rather than as a result of a logical analysis susceptible of articulation,’ ” Lahoti, 586 F.3d at 1197-98 (quoting Pizzeria Uno Corp. v. Temple, 747 F.2d 1522, 1528 (4th Cir.1984)), we think a jury should assess the conceptual strength of Fortune’s mark in the first instance. Fortune also presented evidence of the DELICIOUS mark’s commercial strength, which takes into account a mark’s “actual marketplace recognition.” Brookfield Common’s, 174 F.3d at 1058. Although we have said that a suggestive mark is a “comparatively weak mark,” Sleekcraft, 599 F.2d at 349, we have also noted that “advertising expenditures can transform a suggestive mark into" }, { "docid": "13400805", "title": "", "text": "rather” in the title, as well as printouts from Google.com search results using the phrase. Falls Media argues that the district court improperly credited this disputed evidence over Falls Media’s objections without considering whether the words “would you rather” were used as a trademark and without making all inferences in Falls Media’s favor. We are not aware of any prior case in our circuit employing the extent-of-use test as a controlling measure of trademark validity, and we need not do so here. If, as we see it, a summary judgment is disfavored by both the imagination test and the needs test, then extent of use at most could only be one factor to be considered, and could not command a summary judgment in the face of disputed facts about how a mark might be perceived by consumers. Extensive use of a mark by third parties might indicate that the mark is merely descriptive of a given class of products. See, e.g., Sec. Ctr., Ltd. v. First Nat’l Sec. Ctrs., 750 F.2d 1295, 1300 (5th Cir.1985) (concluding that the mark “security center” is descriptive in part because of “the number of enterprises throughout the nation that use ‘security center’ in some form”). But having determined for purposes of summary judgment that the imagination test is inconclusive and that the competitors’ needs test favors suggestiveness, we are not persuaded that the result of the extent-of-use test, based on Zobmondo’s proffered evidence, renders “WOULD YOU RATHER ... ?” merely descriptive as a matter of law. Zobmondo’s evidence of third party use is relevant, and may be considered by the trier of fact. But it must be measured, not merely against the results of abstract theoretical tests, but against the presumption of validity afforded to Falls Media’s registered mark and against any other evidence of distinctiveness that Falls Media has proffered. The district court relied on the following evidence in concluding that “WOULD YOU RATHER ... ?” is merely descriptive: • A statement by Falls Media’s literary agent that the mark was “an utterly obvious title” for books “[b]ecause it was a clear explanation" }, { "docid": "11790064", "title": "", "text": "“delicious” to describe their goods. Indeed, we are aware of no other shoe companies, and Victoria’s Secret points to none, that use the word “delicious” to describe their product. See Zobmondo, 602 F.3d at 1117-18. In sum, because “[w]hich category a mark belongs in is a question of fact,” id. at 1113, and because the decision as to whether a mark is descriptive or suggestive “ ‘is frequently made on an intuitive basis rather than as a result of a logical analysis susceptible of articulation,’ ” Lahoti, 586 F.3d at 1197-98 (quoting Pizzeria Uno Corp. v. Temple, 747 F.2d 1522, 1528 (4th Cir.1984)), we think a jury should assess the conceptual strength of Fortune’s mark in the first instance. Fortune also presented evidence of the DELICIOUS mark’s commercial strength, which takes into account a mark’s “actual marketplace recognition.” Brookfield Common’s, 174 F.3d at 1058. Although we have said that a suggestive mark is a “comparatively weak mark,” Sleekcraft, 599 F.2d at 349, we have also noted that “advertising expenditures can transform a suggestive mark into a strong mark,” Brookfield Commcn’s, 174 F.3d at 1058. Here, Fortune proffered evidence indicating that it spends approximately $350,000 yearly marketing its footwear and that it sold 12,000,000 pairs of DELICIOUS shoes from 2005 to 2007. In addition, Fortune has advertised its DELICIOUS footwear in a variety of popular magazines, including Cosmo girl, Elle girl, Teen People, Twist, In Touch, Seventeen, Latina, ym, Shop, CB, marie claire, and Life & Style. Whatever its ultimate force, this evidence is sufficient to make the relative commercial strength of the DELICIOUS mark a question for the jury. 3 A genuine issue of material fact also exists, under the “proximity of goods” factor, with respect to whether Fortune’s footwear and Victoria’s Secret’s tank top are related. “Where goods are related or complementary, the danger of consumer confusion is heightened.” E & J Gallo Winery, 967 F.2d at 1291. In addressing this factor, our “focus is on whether the consuming public is likely somehow to associate [Fortune’s DELICIOUS footwear] with [Victoria’s Secret’s tank top].” Brookfield Commc’ns, 174 F.3d at 1056;" }, { "docid": "13400801", "title": "", "text": "mark describes a feature of the trademark holder’s product; rather, it must show that consumers regard the mark as merely descriptive of that product.” Borinquen Biscuit Corp. v. M.V. Trading Corp., 443 F.3d 112, 119 (1st Cir.2006). When we give all reasonable inferences to Falls Media, and credit its evidence as true, we conclude that the imagination test is inconclusive by itself to determine if the challenged mark is descriptive or suggestive of a board game. The second test, known as the “competitors’ needs” test, “focuses on the extent to which a mark is actually needed by competitors to identify their goods or services.” Rodeo Collection, Ltd. v. W. Seventh, 812 F.2d 1215, 1218 (9th Cir.1987). If competitors have a great need to use a mark, the mark is probably descriptive; on the other hand, if “the suggestion made by the mark is so remote and subtle that it is really not likely to be needed by competitive sellers to describe their goods or services[,] this tends to indicate that the mark is merely suggestive.” Id. (internal punctuation omitted). The competitors’ needs test is related to the imagination test, “because the more imagination that is required to associate a mark with a product or service, the less likely the words used will be needed by competitors to describe their products or services.” Id. (internal punctuation omitted). The district court concluded that the competitors’ needs test was “difficult to apply in this case” and declined to consider it because these tests “are merely factors to consider” and other tests favored Zobmondo. Falls Media argues that this was error, and in this case we agree. Drawing all inferences in favor of Falls Media, the competitors’ needs test strongly favored Falls Media’s argument that “WOULD YOU RATHER ... ?” is suggestive. Falls Media proffered significant evidence suggesting that its competitors do not need to use “WOULD YOU RATHER ... ?” to fairly describe their products. Perhaps most important is the experience of Zobmondo itself. Zobmondo identified 135 possible alternative names for its game during development. Also, Zobmondo marketed and sold its game and" }, { "docid": "2633601", "title": "", "text": "that plaintiffs waived their rights in this matter by approving defendants’ designs. In the Pretrial Order, defendants assert facts in support of their theory on this affirmative defense that do not appear in the summary judgment record. Thus, plaintiffs have met their initial summary judgment burden on these affirmative defenses and because defendants fail to come forward with evidence to show a genuine issue of material fact exists, summary judgment is granted. Fair Use Defendants assert the fair use defense, which “permits the use of a name or term, other than as a trademark, that is descriptive and is used fairly and in good faith only to describe the goods. This defense is not available if the alleged descriptive use is in fact a trademark use.” It is unclear how any of the trademarks at issue in this case would be descriptive of the products sold by defendants — T-shirts. There is no evidence the defendants intended to use any of plaintiffs’ marks in the descriptive sense. Plaintiffs point to a lack of evidence on this issue and defendants fail to meet their summary judgment burden to come forward with facts that show a genuine issue of material fact exists. Functionality Under the functionality doctrine, a product feature cannot serve as a trademark “if it is essential to the use or purpose of the article or if it affects the cost or quality of the article, that is, if exclusive use of the feature would put competitors at a significant non-reputation-related disadvantage.” One who produces an allegedly infringing product may defend its use by arguing that the mark is functional, “and therefore that all competitors must be permitted to copy it in their own products, regardless of any producer-identifying capacity it may possess.” The Court agrees with plaintiffs that there is no evidence that KU’s marks are essential to the quality of T-shirts, or affect how the T-shirts “work.” First Amendment Defendants claim that their use of the marks at issue is protected by the First Amendment. In the Pretrial Order, defendants specifically argue that the messages that appear on" }, { "docid": "13400819", "title": "", "text": ". Falls Media also argues that the district court ignored its objections to the admissibility of Zobmondo’s extent-of-use evidence. After reviewing the record, we conclude that the district court considered and correctly overruled Falls Media's objections to this evidence. . Zobmondo has established that collections of bizarre questions beginning with the words “would you rather” were posed in printed media before Falls Media began using the phrase as a mark. But this does not establish that there is no genuine issue of material fact that these types of questions were understood by consumers to be part of a \"WOULD YOU RATHER ... ?” game of questions. . Several Zobmondo game boxes follow up the mark “WOULD YOU RATHER ... ?” with the tag-line \"the game of mind-boggling questions.” Another Zobmondo game box includes sample questions. The need to explain what a “WOULD YOU RATHER ... ?” question entails cuts against Zobmondo's argument that \"WOULD YOU RATHER ... ?” is a well-established, culturally-pervasive concept. . Zobmondo argues that its trademark applications were filed by Horn before he had obtained legal advice about the distinctiveness of marks. Maybe so, but this is a contested fact, and, whatever might be the conclusion on that after trial and findings of fact, for purposes of summary judgment we must give all reasonable inferences in favor of Falls Media. For these summary judgment purposes, Falls Media is entitled to the inference that Zobmondo’s trademark applications are to a degree an admission that at the time Zobmondo viewed the mark as suggestive." }, { "docid": "11790061", "title": "", "text": "public.... ”). With that in mind, two tests help distinguish between a descriptive and a suggestive mark. First, a mark is more likely suggestive if it passes the imagination test, which asks. whether the mark “requires a mental leap from the mark to the product.” Brookfield Commc’ns, 174 F.3d - at 1058; see also 2 J. McCarthy, Trademarks and Unfair Competition § 11:71 (4th ed. 2004) (“McCarthy”) (“Is some reflection or multistage reasoning process necessary to cull some direct information about the product from the term used as a mark?”). “[T]he imagination test is [the] primary criterion for evaluating” whether a mark is suggestive. Zobmondo, 602 F.3d at 1116 (quotation marks omitted). Second, a mark is more likely suggestive if it passes the competitor test, which asks whether “the suggestion made by the mark is so remote and subtle that it is really not likely to be needed by competitive sellers to describe their goods.” Id. at 1117 (quotation marks omitted); McCarthy § 11:68. “Delicious” carries several different meanings, including “affording great pleasure,” “appealing to one of the bodily senses ... especially] involving the sense of taste or smell,”' “delightfully amusing,” and — in a definition the dictionary itself calls “obsolete” — ’“characterized by ... self-indulgent or sensuous pleasure.” Webster’s Third New International Dictionary 597 (1993). It “commonly refers to that which is tasted, smelled, or otherwise savored with maximum pleasure and keenest appreciation.” Id. We think that there is a genuine issue of material fact as to whether Fortune’s DELICIOUS mark is suggestive or descriptive. The distinction is important here because if the mark is suggestive, there is a stronger likelihood that a jury could reasonably conclude that the “strength of the mark” factor favors Fortune. On the one hand, some evidence points to a finding that DELICIOUS as applied to footwear is merely descriptive. To the extent “delicious” means “affording great pleasure,” for example, it seems to “directly convey a real and unequivocal idea of some characteristic, function, quality or ingredient of the product or service.” McCarthy § 11:71. By that definition, DELICIOUS on footwear is nothing more" }, { "docid": "20588367", "title": "", "text": "cake to the phrase “Mardi Gras bead dog,” as Haydel uses that phrase. A second test to determine descriptiveness is “whether competitors would be likely to need the terms used in the trademark in describing their products.” Zatarains, 698 F.2d at 793 (internal quotation marks and citation omitted). An article in a magazine published by Haydel describes the traditional bead dog as “a fond memory of Mardi Gras’ past and symbol of the City’s youth.” Another magazine article refers to the traditional bead dog as “an iconic Mardi Gras symbol.” Given the bead dog’s popularity and its close connection to Mardi Gras, common sense indicates that other vendors would need to use the term “Mardi Gras bead dog” to describe their own Mardi Grasthemed clothing, accessories, and baked goods containing the image of a bead dog. See id. (“Common sense indicates that in this case merchants other than Zatarain’s might find the term ‘fish fry’ useful in describing their own particular batter mixes.”) In response to compelling evidence of descriptiveness, Haydel fails to identify-evidence raising a genuine factual issue as to the word mark’s inherent distinctiveness. Haydel argues that its word mark must be suggestive as applied to jewelry because Nola Spice conceded in its motion for summary judgment that “Haydel does not make and sell bead dogs.” However, that statement at most reflects that the phrase “Mardi Gras bead dog” is not generic as applied to Haydel’s merchandise. Indeed, other phrases conveying a product’s shape have been found to be descriptive. See Vox Amplification Ltd. v. Meussdorffer, No. 13-4922, 2014 WL 558866, at *6 (E.D.N.Y. Feb. 11, 2014) (“ Teardrop[,]’ ... used in conjunction with a teardrop-shaped instrument body, is clearly descriptive.”), adopted, 50 F.Supp.3d 355, 2014 WL 4829578 (E.D.N.Y.2014); In re Carlson Dolls Co., 31 U.S.P.Q.2d 1319, 1994 WL 380727, at *2 (T.T.A.B.1994) (finding that the name “Martha Washington” is descriptive of a doll intended to represent the historical figure Martha Washington). Also unpersuasive is Haydel’s argument that its word mark is arbitrary as applied to clothing and king cake. . Arbitrary marks “bear no relationship to the" }, { "docid": "13400802", "title": "", "text": "Id. (internal punctuation omitted). The competitors’ needs test is related to the imagination test, “because the more imagination that is required to associate a mark with a product or service, the less likely the words used will be needed by competitors to describe their products or services.” Id. (internal punctuation omitted). The district court concluded that the competitors’ needs test was “difficult to apply in this case” and declined to consider it because these tests “are merely factors to consider” and other tests favored Zobmondo. Falls Media argues that this was error, and in this case we agree. Drawing all inferences in favor of Falls Media, the competitors’ needs test strongly favored Falls Media’s argument that “WOULD YOU RATHER ... ?” is suggestive. Falls Media proffered significant evidence suggesting that its competitors do not need to use “WOULD YOU RATHER ... ?” to fairly describe their products. Perhaps most important is the experience of Zobmondo itself. Zobmondo identified 135 possible alternative names for its game during development. Also, Zobmondo marketed and sold its game and a related book for a period of time without using the phrase “WOULD YOU RATHER ... ?” (instead using the name “The Outrageous Game of Bizarre Choices”), and another board game company used the name “Would You Prefer?” during the same time period. These titles are not linguistically inferior to “WOULD YOU RATHER ... ?”. Cf. Entrepreneur Media, 279 F.3d at 1143 (observing that others need the term “entrepreneur” because “[w]e are not aware of, nor has EMI suggested, any synonym for the word”). In the face of this evidence, credited as true on summary judgment, it’s difficult to say that Zobmondo necessarily needs to use “WOULD YOU RATHER ... ?” for its version of the board game of bizarre or humorous choices. Zobmondo argues that ‘WOULD YOU RATHER ... ?” is needed to fairly describe its products because the meaning of the phrase “WOULD YOU RATHER ... ?” is entrenched in the minds of consumers in a way that renders other possible marks inherently inferior. This argument, however, depends on a disputed issue of" }, { "docid": "7497327", "title": "", "text": "is presumed. See PIC Design Corp. v. Bearings Specialty Co., 436 F.2d 804, 807 (1st Cir. 1971). In that event, the court can proceed to consider the remaining elements of the infringement claim without first demanding that the trademark holder offer proof of secondary meaning. See id. In the case at hand, these background principles get the grease from the goose. Before us, M.V. insists that the district court erroneously treated Borin-quen’s mark as incontestable because it did not require proof of secondary meaning. This argument conflates two issues and, in the bargain, mischaracterizes what transpired below. The record, fairly read, supports a determination that M.V. failed to prove, by a preponderance of the evidence, that the “RICA” mark is merely descriptive. Therefore, the district court was warranted in not taking the next step and shifting the burden to Borinquen to show that its registered but contestable mark had acquired secondary meaning. See Keebler Co., 624 F.2d at 373. We explain briefly. The issue of distinctiveness ordinarily presents a question of fact. Equine Techs., 68 F.3d at 544. Although M.V. raised a descriptiveness defense, it presented minimal evidence and argument in support of that defense. For example, while M.V. conducted a survey on the issue of consumer confusion, it adduced no comparable evidence in support of its contention that Borinquen’s mark is merely descriptive. By like token, M.V. devoted scant attention to the question of descriptiveness in its post-hearing brief. Given this dearth of both evidence and argumentation, we think that the decision to allow the distinctiveness presumption to control withstands scrutiny. M.V.’s counter-arguments, though ably presented, are not sufficient, at the preliminary injunction stage, to offset the finding that Borinquen enjoyed a likelihood of sur- cess on the merits. First, M.V. states that “RICA” should be dubbed a descriptive mark because the word, translated literally, means “tasty” or “rich” and, therefore, .describes a desirable characteristic of a cookie or cracker. With respect to a registered mark, however, the putative in-fringer’s burden is not simply to show that the mark describes a feature of the trademark holder’s product; rather, it" }, { "docid": "13400803", "title": "", "text": "a related book for a period of time without using the phrase “WOULD YOU RATHER ... ?” (instead using the name “The Outrageous Game of Bizarre Choices”), and another board game company used the name “Would You Prefer?” during the same time period. These titles are not linguistically inferior to “WOULD YOU RATHER ... ?”. Cf. Entrepreneur Media, 279 F.3d at 1143 (observing that others need the term “entrepreneur” because “[w]e are not aware of, nor has EMI suggested, any synonym for the word”). In the face of this evidence, credited as true on summary judgment, it’s difficult to say that Zobmondo necessarily needs to use “WOULD YOU RATHER ... ?” for its version of the board game of bizarre or humorous choices. Zobmondo argues that ‘WOULD YOU RATHER ... ?” is needed to fairly describe its products because the meaning of the phrase “WOULD YOU RATHER ... ?” is entrenched in the minds of consumers in a way that renders other possible marks inherently inferior. This argument, however, depends on a disputed issue of fact regarding the meaning of the phrase to consumers, an issue that we have already suggested cannot adequately be decided at summary judgment on the basis of abstract theorizing alone. Giving all reasonable inferences from the evidence in favor of Falls Media, competitors do not need to use “WOULD YOU RATHER ... ?” to describe their products. They can say “Would you prefer” or ‘Would you most like” or use some other verbal formula to convey a choice of alternatives. The district court also employed a third test, known as the “extent-of-use” test, which evaluates “the extent to which other sellers have used the mark on similar merchandise.” 2 McCarthy § 11:69; see also 555-1212.com, Inc. v. Commc’n House Int'l Inc., 157 F.Supp.2d 1084, 1089 (N.D.Cal.2001) (“[I]n determining whether a word has a descriptive or suggestive significance as applied to a commercial service, it is proper to take notice of the extent to which others in a similar commercial context use the word.”). Zobmondo introduced evidence of six published books with the words “would you" }, { "docid": "13400810", "title": "", "text": "whether the marks “were actually used by third parties, that they were well promoted or that they were recognized by consumers”). Falls Media has not rested solely on its federal registration to survive summary judgment. See Tie Tech, 296 F.3d at 784 (distinguishing between cases in which a trademark holder did or did not adduce additional evidence to supplement its federally registered trademark to survive summary judgment). Falls Media proffered the testimony of a game-industry expert, Philip E. Orbanes, who said that “WOULD YOU RATHER ... ?” had never been used as the title of a board game before Zobmondo’s entry into the market. The district court concluded that this testimony was “entirely irrelevant” because the issue was whether the societal concept of a “WOULD YOU RATHER ... ?” dilemma predated Falls Media’s use of the mark. We disagree. The ultimate issue at summary judgment was whether the mark ‘WOULD YOU RATHER ... ?” should receive trademark protection as applied to Falls Media’s board and card games. The fact that the mark had not been used previously to describe a board game is relevant to that inquiry; it suggests that competitors do not find the mark useful in describing their products. See, e.g., Sec. Ctr., 750 F.2d at 1300 (“We look into actual and likely use of a mark in order to determine whether its protection, i.e., its exclusion from the language freely available for commercial use, interferes with competition among providers of the same product or service.”). Zobmondo asks us to conclude that the mark is merely descriptive on a board game because of Zobmondo’s showing that consumers’ understanding of the ‘WOULD YOU RATHER ... ?” game concept predates the parties’ use of the mark. But that idea does not render Orbanes’s testimony irrelevant. To the contrary, Orbanes’s testimony about lack of third-party use on games tends to negate the inference that Zobmondo seeks to establish: that the mark is widely understood by consumers to refer to a type of question game. Other evidence in the record also supports Falls Media’s claim that “WOULD YOU RATHER ... ?” could" }, { "docid": "13400806", "title": "", "text": "(concluding that the mark “security center” is descriptive in part because of “the number of enterprises throughout the nation that use ‘security center’ in some form”). But having determined for purposes of summary judgment that the imagination test is inconclusive and that the competitors’ needs test favors suggestiveness, we are not persuaded that the result of the extent-of-use test, based on Zobmondo’s proffered evidence, renders “WOULD YOU RATHER ... ?” merely descriptive as a matter of law. Zobmondo’s evidence of third party use is relevant, and may be considered by the trier of fact. But it must be measured, not merely against the results of abstract theoretical tests, but against the presumption of validity afforded to Falls Media’s registered mark and against any other evidence of distinctiveness that Falls Media has proffered. The district court relied on the following evidence in concluding that “WOULD YOU RATHER ... ?” is merely descriptive: • A statement by Falls Media’s literary agent that the mark was “an utterly obvious title” for books “[b]ecause it was a clear explanation of the content of the book.” • A statement by Falls Media’s sales agent that “WOULD YOU RATHER ... ?” is a better name than “Zobmondo” because “somebody looking at Zob mondo would not know that it contains would you rather questions.” • A statement by James Pressman, who optioned Falls Media’s game, that “WOULD YOU RATHER ... ?” was a good name for the product because “it gave you a good idea of what the game was all about” because “the questions always started with would you rather.” • An e-mail from Gomberg stating that “most people that make the purchase [of a WOULD YOU RATHER ... ?’ game] do it because they’re familiar with the concept — as opposed to the actual game play or content.” • Zobmondo’s evidence of books, websites, and copyright registrations suggesting that the ‘WOULD YOU RATHER ... ?” concept predates Falls Media’s trademark application. We agree with the district court that this evidence collectively has some persuasive weight, but we do not believe it is “so one-sided that" }, { "docid": "13400818", "title": "", "text": "564 (2d Cir.1990) (\"[The] burden [to prove secondary meaning] does not shift upon a decision of the [PTO] to register the mark, absent evidence that the [PTO] registered the mark upon finding that it had acquired secondary meaning.”). . The district court concluded that \"WOULD YOU RATHER ... ?” is not generic, and Zobmondo does not press that argument on appeal. Falls Media conceded before the district court that \"WOULD YOU RATHER ... ?” is not an arbitrary or fanciful mark. We assume without deciding that \"WOULD YOU RATHER ... ?” is either a suggestive or a merely descriptive mark, which is how the parties have framed the issue. . The underlying issue is the standard of meaning \"prevalent among prospective purchasers of the article.\" Bada, 426 F.2d at 11. On that basis, some terms may not be susceptible to abstract \"imagination test” analysis at summary judgment, and instead the application of the imagination test will be informed by expert testimony offered at trial suggesting how consumers will view this phrase on a board game. . Falls Media also argues that the district court ignored its objections to the admissibility of Zobmondo’s extent-of-use evidence. After reviewing the record, we conclude that the district court considered and correctly overruled Falls Media's objections to this evidence. . Zobmondo has established that collections of bizarre questions beginning with the words “would you rather” were posed in printed media before Falls Media began using the phrase as a mark. But this does not establish that there is no genuine issue of material fact that these types of questions were understood by consumers to be part of a \"WOULD YOU RATHER ... ?” game of questions. . Several Zobmondo game boxes follow up the mark “WOULD YOU RATHER ... ?” with the tag-line \"the game of mind-boggling questions.” Another Zobmondo game box includes sample questions. The need to explain what a “WOULD YOU RATHER ... ?” question entails cuts against Zobmondo's argument that \"WOULD YOU RATHER ... ?” is a well-established, culturally-pervasive concept. . Zobmondo argues that its trademark applications were filed by Horn before" }, { "docid": "13400811", "title": "", "text": "used previously to describe a board game is relevant to that inquiry; it suggests that competitors do not find the mark useful in describing their products. See, e.g., Sec. Ctr., 750 F.2d at 1300 (“We look into actual and likely use of a mark in order to determine whether its protection, i.e., its exclusion from the language freely available for commercial use, interferes with competition among providers of the same product or service.”). Zobmondo asks us to conclude that the mark is merely descriptive on a board game because of Zobmondo’s showing that consumers’ understanding of the ‘WOULD YOU RATHER ... ?” game concept predates the parties’ use of the mark. But that idea does not render Orbanes’s testimony irrelevant. To the contrary, Orbanes’s testimony about lack of third-party use on games tends to negate the inference that Zobmondo seeks to establish: that the mark is widely understood by consumers to refer to a type of question game. Other evidence in the record also supports Falls Media’s claim that “WOULD YOU RATHER ... ?” could be seen by consumers as suggestive. For example, that Zobmondo included descriptive information on its game boxes after it began using the “WOULD YOU RATHER ... ?” mark may suggest that Zobmondo itself thought that the mark did not fully describe its products. And Zobmondo’s attempt to acquire trademark rights in the mark supports an inference that Zobmondo believed, at one time, that the mark was inherently distinctive. This evidence is no less relevant to the distinctiveness inquiry than the evidence that persons associated with Falls Media thought the mark provided descriptive information. Both the evidence of Zobmondo’s trademark applications and the evidence that some persons in business relations with Falls Media thought the mark descriptive demonstrate that there is a factual contest at bottom in assessing the descriptiveness or suggestiveness of the “WOULD YOU RATHER ... ?” mark, rendering that issue unsuitable for a summary judgment determination. Looking at the totality of evidence proffered by Zobmondo and Falls Media and taking into account the “strong presumption” accorded to Falls Media’s federal registration, we conclude" }, { "docid": "10833347", "title": "", "text": "were “functional.” See 724 F.2d at 330-32. DC Comics involved a party’s attempt to register drawings of certain comic characters as trademarks for dolls of the same characters. In concluding that registration would not allow a monopoly on dolls in general, the court understood that the appearances of the comic book characters in issue were fanciful and not utilitarian in any respect. See 689 F.2d at 1045. In Brandir, the court stated it would be appropriate to examine a broad product line, but nothing therein suggested that after examination one could not conclude that widely different products did not fulfill the same functions, or fulfill them as well. See 834 F.2d at 1148. To the extent anything in Brandir suggests that a product feature is nonfunctional if there is any alternate design that competes to any degree, it is inconsistent with the purpose and extent of the functionality doctrine described above. Accordingly, even viewing the evidence in the light most favorable to Leatherman, the only reasonable conclusion is that the overall appearance of the PST is not pro-tectable as trade dress, at least as against a competitor which clearly marks its own product with a distinct name and who uses distinct packaging. Since there is no dispute that Cooper marked and packaged the Toolzall distinctively, judgment as a matter of law should have entered in its favor. III. The portion of the judgment that grants Leatherman a permanent injunction is REVERSED. No costs are allowed. . Leatherman sells other models of multifunction tools which differ in size and functions. Those tools are not at issue in this litigation. . Cooper contends it was prejudiced when on the last day of the trial the district court changed the previously agreed-to phrase \"entire design” to \"overall appearance” in two jury instructions. Cooper appears to understand \"entire design” to mean something different from the \"overall appearance.” Although “design” and \"appearance” are not fully synonymous, we have trouble seeing a meaningful distinction in this context. Whether one says \"entire design” or \"overall appearance” the basic connotation is \"what the product looks like, viewed as" }, { "docid": "11790062", "title": "", "text": "one of the bodily senses ... especially] involving the sense of taste or smell,”' “delightfully amusing,” and — in a definition the dictionary itself calls “obsolete” — ’“characterized by ... self-indulgent or sensuous pleasure.” Webster’s Third New International Dictionary 597 (1993). It “commonly refers to that which is tasted, smelled, or otherwise savored with maximum pleasure and keenest appreciation.” Id. We think that there is a genuine issue of material fact as to whether Fortune’s DELICIOUS mark is suggestive or descriptive. The distinction is important here because if the mark is suggestive, there is a stronger likelihood that a jury could reasonably conclude that the “strength of the mark” factor favors Fortune. On the one hand, some evidence points to a finding that DELICIOUS as applied to footwear is merely descriptive. To the extent “delicious” means “affording great pleasure,” for example, it seems to “directly convey a real and unequivocal idea of some characteristic, function, quality or ingredient of the product or service.” McCarthy § 11:71. By that definition, DELICIOUS on footwear is nothing more than “self-laudatory advertising,” a factor that cuts against categorizing the mark as suggestive. Id.; see Zobmondo, 602 F.3d at 1116 (“[M]erely descriptive marks need not describe the essential nature of a product; it is enough that the mark describe some aspect of the product.” (quotation marks omitted)). On the other hand, a reasonable jury, viewing the evidence in the light most favorable to Fortune, might focus more on the “taste” and “smell” definitions of “delicious.” In that event, the connection between DELICIOUS and footwear becomes much more attenuated, indicating that the mark is suggestive because it “requires a mental leap from the mark to the product.” Brookfield Commc’ns, 174 F.3d at 1058. In contrast with food, to which this definition of “delicious” has a direct connection, one arguably must use some imagination — a “multi-stage reasoning process” — to get from “delicious” to footwear. McCarthy § 11:71. “Delicious” is not a descriptor the average consumer would associate with shoes. For the same reasons, other shoe companies are unlikely to need to rely on the word" }, { "docid": "13400812", "title": "", "text": "be seen by consumers as suggestive. For example, that Zobmondo included descriptive information on its game boxes after it began using the “WOULD YOU RATHER ... ?” mark may suggest that Zobmondo itself thought that the mark did not fully describe its products. And Zobmondo’s attempt to acquire trademark rights in the mark supports an inference that Zobmondo believed, at one time, that the mark was inherently distinctive. This evidence is no less relevant to the distinctiveness inquiry than the evidence that persons associated with Falls Media thought the mark provided descriptive information. Both the evidence of Zobmondo’s trademark applications and the evidence that some persons in business relations with Falls Media thought the mark descriptive demonstrate that there is a factual contest at bottom in assessing the descriptiveness or suggestiveness of the “WOULD YOU RATHER ... ?” mark, rendering that issue unsuitable for a summary judgment determination. Looking at the totality of evidence proffered by Zobmondo and Falls Media and taking into account the “strong presumption” accorded to Falls Media’s federal registration, we conclude that there is a genuine issue of material fact whether “WOULD YOU RATHER ... ?” is inherently distinctive to consumers. “Deference to the PTO’s classification decision is sensible because the PTO has special expertise that we lack on this fact-intensive issue.” Lahoti, 586 F.3d at 1199 (citing Lone Star Steakhouse & Saloon, Inc. v. Alpha of Va., Inc., 43 F.3d 922, 934 (4th Cir.1995)). This principle applies meaningfully at the summary judgment stage, where we are not permitted to weigh evidence or draw inferences against Falls Media. “[T]he fact that a mark is registered is strong evidence that the mark satisfies the statutory requirements for distinctiveness necessary for trademark protection.” Retail Servs., Inc. v. Freebies Publ’g, 364 F.3d 535, 542 (4th Cir.2004). Giving Falls Media the benefit of the presumptive effect of its federal registration, crediting the testimony of Falls Media, placing the burden of challenge to the mark’s distinctiveness on Zobmondo, and giving all reasonable inferences to Falls Media, we conclude that there is a genuine issue of material fact whether “WOULD YOU RATHER" } ]

[ { "docid": "8772769", "title": "", "text": "can hold that reasonable minds, viewing the evidence in a light most favorable to the prevailing party, could only have found otherwise. Voegeli v. Lewis, 568 F.2d 89, 92 (8th Cir. 1977); Russ v. Ratliff, 538 F.2d 799, 804 (8th Cir. 1976), cert. denied, 429 U.S. 1041, 97 S.Ct. 740, 50 L.Ed.2d 753 (1977). See 9 C. Wright & A. Miller, Federal Practice and Procedure § 2524 at 541-44 (1971). The test in this Circuit was announced in Hanson v. Ford Motor Co., 278 F.2d 586, 596 (8th Cir. 1960), cited in, Griggs v. Firestone Tire & Rubber Co., 513 F.2d 851, 857 (8th Cir.), cert. denied, 423 U.S. 865, 96 S.Ct. 124, 46 L.Ed.2d 93 (1975). There, the Court held that in determining whether an issue should be taken from the jury, the trial court and the appellate court are: (1) to consider the evidence in the light most favorable to the . . plaintiffs as the parties prevailing with the jury; (2) to assume that all conflicts in the evidence were resolved ... in favor of the plaintiffs; (3) to assume as proved all facts which plaintiffs’ evidence tends to prove; (4) to give the plaintiffs the benefit of all favorable inferences which may reasonably be drawn from the facts proved; and (5) to deny the motion if, reviewing the evidence in this light, reasonable men could differ as to the conclusions to be drawn from it. After carefully reviewing the transcript together with the negligence principles enunciated by the courts of Nebraska, we are unable to say that reasonable minds viewing the evidence in a light most favorable to the appellee could only have found against her. Under Nebraska law, a hospital must exercise the degree of care, skill, and diligence generally followed by hospitals in the community or in similar communities. See Foley v. Bishop Clarkson Memorial Hospital, 185 Neb. 89, 93, 173 N.W.2d 881, 884 (1970). The hospital is obligated not only to guard against a patient’s known physical and mental conditions “but also against such conditions ... it should have discovered by the exercise" } ]

[ { "docid": "23017798", "title": "", "text": "once again made known their various complaints. The meeting, and more particularly the Yellow Birds’ participation, was well publicized in the local newspapers. The Commission asked the City to remedy the problem and report back to it. The City neither remedied the problem nor reported back. The matter was apparently turned over to the Sheridan County Attorney’s Office, which later reported to the Mayor of Gordon that it was obvious that the City’s police force considered themselves “overlords,” whose orders were to be obeyed without question. A similar conclusion was reached by Security Services of Lincoln, Nebraska, an outside agency investigating the Gordon Police Department. The foregoing demonstrates that the City was adequately notified that its five-member police force needed close and continuing supervision. It, however, permitted its overzealous police force to continue its overlording. The inevitable result was the kind of misconduct that caused Yellow Bird’s physical beating, the loss of her unborn child and her medical and emotional problems. The jury was properly and adequately instructed on the City’s potential section 1983 liability. There was sufficient evidence to warrant those instructions and to sustain the jury’s ultimate decision. B Officer Valentine argues that the evidence against him is not sufficient to sustain the jury’s verdict. We disagree. Reviewing the evidence in the light most favorable to Yellow Bird, we are convinced that the verdict is correct. Valentine kicked the visibly pregnant plaintiff in the stomach. He denied her necessary medical assistance even though she persisted in asking for it. Though a hospital was seven blocks away, she was driven to the county jail — nearly twenty miles in the opposite direction. On the way to the jail, Valen tine, who had been injured in the brawl and was visibly upset, pulled off to the side of the road, turned to Yellow Bird and said, “I don’t know whether to take you people out in the country and shoot you or to take you to jail.” Yellow Bird’s medical expert testified that the kick and resulting lack of medical care caused the death of Yellow Bird’s unborn child. Valentine’s" }, { "docid": "6620651", "title": "", "text": "standard requires that we: 1) consider the evidence in the light most favorable to [Williams], who prevailed with the jury; 2) assume that all conflicts in the evidence were resolved by the jury in [Williams’] favor; 3) assume as proved all facts which [Williams’] evidence tends to prove; 4) give [Williams] the benefit of all favorable inferences which may reasonably be drawn from the facts proved; and 5) affirm the denial of the motion if reasonable persons could differ as to the conclusions to be drawn from it. 897 F.2d at 948 (quoting Gilkerson v. Toastmaster, 770 F.2d 133, 136 (8th Cir. 1985)). We further stated in Morgan that the court should consider only the evidence favoring the nonmoving party. 897 F.2d at 948. We have set forth above the evidence in a light most favorable to Williams under the standards articulated in Morgan and Barber. We confess that the ease is close. The evidence certainly supports a conclusion that the supervisor, Leigh, was arbitrary in moving the skid and in forbidding Williams from using the dolly to move the boxes from the line to the skid. The evidence could support an inference that there was some bad blood between Leigh and Williams in this respect. Leigh made several other arbitrary actions in which he made clear that he was requiring Williams to make shift changes or use equipment exactly as Leigh desired, and failed to require Williams to seek medical attention when informed that Williams was having medical problems. Valentec Kisco’s articulated legitimate nondiscriminatory reason for terminating Williams was that he disobeyed direct orders from Leigh. The evidence we recited above is sufficient to support a finding that this stated reason was pretextual. Valentec Kisco argues, however, that the plaintiff cannot prevail only by proving pretext, but must also prove that age was a determining factor in the employer’s decision to fire the employee. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981), holds that the plaintiff may prove discrimination “either directly by persuading the [factfinder] that a discriminatory reason more" }, { "docid": "3951297", "title": "", "text": "was not clearly against the weight of the evidence. The district court did not abuse its discretion by denying the plaintiff’s motion for a new trial. When reviewing a district court’s denial of a motion for a judgment notwithstanding the verdict (JNOV) we must: (1) consider the evidence in the light most favorable to the defendants as the parties prevailing with the jury; (2) assume that all conflicts in the evidence were resolved by the jury in favor of the defendants; (3) assume as proved all facts which defendants’ evidence tends to prove (4) give the defendants the benefit of all favorable inferences which may reasonably be drawn from the facts proved; and (5) deny the motion if, reviewing the evidence in this light, reasonable men could differ as to the conclusions to be drawn from it. Thomas v. Booker, 784 F.2d 299, 305 (8th Cir.1986), cert. denied, — U.S. —, 106 S.Ct. 1975-76, 90 L.Ed.2d 659 (1986). In the instant case, there was ample evidence presented by the defendants and a non-defendant doctor which showed that the defendants were not negligent in their diagnosis or treatment of Mrs. Beckman. Thus, under the strict standard of review, we cannot find that the district court erred in denying plaintiffs motion for a JNOV. We have concluded that the district court did not abuse its discretion in denying plaintiffs request that defendant Dr. Hermann answer cumulative questions. We have also concluded that the trial court’s instructions to the jury did not include plain error. We have also concluded that the district court properly denied plaintiffs motions for a new trial and a JNOV. Accordingly, the district court’s judgment for the defendants is affirmed." }, { "docid": "22476685", "title": "", "text": "Griggs v. Firestone Tire & Rubber Co., 513 F.2d 851, 857 (8th Cir.), cert. denied, 423 U.S. 865, 96 S.Ct. 124, 46 L.Ed.2d 93 (1975), citing Hanson v. Ford Motor Co., 278 F.2d 586, 596 (8th Cir. 1960), we held that, in passing upon a motion for judgment n. o. v., the trial court and the appellate court are: (1) to consider the evidence in the light most favorable to the * * * parties prevailing with the jury; (2) to assume that all conflicts in the evidence were resolved * * * in favor of the [prevailing parties]; (3) to assume as proved all facts which [the prevailing parties’] evidence tends to prove; (4) to give the [prevailing parties] the benefit of all favorable inferences which may reasonably be drawn from the facts proved; and (5) to deny the motion if, reviewing the evidence in this light, reasonable men could differ as to the conclusion to be drawn from it. Most of the historical facts are not in dispute and are well established in the lengthy record. The clinical evidence detailing the nature of the injury and the treatment that followed is largely uncontested. One important factual issue survived for the jury to resolve: whether or not Dr. Lewis took a pulse on the first night at the hospital. According to Dr. Lewis’ testimony, he inspected the leg at 7:05 p. m., following a telephone report by Nurse Preston that the leg appeared mottled and cold and Voegeli could not move his toes. Lewis did not take a pulse at that time. He testified that he returned to the room alone a few minutes later, however, and checked for a pulse. Finding one, he noted this on the chart. As we read the record and briefs, it appears that appellants sought to cast doubt on this testimony. One of plaintiffs’ experts testified that if the artery had ruptured it would not have been possible to find a pulse, although Lewis’ expert, Dr. H. Phil Gross, testified that Lewis might have been misled by collateral circulation. Whether Lewis really did" }, { "docid": "18575320", "title": "", "text": "indicated to the jury the nature of conduct for which defendants could be held liable. Defendants challenge the first paragraph of Instruction No. 7 which conditioned defendants’ liability on a finding by the jury that defendants knew or should have known that placing Thomas in the jail’s general population without close supervision made an attack upon him highly foreseeable. Defendants argue that this portion of Instruction No. 7 was inadequate and that a proper instruction would preclude liability unless defendants “knew or should have known of a specific, clear and present danger to the safety of [Thomas], a danger manifested by evidence of objective facts and circumstances which should have led [them], in the exercise of professional judgment, to act in certain ways.” Brief of Appellants at 31. Defendants do not cite any authority in support of such an instruction. Moreover, we are not convinced that defendants’ proposal correctly states the controlling law in a manner that would aid the jury. In view of the above reasoning, we find that any error in the instruction did not constitute plain error. The defendants also argue that the court erred in not granting their motion for a JNOV in the entirety because the evidence did not support the jury’s verdict. In Smith v. Updegraff, 744 F.2d 1354 (8th Cir.1984), this court set forth the standard of review to be applied when considering such a challenge: [I]n passing upon the motion for judgment, the trial court and this court are (1) to consider the evidence in the light most favorable to the plaintiffs as the parties prevailing with the jury; (2) to assume that all conflicts in the evidence were resolved by the jury in favor of the plaintiffs; (3) to assume as proved all facts which plaintiffs’ evidence tends to prove; (4) to give the plaintiffs the benefit of all favorable inferences which may reasonably be drawn from the facts proved; and (5) to deny the motion if, reviewing the evidence in this light, reasonable men could differ as to the conclusions to be drawn from it. [Hanson v. Ford Motor Co.," }, { "docid": "6753341", "title": "", "text": "the evidence from the prior trial for impeachment purposes, but it significantly limited the scope of this evidence. The district court’s limitation was not an abuse of discretion. III. Consequently, the judgment of the district court is affirmed. . The Honorable Charles R. Wolle, United States District Judge for the Southern District of Iowa. .The railroad allocates conductors to job assignments based upon a list of employees ranked by seniority. Under the collective bargaining agreement, each employee may withdraw his name from the list or \"lay off” if he chooses to use vacation, sick leave, or personal time. (Trial Tr. at 290.) HEANEY, Circuit Judge, dissenting. After a careful review of the record, I am convinced that this case was properly submitted to the jury. The record reveals that many of the facts as recited by the majority were contested at trial and, indeed, remain disputed on appeal. Given these differing versions of the facts, as set out below, I do not believe that the district court should have substituted its judgment in place of the jury’s. I therefore respectfully dissent. In evaluating the district court’s decision on a judgment notwithstanding the verdict, we must: 1) consider the evidence in the light most favorable to [Pickens], who prevailed with the jury; 2) assume that all conflicts in the evidence were resolved by the jury in [Pickens’] favor; 3) assume as proved all facts which [Pickens’] evidence tends to prove; 4) give [Pick-ens] the benefit of all favorable inferences which may reasonably be drawn from the facts proved; and 5) affirm the denial of the motion if reasonable persons could differ as to the conclusions to be drawn from it. Morgan v. Arkansas Gazette, 897 F.2d 945, 948 (8th Cir.1990)(internal quotation omitted). The majority, however, recites a version of the facts closely mirroring those set forth in Soo Line’s brief, rather than those facts that tend to prove Pickens’ case. If considered in the light most favorable to Pickens, the record reveals the following facts. Pickens had worked as a railroad conductor for the Soo Line for over 20 years. During" }, { "docid": "6620650", "title": "", "text": "cert. denied, 479 U.S. 885, 107 S.Ct. 278, 93 L.Ed.2d 254 (1986), in considering submissibility of an age case: [W]e are concerned primarily with the simple question whether the record contains enough evidence to justify a rational jury in finding that age was a determining factor in what happened to plaintiff[], a factor in the absence of which the employer would not have taken the adverse action it did. See also Morgan v. Arkansas Gazette, 897 F.2d 945, 948 (8th Cir.1990) (once there has been finding of discrimination, on appellate review, three-stage order of proof and presumptions arising therefrom fade away). All we are to focus upon is whether there was sufficient evidence to support the jury’s finding of intentional discrimination. Id. Bethea v. Levi Strauss & Co., 827 F.2d 355, 358 (8th Cir.1987); Barber, 791 F.2d at 660. See United States Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 714-15, 103 S.Ct. 1478, 1481, 75 L.Ed.2d 403 (1983). In Morgan, we set forth the standard guiding our review of jury verdicts. This standard requires that we: 1) consider the evidence in the light most favorable to [Williams], who prevailed with the jury; 2) assume that all conflicts in the evidence were resolved by the jury in [Williams’] favor; 3) assume as proved all facts which [Williams’] evidence tends to prove; 4) give [Williams] the benefit of all favorable inferences which may reasonably be drawn from the facts proved; and 5) affirm the denial of the motion if reasonable persons could differ as to the conclusions to be drawn from it. 897 F.2d at 948 (quoting Gilkerson v. Toastmaster, 770 F.2d 133, 136 (8th Cir. 1985)). We further stated in Morgan that the court should consider only the evidence favoring the nonmoving party. 897 F.2d at 948. We have set forth above the evidence in a light most favorable to Williams under the standards articulated in Morgan and Barber. We confess that the ease is close. The evidence certainly supports a conclusion that the supervisor, Leigh, was arbitrary in moving the skid and in forbidding Williams from using" }, { "docid": "980257", "title": "", "text": "104, 97 S.Ct. 285, 291, 50 L.Ed.2d 251 (1976), the Supreme Court held “that deliberate indifference to serious medical needs of prisoners constitutes the ‘unnecessary and wanton infliction of pain,’ * * * proscribed by the Eighth Amendment.” See also Kelsey v. Ewing, 652 F.2d 4 at 6 (8th Cir. 1981). Wayne argues that the evidence did not show he was deliberately indifferent to the serious medical needs of Robinson. We think the evidence warranted submission of this issue to the jury. This court is strictly limited in the scope of its review concerning a denial of Wayne’s motion for a directed verdict. . The late Chief Judge Gardner of the Eighth Circuit, in reviewing Judge Devitt’s denial of a motion for a directed verdict, eloquently stated the standard for appellate review: In considering this question we must view the evidence in a light most favorable to the prevailing party and we must' assume that all conflicts in the evidence have been resolved by the jury in his favor and that the evidence proves all facts which it reasonably tends to prove. The prevailing party is also entitled to the benefit of all such favorable inferences as may reasonably be drawn from the evidence. If, when so considered, reasonable minds might reach different conclusions then the case presents issues of fact to be submitted to the jury and not issues of law to be determined by the court. Chicago Great Western Railway Co. v. Scovel, 232 F.2d 952, 955 (8th Cir.), cert. denied, 352 U.S. 835, 77 S.Ct. 53, 1 L.Ed.2d 54 (1956). The evidence produced at trial established that the jury could make the following factual findings. Just before midnight on December 1, 1978, a Friday, Robinson injured his hand by slamming it against a table while playing cards or a board game. Robinson was being detained in the St. Louis County jail while awaiting trial for armed robbery. Shortly after midnight, Robinson complained about his injury to Roy Cochrell, a guard. Cochrell, after completing a count of the prisoners, reported the injury to Wayne, the shift supervisor. This" }, { "docid": "23017825", "title": "", "text": "created to address is police misconduct that discriminatorily affects Indians as a class. . There is evidence in the record that shows there was a turnover of personnel in the department between the time that the complaints were submitted by the Commission to the City and the date of Yellow Bird’s injury. The record, however, also shows that this turnover did not remedy the situation, and that the newly hired personnel also required close and continuing supervision. . When the jury finished its deliberation, it returned to the courtroom and delivered its verdict to the court. The verdict form read as follows: We, the jury, make the following findings as to the plaintiffs claims against the defendants arising under state law. A finding for the plaintiff against a defendant shall be indicated by a “yes” on the appropriate line. A finding for an individual defendant shall be indicated by a “no” on the appropriate line. Robert Barnes _ No (Yes or No) Clifford Valentine _ No (Yes or No) Terry Weil _No_ (Yes or No) City of Gordon _ No (Yes or No) Roger Etzelmiller _No_ (Yes or No) Maxine Kozal _No_ (Yes or No) James Talbot _No_ (Yes or No) County of Sheridan _No (Yes or No) We, the jury, make the following findings as to the plaintiffs claims against the defendants arising under federal law. A finding for the plaintiff against a defendant shall be indicated by a “Yes” on the appropriate line. A finding for an individual defendant shall be indicated by a “no” on the appropriate line. Robert Barnes NO (Yes or No) Clifford Valentine Yes (Yes or No) Terry Weil NO (Yes or NO) City of Gordon Yes (Yes or No) Roger Etzelmiller NO (Yes or No) Maxine Kozal _ No (Yes or No) The following portion of this verdict shall be used if any of the defendants have been found liable for violating the plaintiffs rights under state or federal law. We, the jury, hereby set the plaintiffs compensatory damages, in words and figures, in the sum of $300.000.00 three hundred thousand dollars &" }, { "docid": "11142482", "title": "", "text": "his sales quota. The fact that Toastmaster articulated a legitimate, nondiscriminatory reason for firing Gilkerson does not, however, entitle it to a verdict in its favor or a judgment notwithstanding the verdict. The jury in its consideration of all the evidence could still find that the plaintiff’s evidence established that the reasons articulated were pretextual. See Tribble v. Westinghouse Electric Corp., 669 F.2d 1193, 1196 (8th Cir.1982), cert. denied, 460 U.S. 1080, 103 S.Ct. 1767, 76 L.Ed.2d 342 (1983). Based upon the verdict for Gilkerson, we believe that the jury adopted Gilkerson’s version of the case and considered the reasons offered by Toastmaster to be pretextual and Toastmaster’s actions to be discriminatory. We have carefully examined the record before us and conclude that there was sufficient evidence to support the jury’s verdict. This is a close case, and it may well be that the panel if sitting as the trier of fact might have found Toastmaster’s proffered reason for Gilkerson’s discharge was not pretextual. However, that is not our task here, and we must assess the sufficiency of the verdict in the context of the district court’s denial of Toastmaster’s motion for judgment notwithstanding the verdict. In doing so we must: 1) consider the evidence in the light most favorable to Gilkerson, who prevailed with the jury; 2) assume that all conflicts in the evidence were resolved by the jury in Gilkerson’s favor; 3) assume as proved all facts which Gilkerson’s evidence tends to prove; 4) give Gilkerson the benefit of all favorable inferences which may reasonably be drawn from the facts proved; and 5) affirm the denial of the motion if reasonable persons could differ as to the conclusions to be drawn from it. Cleverly v. Western Electric Co., supra, 594 F.2d at 641; Farner v. Paccar, Inc., 562 F.2d 518, 522 (8th Cir.1977). Further, for an order entering judgment notwithstanding the verdict to be proper, all the evidence must point one way and be susceptible of no reasonable inferences sustaining the position of the nonmoving party. Brown v. Syntex Laboratories, Inc., 755 F.2d 668, 671 (8th Cir.1985). Reviewing" }, { "docid": "12588509", "title": "", "text": "they were sexually assaulted by Officer Hayles. In addition, City officials and City residents testified that similar accusations had been made against Officer Hayles and other police officers by many other victims. Harris also challenges the City’s assertion that municipal officials had no notice of these prior incidents. Several City officials acknowledged many times at trial that they were aware of past incidents of sexual misconduct by City police officers, that they had received many citizen complaints of such incidents and that they had, on occasion, notified other members of City government about citizen complaints. Harris points out that despite such notice, City officials did not investigate or respond to citizen complaints of sexual misconduct by police officers in any meaningful way. According to Harris, City officials were more than just negligent because they persistently failed to remedy a known and continuing pattern of unconstitutional police misconduct. In Herrera v. Valentine, 653 F.2d 1220 (8th Cir.1981) (Herrera), this court affirmed the liability of the City of Gordon, Nebraska, under § 1983 for injuries to JoAnn Yellow Bird, an Indian woman who was severely beaten by a Gordon police officer. Yellow Bird alleged there existed a pattern of police brutality against Indians that was well known to municipal officials. She presented evidence of many prior citizen complaints to the City of Gordon and to state agencies about police mistreatment of Indians, and also the report of an outside investigation criticizing the City of Gordon’s operation of its police department. Id. at 1225. Finding persuasive the evidence that the City of Gordon knew of a serious problem of racially-motivated police brutality, we held the municipality’s failure to address or correct the known problem amounted to “deliberate indifference to ... violations of a citizen’s constitutional rights” sufficient to sustain municipal liability under § 1983 for Yellow Bird’s beating. Id. at 1224-25. The amount and specificity of proof of direct municipal involvement offered in Herrera contrasts with that offered by the § 1983 claimant in Wilson, 801 F.2d 316. In Wilson, the plaintiff sought to hold the Chief of Police of the City of" }, { "docid": "13573036", "title": "", "text": "motions for directed verdict under Fed.R. Civ.P. 50, both at the close of plaintiff’s case and the close of all the evidence. As stated, the district court denied each of these motions, deciding instead that sufficient evidence had been introduced to submit the case to the jury. The court instructed that a finding of wrongful repossession could be predicated upon proof that Rogers was not in default at the time of the repossession; that although a default had occurred, Allis-Chalmers and Chiles, through the actions of their agents and employees, had waived the right to repossess the vehicle; or, that the manner in which the repossession was accomplished constituted a breach of the peace. Following deliberations, the jury concluded Allis-Chalmers had wrongfully repossessed the bulldozer, and awarded compensatory damages to Rogers. This appeal followed. Liability In passing upon a motion for directed verdict under Fed.R.Civ.P. 50(a), the trial court and this court must (1) consider the evidence in the light most favorable to the plaintiff as the party prevailing with the jury; (2) assume that all conflicts in the evidence were resolved by the jury in the plaintiff’s favor; (3) assume as proved all facts the plaintiff’s evidence tends to prove; and (4) give to the plaintiff the benefit of all favorable inferences which may reasonably be drawn from the facts proved. E.g., McGowen v. Challenge-Cook Brothers, Inc., 672 F.2d 652 at 655 (8th Cir. 1982); Polk v. Ford Motor Co., 529 F.2d 259, 267 (8th Cir.), cert. denied, 426 U.S. 907, 96 S.Ct. 2229, 48 L.Ed.2d 832 (1976). The motion must be denied if, viewing the evidence in this light, reasonable minds might differ as to the conclusions to be drawn. Id. Reviewing the record with these principles in mind, we note initially that it is clear a default had technically occurred under the terms of the installment contract. While the term “default” is not defined in either the agreement or the Arkansas Commercial Code, the contract, as indicated, did require that payments be made on the fifth day of each month, beginning in August, 1978. There is no" }, { "docid": "23017823", "title": "", "text": "and expenses. The total attorneys’ fees and expenses recoverable by the plaintiff are $95,501.68. The costs of this appeal are taxed to the appellants. The appellee is hereby directed to file an affidavit with this Court within twenty days detailing her attorneys’ fees in this appeal. The appellants will have ten days thereafter to respond. We affirm the judgment of the district court as modified. . The Second Circuit Court of Appeals has noted that “[a]n even stronger case for imposing liability for inaction occurs when the municipality fails to remedy a specific situation, the continuation of which causes a deprivation of constitutional rights.” Turpin v. Mailet, 619 F.2d 196, 201 n.5 (2d Cir.), cert. denied, 449 U.S. 1016, 101 S.Ct. 577, 66 L.Ed.2d 475 (1980). . The trial of the case lasted for nearly a month. Almost every factual issue was disputed. At the close of the evidence, and after the jury had been properly instructed, the case was submitted to the jury for its deliberation. The jury returned a plaintiffs verdict. Now the appellants assert, inter alia, that the evidence is insufficient to sustain the jury’s ultimate finding. We have long held, however, that an appellate court is not free to substitute its view of the facts for that of the jury. We consider the evidence in the light most favorable to the plaintiff, Jo Ann Yellow Bird. We assume that all conflicts in the evidence were resolved by the jury in the plaintiffs favor. We assume as proved all facts that Yellow Bird’s evidence tends to prove. We give the plaintiff the benefit of all favorable inferences that reasonably may be drawn from the facts proved. Finally, if we determine that reasonable minds could differ as to the conclusions to be drawn, we must affirm the judgment of the district court. Northrup v. Archbishop Bergan Mercy Hospital, 575 F.2d 605, 607 (8th Cir. 1978). . The Nebraska Indian Commission is a state agency created by the Governor; its purpose is to assist Indians with resolving problems they encounter within their communities. Among the problems the Commission was" }, { "docid": "3162625", "title": "", "text": "of his actions. Whitehead later told Smith that he would prosecute him for contempt if he attempted to attack the Sheriff’s Office at his Commission hearing. This independent evidence of an illegal association between Hurley and the defendants was adequate to permit the admission into evidence of Hurley’s statements made during the course of the conspiracy. We agree with the defendants’ next contention that Hurley’s statements to Mullenaux, Dusseldorp, and Danley after Smith’s discharge and the Commission hearing were not in furtherance of the conspiracy. However, the district court held that these statements were admissible on other grounds. We find no error in this determination; nor do defendants appear to challenge the ruling. E. Sufficiency of the Evidence In their posttrial motions, the appellants sought judgment notwithstanding the verdict on the ground that the evidence did not support the jury verdict against them. The standard for ruling on such motions was set forth in Hanson v. Ford Motor Company, 278 F.2d 586 (8th Cir. 1960): [I]n passing upon the motion for judgment, the trial court and this court are (1) to consider the evidence in the light most favorable to the plaintiffs as the parties prevailing with the jury; (2) to assume that all conflicts in the evidence were resolved by the jury in favor of the plaintiffs; (3) to assume as proved all facts which plaintiffs’ evidence tends to prove; (4) to give the plaintiffs the benefit of all favorable inferences which may reasonably be drawn from the facts proved; and (5) to deny the motion if, reviewing the evidence in this light, reasonable men could differ as to the conclusions to be drawn from it. Id. at 596. Moreover, “[circumstantial as well as direct evidence ... is relevant to a determination of sufficiency” of the evidence in supporting the jury verdict, and the verdict may be overturned “ ‘only where the evidence points all one way and is susceptible of no reasonable inferences sustaining the position of the nonmoving party.’ ” Zoll v. Eastern Allamakee Community School District, 588 F.2d 246, 250 (8th Cir.1978) quoting Giordano v. Lee," }, { "docid": "6753342", "title": "", "text": "the jury’s. I therefore respectfully dissent. In evaluating the district court’s decision on a judgment notwithstanding the verdict, we must: 1) consider the evidence in the light most favorable to [Pickens], who prevailed with the jury; 2) assume that all conflicts in the evidence were resolved by the jury in [Pickens’] favor; 3) assume as proved all facts which [Pickens’] evidence tends to prove; 4) give [Pick-ens] the benefit of all favorable inferences which may reasonably be drawn from the facts proved; and 5) affirm the denial of the motion if reasonable persons could differ as to the conclusions to be drawn from it. Morgan v. Arkansas Gazette, 897 F.2d 945, 948 (8th Cir.1990)(internal quotation omitted). The majority, however, recites a version of the facts closely mirroring those set forth in Soo Line’s brief, rather than those facts that tend to prove Pickens’ case. If considered in the light most favorable to Pickens, the record reveals the following facts. Pickens had worked as a railroad conductor for the Soo Line for over 20 years. During that period he never had any safety or disciplinary problems. In 1992, when a train’s brakes malfunctioned, Pickens sustained a back injury. After the injury, Pickens was off work for three years. In October 1995, Soo Line brought Pickens back as a switch-man, ostensibly because that position would be compatible with his medical restrictions limiting his lifting and working hours. The switchman position, however, required heavy lifting, which caused Pick-ens pain and would have exacerbated his disability. Pickens talked with his doctor regarding a return to the conductor position, which was less physically strenuous than the switchman position. Shortly thereafter, his doctor approved the change to the conductor position, contingent upon Pickens’ ability to tolerate back pain. Pickens then returned to work as a conductor, and he maintained a fairly consistent work schedule of two to three days a week. When his back flared up, he would “lay off’ from the board, which meant that he was not available for call that day. Conductors at the Soo Line do not typically work a regular schedule." }, { "docid": "23017824", "title": "", "text": "appellants assert, inter alia, that the evidence is insufficient to sustain the jury’s ultimate finding. We have long held, however, that an appellate court is not free to substitute its view of the facts for that of the jury. We consider the evidence in the light most favorable to the plaintiff, Jo Ann Yellow Bird. We assume that all conflicts in the evidence were resolved by the jury in the plaintiffs favor. We assume as proved all facts that Yellow Bird’s evidence tends to prove. We give the plaintiff the benefit of all favorable inferences that reasonably may be drawn from the facts proved. Finally, if we determine that reasonable minds could differ as to the conclusions to be drawn, we must affirm the judgment of the district court. Northrup v. Archbishop Bergan Mercy Hospital, 575 F.2d 605, 607 (8th Cir. 1978). . The Nebraska Indian Commission is a state agency created by the Governor; its purpose is to assist Indians with resolving problems they encounter within their communities. Among the problems the Commission was created to address is police misconduct that discriminatorily affects Indians as a class. . There is evidence in the record that shows there was a turnover of personnel in the department between the time that the complaints were submitted by the Commission to the City and the date of Yellow Bird’s injury. The record, however, also shows that this turnover did not remedy the situation, and that the newly hired personnel also required close and continuing supervision. . When the jury finished its deliberation, it returned to the courtroom and delivered its verdict to the court. The verdict form read as follows: We, the jury, make the following findings as to the plaintiffs claims against the defendants arising under state law. A finding for the plaintiff against a defendant shall be indicated by a “yes” on the appropriate line. A finding for an individual defendant shall be indicated by a “no” on the appropriate line. Robert Barnes _ No (Yes or No) Clifford Valentine _ No (Yes or No) Terry Weil _No_ (Yes or No)" }, { "docid": "23017788", "title": "", "text": "HEANEY, Circuit Judge. This matter comes before the Court for a second time. We originally remanded the case to the district court to determine the amount that Jo Ann Yellow Bird is entitled to for attorney’s fees and expenses. The district court has made its determination. We now reach the merits of the appeal and affirm the judgment of the court below except insofar as it relates to the award of attorneys’ fees and expenses. I On September 15, 1976, Jo Ann Yellow Bird, an Indian woman visibly in the later months of pregnancy, was kicked in the stomach by Clifford Valentine, a police officer employed by the City of Gordon, Nebraska. Valentine was attempting to arrest Yellow Bird’s husband at the time of the incident. As Yellow Bird went to the aid of her husband, Valentine kicked her in the abdomen, throwing her to the ground. After he had kicked her, Valentine handcuffed her and forced her into the back of his patrol car. Yellow Bird’s pleas for medical attention were ignored. Instead of driving her a few blocks to the nearest hospital, Valentine drove her nearly twenty miles to the county jail. On the way to the jail, Valentine stopped the car and threatened to take Yellow Bird out into the country and shoot her. She was arrested and jailed; her requests for counsel were also ignored. As a result of the beating and inattention to her medical needs, she suffered physical and emotional injuries; her unborn child died in her womb and was delivered dead two weeks later. Thereafter, Yellow Bird filed a lawsuit in federal district court alleging violations of her federal civil rights, as well as various state law claims.. She named fourteen parties as defendants in the case, including Valentine and the City of Gordon. After a lengthy trial, the jury returned a verdict that found the City of Gordon and Valentine liable for violating Yellow Bird’s federal civil rights. The jury awarded the plaintiff $300,000 in compensatory damages. The defendants’ post-trial motions challenging the verdict were denied and this appeal followed. On appeal," }, { "docid": "12588510", "title": "", "text": "Yellow Bird, an Indian woman who was severely beaten by a Gordon police officer. Yellow Bird alleged there existed a pattern of police brutality against Indians that was well known to municipal officials. She presented evidence of many prior citizen complaints to the City of Gordon and to state agencies about police mistreatment of Indians, and also the report of an outside investigation criticizing the City of Gordon’s operation of its police department. Id. at 1225. Finding persuasive the evidence that the City of Gordon knew of a serious problem of racially-motivated police brutality, we held the municipality’s failure to address or correct the known problem amounted to “deliberate indifference to ... violations of a citizen’s constitutional rights” sufficient to sustain municipal liability under § 1983 for Yellow Bird’s beating. Id. at 1224-25. The amount and specificity of proof of direct municipal involvement offered in Herrera contrasts with that offered by the § 1983 claimant in Wilson, 801 F.2d 316. In Wilson, the plaintiff sought to hold the Chief of Police of the City of North Little Rock liable for a police roadblock set up one evening outside a local skating rink, allegedly for the purpose of harassing black customers. The theory of liability was that the police chief had failed to prevent an unconstitutional police action by his subordinates. There was no evidence that the Chief of Police knew of the roadblock until the day after it was completed. Nonetheless, as evidence that the police chief had tacitly authorized the roadblock, the plaintiff argued in general terms that the police chief had supervisory authority over his subordinates and offered vague testimony by another police officer that “there was very little done ... that he didn’t direct.” Id. at 323. We held this evidence insufficient to show that the Chief of Police had tacitly authorized the roadblock. Id. We are satisfied that Harris has proved the existence of the municipal custom she has alleged and we uphold the jury verdict in her favor. When we review a challenge to the sufficiency of the evidence supporting a jury verdict, we consider" }, { "docid": "23017797", "title": "", "text": "conduct and selective enforcement of the laws were among the many infractions cited. The Yellow Birds were essentially spokespersons for the dissident group. Their complaints were a subject of community-wide knowledge. Dissatisfied with the City’s failure to remedy their complaints, Yellow Bird wrote to the Acting Director of the Nebraska Indian Commission, Stephen F. Janis. Because of numerous other complaints regarding the misconduct of the Gordon police, the Commission went to Gordon and convened a hearing in early 1976. At that hearing, attended by both Indians and Caucasians, the Commission received nearly forty separate complaints of police misconduct. These complaints were taken under advisement and later submitted to the Mayor of Gordon. A few months later, the Commission reconvened in Gordon and heard more complaints. After this meeting, Janis appeared at a City Council meeting and personally handed the Mayor the citizens’ complaints. The entire City Council was given a summary of the complaints that had been prepared by an attorney with Panhandle Legal Services. The Yellow Birds also appeared before the City Council and once again made known their various complaints. The meeting, and more particularly the Yellow Birds’ participation, was well publicized in the local newspapers. The Commission asked the City to remedy the problem and report back to it. The City neither remedied the problem nor reported back. The matter was apparently turned over to the Sheridan County Attorney’s Office, which later reported to the Mayor of Gordon that it was obvious that the City’s police force considered themselves “overlords,” whose orders were to be obeyed without question. A similar conclusion was reached by Security Services of Lincoln, Nebraska, an outside agency investigating the Gordon Police Department. The foregoing demonstrates that the City was adequately notified that its five-member police force needed close and continuing supervision. It, however, permitted its overzealous police force to continue its overlording. The inevitable result was the kind of misconduct that caused Yellow Bird’s physical beating, the loss of her unborn child and her medical and emotional problems. The jury was properly and adequately instructed on the City’s potential section 1983 liability." }, { "docid": "23017796", "title": "", "text": "that it inevitably results in police misconduct, “the municipality exhibits a ‘deliberate indifference’ to the resulting violations of a citizen’s constitutional rights.” Leite v. City of Providence, 463 F.Supp. 585, 590 (D.R.I.1978); cf. Goodman v. Parwatikar, 570 F.2d 801, 803 (8th Cir. 1978); Freeman v. Lockhart, 503 F.2d 1016, 1017 (8th Cir. 1974). Moreover, a municipality’s continuing failure to remedy known unconstitutional conduct of its police officers is the type of informal policy or custom that is amenable to suit under section 1983. See Monell v. Department of Soc. Serv., supra, 436 U.S. at 690-691 & n.56, 98 S.Ct. at 2035-2036 & n.56. A We are satisfied that Yellow Bird proved her case against the City of Gordon. It is undisputed that racial tension was at a peak before, during and after the incident giving rise to this lawsuit. Well before she was injured by the Gordon police, Yellow Bird, her husband and many other Indians and Caucasians as well, complained to the authorities of continuing police misconduct. Use of excessive force, sexual misconduct, racist conduct and selective enforcement of the laws were among the many infractions cited. The Yellow Birds were essentially spokespersons for the dissident group. Their complaints were a subject of community-wide knowledge. Dissatisfied with the City’s failure to remedy their complaints, Yellow Bird wrote to the Acting Director of the Nebraska Indian Commission, Stephen F. Janis. Because of numerous other complaints regarding the misconduct of the Gordon police, the Commission went to Gordon and convened a hearing in early 1976. At that hearing, attended by both Indians and Caucasians, the Commission received nearly forty separate complaints of police misconduct. These complaints were taken under advisement and later submitted to the Mayor of Gordon. A few months later, the Commission reconvened in Gordon and heard more complaints. After this meeting, Janis appeared at a City Council meeting and personally handed the Mayor the citizens’ complaints. The entire City Council was given a summary of the complaints that had been prepared by an attorney with Panhandle Legal Services. The Yellow Birds also appeared before the City Council and" } ]

[ { "docid": "22340045", "title": "", "text": "the mischief. It was not a' duty due to a person solely because he was in danger of being hurt, but a duty owed to a person whom the defendant had undertaken to deliver, and who was entitled to be- delivered safely by being allowed to alight without danger. Yiewed in this light, the instruction was unobjectionable. If the conductor negligently failed to observe whether plaintiff: had alighted, or knowing that he had not, negligently started the car too soon, and in consequence of that, a sudden jerk of the -car took place and threw him down and was the immediate cause of his falling, and the accident would not have happened but for 'that fact, we think it clear that such negligence as might be imputed to the plaintiff in being upon the step at all, could ■not, under the circumstances supposed, be properly, held to have been contributory negligence. To hold so would be to determine that a carrier could defend his own- negligence in the particulars named upon, the ground that if the plaintiff had not been there he would not have been hurt. It may be said that he placed himself where he was in.risk of falling off, but that was a risk -he could not have anticipated- as the result of a sudden start before he had got off, because he had a right to assume' that the car would actually stop to allow him to get off,, and if it had, as it should have done, upon the hypothesis of the instruction, no accident would have happened. Under the terms of the instruction the injury ensued directly from the defendant’s negligence, and that was its proximate cause. Inland and Seaboard Coastvng Co. v. Tolson, 139 U. S. 551, 558. The learned judge who tried the case, in explaining its various aspects, stated that it suggested four theories as to the cause of- the accident, and whether there was sufficient or any evidence to support any one of these theories, he should leave to the jury. He meant, of course, that the jury should consider" } ]

[ { "docid": "10875568", "title": "", "text": "32 Sup. Ct. 79, 56 L. Ed. -, decided December 11, 1911, and also Mt. Adams, etc., Inclined Ry. Co. v. Lowery, 20 C. C. A. 596, 74 Fed. 463. Dell’s testimony, therefore, to the effect that his vision 300 or 400 feet west of the yard office when looking in the direction of the Jamestown depot was obscured by steam, constitutes no substantial contradiction to the testimony of the nine other witnesses that their vision at or east of the yard office was not obscured at. all. Contention is made in considering the issue of contributory negligence that Starr’s conduct should be measured and adjudged bjr his environments, in the light of the confusion arising from his alleged beclouded vision, the escape of steam, and all other facts and circumstances surrounding him; and our attention is called to the case of Kain v. Northern Central Railway, 128 U. S. 91, 9 Sup. Ct. 16, 32 L. Ed. 339; Grand Trunk Ry. Co. v. Ives, 144 U. S. 408, 433, 12 Sup. Ct. 679, 36 L. Ed. 485. The principle so invoked is undoubtedly sound and the facts referred to have been taken into consideration in reaching our conclusion on this issue. They disclose that Starr’s environment was not such as precluded the exercise of ordinary care by him, and that on the undisputed proof in the case he failed to exercise it. Argument is next made that there was sufficient evidence to go to the jury on the question whether, after the defendant discovered Starr’s actual peril, it failed to exercise ordinary care to avoid running over him. This is an issue not made by the pleadings, or, so far as we can discover, ever called to the attention of the trial court. ' It presupposes or concedes the existence of contributory negligence, and seeks to avoid its consequence by subsequent occurrences. If it were true that Starr was in a state of actual peril, that the defendant had actual knowledge of that peril, and after that knowledge was acquired failed to exercise ordinary care to prevent in jurying" }, { "docid": "21635350", "title": "", "text": "close of the testimony the defendants renewed their motion for a directed verdict, and the court sustained it, saying that plaintiff’s own testimony had proven him guilty of contributory negligence. Judgment was entered upon the directed verdict, and this appeal was taken. In our opinion the judgment of the lower court was right. It is settled law that a motion to direct a verdict against the plaintiff is an admission of every fact in evidence tending to sustain Ms case and of every inference reasonably dedueible therefrom, and that the motion can be granted only when but one reasonable view can be taken of the evi denee and the conclusions therefrom, and that view is utterly opposed to the plaintiff’s right to recover. Glaria v. Wash. Southern Ry. Co., 30 App. D. C. 559. It is a familiar rule in negligence eases that, “when a given state of facts is such that reasonable men may fairly differ upon the question as to whether there was negligence or not, the determination of the matter is for the jury. It is only where the facts are such that all reasonable men must draw the same conclusion from them, that the question of negligence is ever considered as one of law for the court.” Grand Trunk Railway Co. v. Ives, 144 U. S. 408, 417, 12 S. Ct. 679, 683 (36 L. Ed. 485). At the same time it is well settled that the court may withdraw a ease from the jury altogether, and direct a verdict against plaintiff, where the evidence against him is undisputed, or of such conclusive character that the court, in the exercise of a sound judicial discretion, would be compelled to set aside a verdict returned in opposition to it. Patton v. Texas & Pacific Railroad Co., 179 U. S. 658, 659, 21 S. Ct. 275, 45 L. Ed. 361. “It is true that, where the undoubted facts and circumstances in evidence clearly show that one about to cross a railway track must inevitably have seen a coming car or train if he had actually looked in its" }, { "docid": "10363890", "title": "", "text": "risks assumed by Crotty. Chicago, Milwaukee & St. Paul Ry. Co. v. Donovan, 87 C. C. A. 600, 160 Fed. 826. (2) If, with Crotty’s exposed position as one of the existing and known conditions affecting the conductor’s duty in the. premises, he negligently caused the train to come back in the manner just stated, and that was the immediate cause of the fatal injury, the fact that Crotty was negligent in taking such an exposed position was no defense to the action, in so far as it was grounded upon such supervening negligence of the conductor. Chunn v. City & Suburban Ry. Co., 207 U. S. 302, 309, 28 Sup. Ct. 63, 52 L. Ed. 219; Louisville, etc., Co. v. East Tennessee, etc., Co., 9 C. C. A. 314, 317, 60 Fed. 993; Cincinnati Co. v. Whitcomb, 14 C. C. A. 183, 189, 66 Fed. 915. Upon this point, the case is readily distinguishable from St. Louis & San Francisco Ry. Co. v. Schumacher, 152 U. S. 77, 81, 14 Sup. Ct. 479, 38 L. Ed. 361, Illinois Central R. Co. v. Ackerman, 76 C. C. A. 13, 144 Fed. 959, and Denver City Tramway Co. v. Cobb (C. C. A.) 164 Fed. 41, wherein it conclusively appeared that it was within the power of the injured person, down to the moment of the injury, to avoid it by the exercise of reasonable care; for, practically speaking, while Crotty was attempting to hold the post in a proper position between the moving train and car, he was without power to take precautions for his own safety, and was dependent upon such as were taken by the conductor. \\ But it is urged that the charge relating to the supervening negligence of the conductor was first brought into the case by the amend-' ment to the petition allowed after our former judgment of reversal, that the limited period prescribed in the state statute for commencing actions such as this had then expired, and that the defense based upon the statutory limitation was conclusively established in so far as that charge" }, { "docid": "7929611", "title": "", "text": "v. Capital Transit Company, 1938, 69 App.D.C. 147, 99 F.2d 380; Kabler’s Adm’r v. Southern R. Co., 1917, 121 Va. 90, 92 S.E. 815; Wilson’s Adm’x v. Virginia Portland R. Co., 1917, 122 Va. 160, 94 S.E. 347; Harper, Torts (1933) § 140; Restatement, Torts (1934) §§ 479, 480. Since it is at least doubtful whether the facts of the present case justify application of the doctrine, we do not think we should undertake to discuss it in detail at this time. Affirmed. VINSON, Associate Justice (dissenting). The appellants requested an instruction upon the doctrine of the last clear chance as set out in their prayer No. 1. In the original opinion, we held that the refusal to grant this prayer was correct; that the prayer was defective “in that it does not require either that the peril of the plaintiff Lottie Stewart be inescapable, or that she be oblivious to it.”, .On rehearing the majority decide that, before the doctrine of last clear chance may be invoked, the peril must be inescapable or there be obliviousness to it. With this I cannot agree, nor do I think that the authorities cited by the majority support their conclusions. Inescapable peril, or obliviousness to peril, may waken into action this doctrine, but I cannot agree to limit its scope to the presence of one of these conditions. It is much broader. For my position, I cite the following cases: Inland & Seaboard Coasting Co. v. Tolson, 139 U.S. 551, 11 S.Ct. 653, 35 L.Ed. 270; Grand Trunk Railway Co. v. Ives, 144 U.S. 408, 12 S.Ct. 679, 36 L.Ed. 485; Chunn v. City & Suburban Railway of Washington, 207 U.S. 302, 28 S.Ct. 63, 52 L.Ed. 219; Hawley v. Columbia Ry. Co., 25 App.D.C. 1; Capital Traction Co. v. Divver, 33 App.D.C. 332; Baltimore & O. R. Co. v. Griffith, 34 App.D.C. 469; Washington Railway & Elec. Co. v. Cullember, 39 App.D.C. 316; Terminal Taxicab Co. v. Blum, 54 App.D.C. 357, 298 F. 679; Kelly Furniture Co. v. Washington Ry. & Elec. Co., 64 App.D.C. 215, 76 F.2d 985; Boaze v." }, { "docid": "10875570", "title": "", "text": "him, these facts might create a cause of action or.might excuse the contributory negligence which brought Starr into his position of peril. St. Louis & S. F. R. Co. v. Whittle, 20 C. C. A. 196, 74 Fed. 296; Inland & Seaboard Coasting Co. v. Tolson, 139 U. S. 551, 558, 11 Sup. Ct. 653, 35 L. Ed. 270; Chunn v. City & Suburban Ry. Co., 207 U. S. 302, 28 Sup. Ct. 63, 52 L. Ed. 219, and cases cited. On this subject we took occasion in the recent case of St. Louis & S. F. R. Co. v. Summers; 97 C. C. A. 328, 173 Fed. 358, to say: “The rule is well settled that, notwithstanding such contributory negligence of a traveler in crossing a railroad track as precludes recovery for the primary negligence of the railroad company in operating its train so as to bring about a collision with him, yet another and different cause of action arises in favor of the traveler if for any reason he is exposed to eminent peril and danger, and the railroad company, after actually discovering that condition, could, by the exercise of ordinary care, have stopped its train, or otherwise have avoided injuring him, and failed to do so. [Cases cited.] But in the application of this rule care must be taken to avoid undermining the rule of contributory negligence. Such negligence of the traveler in law fully exonerates the railroad company from the consequences of its original negligence, and some new and subsequent act of negligence must arise to create a cause of action; and tins new or secondary act must be established by proof, unaided by the former acts, which have been excused by the traveler’s contributory negligence.” The difference between a cause of action for the primary negligence and one for the secondary negligence referred to in that case is striking. In the first case, the defendant would be liable if by the exercise of reasonable care he ought to have known or anticipated plaintiff’s danger and failed to exercise ordinary care to avoid injuring him, but" }, { "docid": "10875569", "title": "", "text": "L. Ed. 485. The principle so invoked is undoubtedly sound and the facts referred to have been taken into consideration in reaching our conclusion on this issue. They disclose that Starr’s environment was not such as precluded the exercise of ordinary care by him, and that on the undisputed proof in the case he failed to exercise it. Argument is next made that there was sufficient evidence to go to the jury on the question whether, after the defendant discovered Starr’s actual peril, it failed to exercise ordinary care to avoid running over him. This is an issue not made by the pleadings, or, so far as we can discover, ever called to the attention of the trial court. ' It presupposes or concedes the existence of contributory negligence, and seeks to avoid its consequence by subsequent occurrences. If it were true that Starr was in a state of actual peril, that the defendant had actual knowledge of that peril, and after that knowledge was acquired failed to exercise ordinary care to prevent in jurying him, these facts might create a cause of action or.might excuse the contributory negligence which brought Starr into his position of peril. St. Louis & S. F. R. Co. v. Whittle, 20 C. C. A. 196, 74 Fed. 296; Inland & Seaboard Coasting Co. v. Tolson, 139 U. S. 551, 558, 11 Sup. Ct. 653, 35 L. Ed. 270; Chunn v. City & Suburban Ry. Co., 207 U. S. 302, 28 Sup. Ct. 63, 52 L. Ed. 219, and cases cited. On this subject we took occasion in the recent case of St. Louis & S. F. R. Co. v. Summers; 97 C. C. A. 328, 173 Fed. 358, to say: “The rule is well settled that, notwithstanding such contributory negligence of a traveler in crossing a railroad track as precludes recovery for the primary negligence of the railroad company in operating its train so as to bring about a collision with him, yet another and different cause of action arises in favor of the traveler if for any reason he is exposed to eminent" }, { "docid": "16065408", "title": "", "text": "are either not in a position to hear, or do not pay such attention as probably would enable them to hear, a warning of an approaching ear does not raise an issue of fact, and it is insufficient to withstand a motion for a directed verdict. Globe Indemnity Co. v. Stenger, 82 Colo. 47, 256 P. 658; Chicago & E. I. Ry. Co. v. Sellars (C. C. A.) 5 F.(2d) 31; Lehigh Valley R. Co. v. Mangan (C. C. A.) 278 F. 85. It is also clear that the evidence affords no support for the third specification of negligence. The street car,, as already stated, was driven at a lawful speed, and there was no evidence tending to show the facts essential to this ground of complaint, that the motorman discovered or negligently failed to discover the peril of appellants in time to stop the car and avoid the collision. Chunn v. City & Suburban Railway, 207 U. S. 302, 28 S. Ct. 63, 52 L. Ed. 219; Kansas City So. R. Co. v. Ellzey, 275 U. S. 236, 48 S. Ct. 80, 72 L. Ed. 259; Toledo, St. L. & W. R. Co. v. Allen, 276 U. S. 165, 48 S. Ct. 215, 72 L. Ed. 513. The Supreme Court, in Gunning v. Cooley, supra, restated the rule that a scintilla-of evidence is insufficient for submission to a jury and in connection with citations to and quotations from leading cases in that Ocourt, it was said: “Where the evidence upon any issue is all on one side or so overwhelmingly on one side as to leave no room to doubt what the fact is, the court should give a peremptory instruction to the jury. * * * ‘When a plaintiff produces evidence that is consistent with an hypothesis that the defendant is not negligent, and also with one that he is, his proof tends to establish neither.’ ” Applying the tests given in that ease, the conclusion is required that neither of the appellants made out a ease for the jury, and a verdict was properly directed for the" }, { "docid": "9858023", "title": "", "text": "sufficient to constitute a cause of action, and that the testimony of the plaintiff shows that he was guilty of contributory negligence.” The motion was denied and the defendant excepted. The question of contributory negligence thus presented is the principal one argued. In approaching its discussion it is wise to keep in mind two controlling principles of law. First. Contributory negligence is a defense in the United States courts. It is not incumbent upon the plaintiff to prove the exercise of due care and caution on his part, the burden being upon the defendant, to prove the absence of such care, namely, concurring negligence. Hough v. Railroad Company, 100 U. S. 213, 25 L. Ed. 612; Inland & Seaboard Coasting Company v. Tolson, 139 U. S. 551, 11 Sup. Ct. 653, 35 L. Ed. 270; Railway Company v. Gladmon, 15 Wall. 401, 21 L. Ed. 114; Northern Pacific Railroad v. Amato, 144 U. S. 465, 12 Sup. Ct. 740, 36 L. Ed. 596; Grand Trunk R. Co. v. Ives, 144 U. S. 408, 12 Sup. Ct. 679, 36 L. Ed. 485. Second. As a general rule this question is for the jury. It is only where the evidence is practicably undisputed and the inferences deducible therefrom point to the conclusion that the plaintiff was at fault, and to that conclusion alone, that the court is justified in determining the question as a matter of law. Railway Company v. Woodson, 134 U. S. 614, 10 Sup. Ct. 628, 33 L. Ed. 1032; Dunlap v. Railroad Company, 130 U. S. 649, 9 Sup. Ct. 647, 32 L. Ed. 1058; Gard ner v. Michigan Central Railroad Company, 150 U. S. 349, 14 Sup. Ct. 140, 37 L. Ed. 1107. We are of the opinion that the trial court could not under these well known rules have directed a verdict for the defendant at the close of the plaintiff’s case. The account of the accident, sustained by three witnesses, was that when the plaintiff crossed the 28 foot driveway of Park avenue the defendant’s horse was 80 feet distant. If this be true it" }, { "docid": "16065407", "title": "", "text": "ordinance required the warning 50 feet from the crossing. Gilstrap failed to state definitely when or where he listened for the hell. Miss Summers, one of the plaintiffs, stated she did not see or hear any street ear, paid no attention where they were going and was not watching for ears or automobiles, and the first she knew of this ear was when it struck her. The other plaintiff, Miss Rice, stated she did not hear or see the car, and only knew of the crash. The motorman testified he sounded the bell. The three passenger witnesses testified they heard it. And Bruce further testified that when he was on Marion avenue he heard the car coming and the bell ringing a quarter or tliird of a block from the corner of Fourth avenue, and ran to catch the ear, but did not reach it in time. Thus, the testimony of the defendant was positive. That of the plaintiffs was negative in character, but such testimony when given as in this ease by witnesses who are either not in a position to hear, or do not pay such attention as probably would enable them to hear, a warning of an approaching ear does not raise an issue of fact, and it is insufficient to withstand a motion for a directed verdict. Globe Indemnity Co. v. Stenger, 82 Colo. 47, 256 P. 658; Chicago & E. I. Ry. Co. v. Sellars (C. C. A.) 5 F.(2d) 31; Lehigh Valley R. Co. v. Mangan (C. C. A.) 278 F. 85. It is also clear that the evidence affords no support for the third specification of negligence. The street car,, as already stated, was driven at a lawful speed, and there was no evidence tending to show the facts essential to this ground of complaint, that the motorman discovered or negligently failed to discover the peril of appellants in time to stop the car and avoid the collision. Chunn v. City & Suburban Railway, 207 U. S. 302, 28 S. Ct. 63, 52 L. Ed. 219; Kansas City So. R. Co. v. Ellzey," }, { "docid": "9858022", "title": "", "text": "no danger he kept on. Before he got across Park avenue the south bound wagon came into collision with the victoria and he was knocked off the box and fell to the street, receiving injuries. This wagon was owned by the defendant and was a heavy butcher wagon drawn by one horse. The horse or the shafts struck the rear wheel of the victoria with force sufficient to break the opposite wheel. There is a grade toward the south on Park avenue at this point of four and a half to five feet in a hundred. The width of the driveway of Sixty-Seventh street is 30 feet. The westerly course of Park avenue is paved with asphalt, except that near the curb there is a strip about nine feet wide paved with Belgian blocks. The foregoing version of the accident is corroborated by the two occupants of the carriage. At the close of the plaintiff’s case, counsel for defendant moved “to dismiss the complaint on the ground that the plaintiff has failed to prove facts sufficient to constitute a cause of action, and that the testimony of the plaintiff shows that he was guilty of contributory negligence.” The motion was denied and the defendant excepted. The question of contributory negligence thus presented is the principal one argued. In approaching its discussion it is wise to keep in mind two controlling principles of law. First. Contributory negligence is a defense in the United States courts. It is not incumbent upon the plaintiff to prove the exercise of due care and caution on his part, the burden being upon the defendant, to prove the absence of such care, namely, concurring negligence. Hough v. Railroad Company, 100 U. S. 213, 25 L. Ed. 612; Inland & Seaboard Coasting Company v. Tolson, 139 U. S. 551, 11 Sup. Ct. 653, 35 L. Ed. 270; Railway Company v. Gladmon, 15 Wall. 401, 21 L. Ed. 114; Northern Pacific Railroad v. Amato, 144 U. S. 465, 12 Sup. Ct. 740, 36 L. Ed. 596; Grand Trunk R. Co. v. Ives, 144 U. S. 408, 12 Sup." }, { "docid": "23131964", "title": "", "text": "20 L. Ed. 160; Inland & Seaboard Coasting Co. v. Tolson, 139 U. S. 551, 11 S. Ct. 653, 35 L. Ed. 270; Patton v. Texas & Pacific R. Co., 179 U. S. 658, 663, 21 S. Ct. 275, 45 L. Ed. 361; Kansas City, F. S. & M. R. Co. v. Stoner, 49 F. 209 (C. C. A. 8); Minneapolis Street Railway Co. v. Odegaard, 182 F. 56 (C. C. A. 8); North Jersey St. Ry. Co. v. Purdy, 142 F. 955 (C. C. A. 3); Lee Line Steamers v. Robinson, 218 F. 559, L. R. A. 1916C, 358 (C. C. A. 6). The maxim has .been applied in two eases growing out of accidents on escalators. Petrie v. Kaufmann & Baer Co., 291 Pa. 211, 139 A. 878; Hesemann v. May Dept. Stores Co., 225 Mo. App. 584, 39 S.W.(2d) 797. In two other cases growing out of escalator accidents, the maxim, however,, has not been applied. Fuller v. Wurzburg Dry Goods Co., 192 Mich. 447, 158 N. W. 1026; Conway v. Boston Elevated R. Co., 255 Mass. 571, 152 N. E. 94. In the Michigan case, the plaintiff claimed that she was thrown down and injured by a peculiar motion of the escalator. The court refused to apply the maxim, saying: “But in making this contention counsel overlooks the fact that before this inference of negligence can be drawn, something more must be shown than the mere happening of the accident. In the ease before us there was no testimony, direct or indirect, as to any negligence in the construction or in the operation of the stairway.” In the Massachusetts case, the hand of a child six years old was caught beneath the moving hand belt of the escalator. No attempt was made to describe the mechanism of the conveyance, and there were attempts to prove specific negligence. The court said (255 Mass. 574, 152 N. E. 94): “The doctrine of res ipsa loquitur is not applicable* to the present ease. There is no description of the mechanism of the escalator or what , method, if any," }, { "docid": "23142761", "title": "", "text": "Suburban Ry., 207 U. S. 302 .... The plaintiff’s right to recover was not barred' if his negligence was only a remote, cause of his injury, and Merchant’s negligence was the sole proximate cause of it.” This language suggests that the circuit court of appeals thought this case to be governed by the doctrine of the last. clear chance. That doctrine, rightly applied in the Chunn case, amounts to no more than this, that a negligent defendant will be held liable to a negligent plaintiff if the defendant, aware of the plaintiff’s peril or unaware of it only through carelessness, had in fact a later opportunity than the plaintiff to avert an accident. Grand Trunk Ry. v. Ives, 144 U. S. 408, 428; Inland and Seaboard Coasting Co. v. Tolson, 139 U. S. 551, 558. In the cases applying the rule the parties have been engaged in independent courses of negligent conduct. The classic instance is that in which the plaintiff had improvidently left his animal tied in a roadway where it was injured by the' defendant’s negligent operation of his vehicle. Davis v. Mann, 10 M. & W. 546. It rests on the assumption that he is the more culpable, whose opportunity to avoid the injury was later. On the facts assumed by the circuit court of appeals— that Merchant was driving the car recklessly with respondent’s encouragement or acquiescence — the respondent and Merchant were engaged in a common venture which, acting together,'they were carrying on in a careless manner. In such a case their courses of conduct are not sufficiently independent to let it be said that either one or the other had in fact a later opportunity to avoid the consequences of their joint negligence. Compare St. Louis & San Francisco Ry. v. Schumacher, 152 U. S. 77; Wheelock v. Clay, 13 Fed. (2d) 972; Kinney v. Chicago, Great Western R. R., 17 Fed. (2d) 708; Denver City Tramway Co. v. Cobb, 164 Fed. 41. We think that the doctrine of the last clear chance was not involved here. If the jury found negligence on the" }, { "docid": "22239999", "title": "", "text": "that the plaintiff was guilty, of contributory negligence. That issue with the others in the case should have been submitted to the jury with appropriate instructions. Nor is it clear that, even if the plaintiff.was not free from fault, her negligence was the proximate cause of ■ the injury. If she- carelessly placed herself in, a position exposed to danger, and it was discovered by the defendant in time to have avoided the injury by the use of reasonable care on its'par.t, and the defendant failed to use such care, that failure might be found to be the sole' cause of the resulting injury. Inland & Seaboard Coasting Co. v. Tolson, 139 U. S. 551; Grand Trunk Railway Co. v. Ives, 144 U. S. 408, 429; Washington & Georgetown Railroad v. Harmon, 147 U. S. 571, 583; Tuff v. Warman, 5 C. B. N. S. 573; Radley v. London & North Western Railway Co., 1 App. Cas. 754; Thompson on Negligence (2d ed.), §§238, 239; Pollock on Torts (6th ed.), pp. 441 to 447 inclusive. The judgment is -reversed and the case remanded to the Court of Appeals, with directions to reverse the judgment of the Supreme Court of the District of Columbia, and remand the cause to that court with a direction to set aside the verdict and award a new trial." }, { "docid": "23142760", "title": "", "text": "holding this instruction improper, pointed out portions of the evidence indicating that respondent’s conversations with Merchant, relied on to show that he urged or advised Mérchant to drive the motor car at a dangerous rate of speed, took place at. Carson and later at De Ridder, on petitioner’s line, and that the accident occurred after leaving De Ridder and while proceeding north from that point to Leesville. It pointed out- also that underthe qüotéd instruction the respondent ■could not have recovered if the jury found that he had Voluntarily remained on the car after he saw it. was being negligently run. The court considered this erroneous, saying: “Though the plaintiff was negligent .in the respect stated, if, as evidence adduced indicated, the defendant’s employee was aware of such negligence in time to have avoided the injury by the use of reasonable care, and he failed to use such care, that failure might be found to be the sole proximate cause of the injury, and plaintiff’s negligence be deemed a remote cause. Chunn v. City & Suburban Ry., 207 U. S. 302 .... The plaintiff’s right to recover was not barred' if his negligence was only a remote, cause of his injury, and Merchant’s negligence was the sole proximate cause of it.” This language suggests that the circuit court of appeals thought this case to be governed by the doctrine of the last. clear chance. That doctrine, rightly applied in the Chunn case, amounts to no more than this, that a negligent defendant will be held liable to a negligent plaintiff if the defendant, aware of the plaintiff’s peril or unaware of it only through carelessness, had in fact a later opportunity than the plaintiff to avert an accident. Grand Trunk Ry. v. Ives, 144 U. S. 408, 428; Inland and Seaboard Coasting Co. v. Tolson, 139 U. S. 551, 558. In the cases applying the rule the parties have been engaged in independent courses of negligent conduct. The classic instance is that in which the plaintiff had improvidently left his animal tied in a roadway where it was injured by" }, { "docid": "7929612", "title": "", "text": "be obliviousness to it. With this I cannot agree, nor do I think that the authorities cited by the majority support their conclusions. Inescapable peril, or obliviousness to peril, may waken into action this doctrine, but I cannot agree to limit its scope to the presence of one of these conditions. It is much broader. For my position, I cite the following cases: Inland & Seaboard Coasting Co. v. Tolson, 139 U.S. 551, 11 S.Ct. 653, 35 L.Ed. 270; Grand Trunk Railway Co. v. Ives, 144 U.S. 408, 12 S.Ct. 679, 36 L.Ed. 485; Chunn v. City & Suburban Railway of Washington, 207 U.S. 302, 28 S.Ct. 63, 52 L.Ed. 219; Hawley v. Columbia Ry. Co., 25 App.D.C. 1; Capital Traction Co. v. Divver, 33 App.D.C. 332; Baltimore & O. R. Co. v. Griffith, 34 App.D.C. 469; Washington Railway & Elec. Co. v. Cullember, 39 App.D.C. 316; Terminal Taxicab Co. v. Blum, 54 App.D.C. 357, 298 F. 679; Kelly Furniture Co. v. Washington Ry. & Elec. Co., 64 App.D.C. 215, 76 F.2d 985; Boaze v. Windridge & Handy, 70 App.D.C. 24, 102 F.2d 628; Porto Rico Ry. Light & Power Co. v. Miranda, 1 Cir., 62 F.2d 479; Arnold v. Owens, 4 Cir., 78 F.2d 495; Linde Air Products Co. v. Cameron, 4 Cir., 82 F-2d 22; Kansas City Southern Ry. Co. v. Ellzey, 275 U.S. 236, 48 S.Ct. 80, 72 L.Ed. 259 (which re-states the doctrine, but holds it inapplicable therein). I am of the opinion that the prayer was not defective in the particulars stated; that refusal to instruct on this issue was prejudicial error, and the judgment should be reversed and the case remanded for new trial." }, { "docid": "22057421", "title": "", "text": "jury had believed respondent’s evidence that this last car was astride the switch when it was thrown, it would have been authorized, under the court’s charge, to find for the respondent. But about 75 feet east of this switch, at a point where the south rail of the siding track intersected the north rail of the main track, there was a frog. There was testimony that this frog operated with a spring mechanism, and that if the spring failed to work when the wheels passed over it, the cars might be derailed. Some other evidence tended to show that, at the time the derailment occurred, splinters and planks were thrown into the air near the frog. Other evidence tended to show that planks and splinters were found on the track. Some testimony showed that they were close to the switch, and some that they were close to the frog. There was evidence that the frog and switch had been in good condi tion before the derailment and after the derailment. The cars had been operated and the tracks had been used previously, so far as the evidence showed, without any similar mishap. In San Juan Light Co. v. Requena, 224 U. S. 89, 98-99, this Court said: “when a thing which causes injury, without fault of the injured person, is shown to be under the exclusive control of the defendant, and the injury is such as in the ordinary course of things does not occur if the one having such control uses proper care, it affords reasonable evidence, in the absence of an explanation, that the injury arose from the defendant’s want of care.” Both prior to and after that case was decided, this Court has acted upon this rule in varying types of cases. Transportation Co. v. Downer, 11 Wall. 129; Inland & Seaboard Coasting Co. v. Tolson, 139 U. S. 551, 555; Gleeson v. Virginia M. R. R., 140 U. S. 435; Sweeney v. Erving, 228 U. S. 233, 240. See also Southern Ry. v. Bennett, 233 U. S. 80; Foltis, Inc. v. City of New York, 287" }, { "docid": "22239998", "title": "", "text": "which infested the borders upon each side. A platform which would be wide enough for a child to walk in safety from the base of the Washington Monument to the steps of the Capitol, if elevated to extend from the summit of one to the dome of the other, would imperil the passage of the man of steadiest nerve. Nor Was the plaintiff necessarily wanting .in due care by taking her place between the tracks. It was the usual place from which entrance to the Washington car was made. It was safe enough under ordinary circumstances. It was. made unsafe only by reason of the defendant’s negligent act in running another car rapidly by. The plaintiff had the right to assume that the defendant would not commit such an act of negligence, and that when it stopped one car and thereby invited her to enter it, it would not run another rapidly by the place of her entrance and put her in peril. We think that it cannot be said, as a matter of law, that the plaintiff was guilty, of contributory negligence. That issue with the others in the case should have been submitted to the jury with appropriate instructions. Nor is it clear that, even if the plaintiff.was not free from fault, her negligence was the proximate cause of ■ the injury. If she- carelessly placed herself in, a position exposed to danger, and it was discovered by the defendant in time to have avoided the injury by the use of reasonable care on its'par.t, and the defendant failed to use such care, that failure might be found to be the sole' cause of the resulting injury. Inland & Seaboard Coasting Co. v. Tolson, 139 U. S. 551; Grand Trunk Railway Co. v. Ives, 144 U. S. 408, 429; Washington & Georgetown Railroad v. Harmon, 147 U. S. 571, 583; Tuff v. Warman, 5 C. B. N. S. 573; Radley v. London & North Western Railway Co., 1 App. Cas. 754; Thompson on Negligence (2d ed.), §§238, 239; Pollock on Torts (6th ed.), pp. 441 to 447 inclusive." }, { "docid": "12953731", "title": "", "text": "his contact with the door or side of the shaft when the car is moving. The case in hand falls under an exception to the general rule because the ordinance of Kansas City imposed the duty to employ an operator upon the defendant and made her failure to do so evidence of actionable negligence for the consideration of the jury (Hayes v. Michigan Central R. Co., 111 U. S. 228, 236, 241, 4 Sup. Ct. 369, 28 L. Ed. 410; Grand Trunk Ry. Co. v. Ives, 144 U. S. 408, 419, 12 Sup. Ct. 679. 36 L. Ed. 485; Northern Pacific R. Co. v. Sullivan, 3 C. C. A. 506, 514, 517, 53 Fed. 219, 221, 224) and because the plaintiff was too young to appreciate the risk she ran and the law in the absence of the ordinance charged the defendant with the duty to exercise reasonable care to protect such a child from any obvious danger to which the defendant exposed her. In Railroad Co. v. Stout, 17 Wall. 657, 21 L. Ed. 745, a child six years of age who lived three-quarters of a mile distant from a railroad turntable was injured while operating it with two other boys, 9 and 10 years of age, without right or license, and the Supreme Court sustained a judgment against the company on the ground that it owed to these children the duty to use reasonable care to fasten or otherwise guard an article so attractive to children in such a way that they might not operate it and injure themselves thereby. To the same effect is Keffe v. Milwaukee & St. Paul, Ry. Co., 21 Minn. 207, 212, 18 Am. Rep. 393, where the Supreme Court of Minnesota, speaking of the railroad company, said: “When it sets before young children a temptation which it has reason to believe will lead them into danger it must use ordinary care to protect them from harm.” An automatic elevator is not a less enticing plaything and a landlord who furnishes the former for the use of a tenant and his family owes" }, { "docid": "23131963", "title": "", "text": "criticism did not controvert that proposition but merely expressed in an unteehni-eal way that if the death was due to a defective instrumentality and no explanation was given, the plaintiff had sustained the burden. The instruction is criticized further as if the judge had said res ipsa loquitur — which would have been right or wrong according to the res referred to. The judge did not say that the fall of the engine was enougn, but that proof of a defect in appliances which the company was bound to use eare to keep in order, and which usually would be in order if due care was taken, was prima facie evidence of neglect. The instruction concerned conditions likely to have existed for some time (defective ash pan or damper on the engine and rotten wood likely to take fire), about whieh the company had better means of information than the plaintiff, and concerning whieh it offered precise evidence, which, however, did not satisfy the jury.” See, also, Western Transportation Company v. Downer, 11 Wall. 129, 20 L. Ed. 160; Inland & Seaboard Coasting Co. v. Tolson, 139 U. S. 551, 11 S. Ct. 653, 35 L. Ed. 270; Patton v. Texas & Pacific R. Co., 179 U. S. 658, 663, 21 S. Ct. 275, 45 L. Ed. 361; Kansas City, F. S. & M. R. Co. v. Stoner, 49 F. 209 (C. C. A. 8); Minneapolis Street Railway Co. v. Odegaard, 182 F. 56 (C. C. A. 8); North Jersey St. Ry. Co. v. Purdy, 142 F. 955 (C. C. A. 3); Lee Line Steamers v. Robinson, 218 F. 559, L. R. A. 1916C, 358 (C. C. A. 6). The maxim has .been applied in two eases growing out of accidents on escalators. Petrie v. Kaufmann & Baer Co., 291 Pa. 211, 139 A. 878; Hesemann v. May Dept. Stores Co., 225 Mo. App. 584, 39 S.W.(2d) 797. In two other cases growing out of escalator accidents, the maxim, however,, has not been applied. Fuller v. Wurzburg Dry Goods Co., 192 Mich. 447, 158 N. W. 1026; Conway v. Boston" }, { "docid": "22538050", "title": "", "text": "so enlarged upon this doctrine that we are confronted with such a situation as this: A poor fellow working in a yard, intent upon his work, and somebody kicks a car on top of him, and the courts, notwithstanding he has no knowledge of it, if he is struck, hold that he has no right to recover. It may be that he was negligent, but again I say the comparative negligence doctrine should be applied.” Hearings, Note 12, supra, p. 78. H. R. 4988, 76th Cong., 1st Sess. House Report, Note 14, supra, p. 6. Senate Hearings, Note 12, supra, p. 61. Senate Hearings, Note 12, supra, 14, 17, 76, 81. Supra, Note 20. Railroad Co. v. Jones, 95 U. S. 439, 442; Texas & Pacific Ry. Co. v. Barrett, 166 U. S. 617, 619; Grand Trunk Ry. Co. v. Ives, 144 U. S. 408. Sen. Report, supra, Note 21, p. 4. Washington & Georgetown R. Co. v. McDade, 135 U. S. 554, 572. See also Kane v. Northern Central Ry. Co., 128 U. S. 91, 95, 96; Hough v. Railway Co., supra, 225; Jacob v. New York City, 315 U. S. 752, 757. It appears to be the clear Congressional intent that, to the maximum extent proper, questions in actions arising under the Act should be left to the jury: “At the beginning this defense [assumption of risk] was deemed to be at most a jury question. But repeated holdings have encroached more and more upon the right of the employee and various new doctrines or amplifications of previous principles have tended constantly to treat this defense as one to be determined by the courts as ‘matter of law’ — taking it away from the jury; and the courts have decided now it is a question of law.” House Report, supra, Note 14, p. 1. Cf. Delaware, L. & W. R. Co. v. Koske, 279 U. S. 7, 11; Toledo, St. L. & W. R. Co. v. Allen, 276 U. S. 165, 170. Mr. Justice Frankfurter, concurring: The phrase “assumption of risk” is an excellent illustration of the extent" } ]

[ { "docid": "2952549", "title": "", "text": "is faced with a guidelines question that may become an issue on appeal, the court can indicate whether the advice that results from its resolution of that question makes a difference in the sentence. For example, in this case if the district court had stated that regardless of how the guidelines relevant conduct issue was resolved, it would consider the prior assault under § 3553(a)(1) & (2)(C) and on that basis would still impose the same 96-month sentence, we would not have to send this ease back for more sentence proceedings. The sentencing court might have stated that its ruling on the relevant conduct issue resulted in a guidelines range of 77 to 96 months, but that if it were wrong about that and the range was only 27 to 33 months, the sentence would still have been 96 months based on the § 3553(a) factors. On that basis we could and would have affirmed. This suggestion is not some radical new idea born of frustration churned up by the Booker decision. The Supreme Court and this Court have long recognized that it is not necessary to decide guidelines issues or remand cases for new sentence proceedings where the guidelines error, if any, did not affect the sentence. See Williams v. United States, 503 U.S. 193, 203, 112 S.Ct. 1112, 1120-21, 117 L.Ed.2d 341 (1992) (“[OJnce the court of appeals has decided that the district court misapplied the Guidelines, a remand is appropriate unless the reviewing court concludes, on the record as a whole, that the error was harmless, i.e., that the error did not affect the district court’s selection of the sentence imposed.”); United States v. Blas, 360 F.3d 1268, 1272-73 (11th Cir.2004) (declining to decide whether the district court misapplied the guidelines where the district court would have reached the same sentence regardless of any error); United States v. Hersh, 297 F.3d 1233, 1250-54 (11th Cir.2002) (holding that the sentence was “without error and need not be remanded for resentencing” even though the district court erred in applying the grouping guidelines because the district court had stated that" } ]

[ { "docid": "23528766", "title": "", "text": "is greater than necessary to comply with the statutory purposes of sentencing set forth in 18 U.S.C. § 3553(a)(2). As we understand Deegan’s brief on appeal, she argues that the district court committed both procedural and substantive errors when imposing sentence. Deegan raised no procedural objection in the district court, so we consider her claims of procedural error under the plain-error standard. United States v. Gray, 533 F.3d 942, 945 (8th Cir.2008) which requires as conditions for relief that Deegan show an obvious error that affected her substantial rights and seriously affected the fairness, integrity, or reputation of judi cial proceedings. United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). We review the substantive reasonableness of the sentence under a deferential abuse-of-discretion standard. Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 597, 169 L.Ed.2d 445 (2007). Maj. op. at 629. Further, the majority reviews the following under the plain error standard: (a) the district court’s failure to meaningfully discuss the § 3553(a) factors, id. at 629-30; (b) treating the advisory guidelines as mandatory, id. at 631; (c) procedural error by applying the 2007 Guidelines to the instant offense, id. at 632; and (d) applying the second-degree murder guidelines to “this type of crime.” Id. at 632-33. Comparing the sentencing transcript with Ms. Deegan’s brief establishes that these errors were asserted in the district court and raised on appeal. At sentencing, defense counsel, in responding to the prosecutor’s recommendation for a guideline sentence of 121 months, asserted that: (a) the guideline sentence was far greater than necessary (Sent. Tr. 46-47); (b) such a sentence was not warranted under the § 3553(a) factors (Sent. Tr. 46-52); (c) a guideline sentence would result in a sentencing disparity as compared to a neonaticide sentence imposed in a North Dakota state court (Sent. Tr. 50-53); and (d) a variance, a non-guideline sentence, should be imposed after proper consideration of the § 3553(a) factors (Sent. Tr. 55-56, 59). The district court clearly recognized the request of defense counsel when the court said, “The request in this case is" }, { "docid": "8802819", "title": "", "text": "her from escaping, Victor physically restrained her within the guidelines’ meaning. See Jones, 32 F.3d at 1519. The fact that Victor was not actually armed with a gun at the time is immaterial — he intended to and did make the lobby employee believe he had one so that she was forced to comply. And, although Victor argues he did not move the employee for a significant distance, § 2B3.1(b)(4)(B) contains no requirement that the victim be moved at all. See Whatley, 719 F.3d at 1223, 2013 WL 2382278, at *16 (explaining that the principal distinction between U.S.S.G. § 2B3.1(b)(4)(A)’s abduction enhancement and (b)(4)(B)’s physical-restraint enhancement is the movement of a victim to a “different location”). For these reasons, the district court did not err in applying the enhancement. III. Victor next challenges the substantive reasonableness of his sentence. He argues that he was desperate for money at the time, had no criminal record, and expressed remorse for his offense, all of which weighed in favor of a sentence well below his guidelines range. We 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," }, { "docid": "14222200", "title": "", "text": "Compare § 841(b)(1)(A)(iii) (2006), with § 841(b)(1)(A)(iii) (2010). The FSA is silent as to whether it applies to all criminal sentencings taking place after its enactment or, conversely, to only criminal conduct occurring after its enactment. The district court sentenced Vera Rojas in September 2010 for conspiring with intent to distribute 71.8 grams of crack cocaine, among other offenses. If the court had sentenced Vera Rojas under the FSA, her offenses would have been insufficient to trigger the ten-year mandatory minimum sentencing provision. For the following reasons, we conclude that Vera Rojas’s sentence is subject to the FSA’s five-year mandatory minimum provision. 2. Case Law Vera Rojas argues that this Court’s statement in United States v. Gomes, 621 F.3d 1343, 1346 (11th Cir.2010) (per curiam) — “because the FSA took effect in August 2010, after appellant committed his crimes, [the general savings statute] bars the Act from affecting his punishment”— was merely dicta and is not controlling precedent. We need not consider this argument because, in any event, Gomes does not apply here. The record reveals that Gomes was indicted in July 2009 and sentenced in March 2010 — nearly five months before the FSA was signed into law. The issue before the Court therefore was whether the FSA applied retroactively to lighten the defendant’s existing sentence. This appeal presents a different issue. Vera Rojas’s circumstances require that we determine whether the FSA applies to a defendant who had not been sentenced when the law was enacted. The government cites published opinions from the Sixth, Seventh, Eighth, and Tenth Circuits, ostensibly in support of its proposition that “[e]very circuit court to have addressed the issue has concluded that the FSA may not be applied retroactively.” Like Gomes, each of those cases involved a defendant who had been charged, convicted, and sentenced before the effective date of the FSA; those defendants were arguing for the first time on appeal that the FSA should apply retroactively to a previously imposed sentence. See United States v. Carradine, 621 F.3d 575, 577-78, 580 (6th Cir.2010) (defendant indicted in July 2005 and sentenced in January" }, { "docid": "5198320", "title": "", "text": "132 months imprisonment based on Gran-don’s “history and characteristics ..., the nature and circumstances of the offense, his dangerousness to the community, [and] the need for punishment and deterrence.” The district court then sentenced Grandon to 132 months imprisonment. Grandon appeals his sentence. II. DISCUSSION Grandon argues the district court erred in (1) departing upward based on underrepresented criminal history, and (2) alternatively varying upward. “We review sentences under a deferential abuse of discretion standard, reviewing the district court’s factual findings for clear error and its application of the guidelines de novo.” United States v. Spotted Elk, 632 F.3d 455, 458 (8th Cir.2011). 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). “If the district court did not pro-eedurally err, we ‘then consider the substantive reasonableness of the sentence imposed under an abuse-of-discretion standard.’” United States v. Franklin, 695 F.3d 753, 756-57 (8th Cir.2012) (quoting Gall, 552 U.S. at 51, 128 S.Ct. 586). A. Variance The district court based the variance on the sentencing factors contained in 18 U.S.C. § 3553(a), explaining a 132-month sentence was “sufficient but not' greater than necessary to achieve the goals of sentencing.” Specifically, the district court considered the “nature and circumstances of the offense,” id. § 3553(a)(1), inferring from Grandon’s use of a friendship and knowledge of the friend’s home security entry code “that [Grandon] was the mastermind of this burglary and the theft of these firearms.” The district court also discussed Grandon’s “history and characteristics,” id., finding by a preponderance of the evidence that Grandon had engaged in the uncharged criminal conduct of illegally possessing a narcotic while in jail and of shooting Bell. In addition, the district court considered the need for Grandon’s sentence “to reflect the seriousness of [his] offense” and “promote respect for the law,” pointing to “the foreseeable consequences of this very serious crime” and its belief Grandon had not been truthful about his involvement in shooting Bell..-See id. § 3553(a)(2)(A). Finally, the district court determined the variance was appropriate" }, { "docid": "2181578", "title": "", "text": "and during his sentencing hearing is enough to preserve his attack on the procedural reasonableness of his sentence, regardless of whether he renewed his objec tion after the court imposed a different sentence. See United States v. Lopez-Avila, 665 F.3d 1216 (10th Cir.2011). But at sentencing Chavez argued that the district court should not impose a consecutive sentence, and here he raises a different argument: that the court did not sufficiently explain why it chose a consecutive sentence. The claim is therefore unpreserved. See United States v. Gantt, 679 F.3d 1240, 1247 (10th Cir.2012) (reviewing for plain error a procedural unreasonableness claim tied to a guideline sentence departure because “[although Defendant’s supplemental sentencing memorandum had argued against a departure, Defendant’s complaint on appeal is not that the court rejected his arguments but that the court did not adequately explain why it acted as it did”), cert, denied, — U.S. -, 133 S.Ct. 555, 184 L.Ed.2d 361 (2012). Accordingly, we review the procedural reasonableness claim for plain error and will only vacate the sentence if: (1) there is error; (2) that is plain; (3) that affects substantial rights, or in other words, affects the outcome of the proceeding; and (4) substantially affects the fairness, integrity, or public reputation of judicial proceedings. United States v. Ferrel, 603 F.3d 758, 763 (10th Cir.2010). We find no error here. A district court commits a procedural sentencing error by failing to consider sentencing factors enumerated in 18 U.S.C. § 3553(a) or by failing to offer an individualized assessment of how the factors apply in a particular criminal defendant’s case. See Gall v. United States, 552 U.S. 38, 50-51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). Section 3553(a) dictates, among other things, that the sentencing court consider such matters as the need for the sentence imposed to reflect the seriousness of the offense, to promote respect for the law, to provide just punishment, to afford adequate deterrence, and to protect the public from further crimes of the defendant. This same requirement applies to a district court’s determination of whether to impose a consecutive or concurrent sentence." }, { "docid": "23319313", "title": "", "text": "See Vallejo, 297 F.3d at 1168. Defendant Alalu has shown no error. J. Downward Departure and Downward Variance Defendant Alalu argues the district court should have granted his request for a downward departure on the basis that his offense level substantially overstated the seriousness of his offenses. He further argues the court abused its discretion by denying his request for a downward variance and that his sentence, albeit in the advisory guidelines range, is substantively unreasonable. We review our subject matter jurisdiction de novo. United States v. Winingear,. 422 F.3d 1241, 1245 (11th Cir.2005). We lack jurisdiction to review a district court’s discretionary refusal to grant a downward departure, unless the district court incorrectly believed it lacked the authority to depart from the guidelines range. United States v. Dudley, 463 F.3d 1221, 1228 (11th Cir.2006). We will assume the sentencing court properly understood its authority absent a record indication to the contrary. Id. Here, we lack jurisdiction to review the district court’s discretionary refusal to grant Alalu’s request for a downward departure, as the district court did not express a belief that it lacked authority to depart. Id. As to a downward variance request, a district court must impose a sentence that is reasonable. Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 597,169 L.Ed.2d 445 (2007). We review the reasonableness of a sentence under a deferential abuse-of-discretion standard. Id. at 41, 128 S.Ct. at 591. The party challenging the sentence bears the burden of establishing the sentence is unreasonable. United States v. Dean, 635 F.3d 1200, 1203-04 (11th Cir. 2011). We examine whether a sentence is substantively reasonable in light of the totality of the circumstances and the 18 U.S.C. § 3553(a) factors. Gall, 552 U.S. at 51, 128 S.Ct. at 597. The § 3553(a) factors to be considered by a sentencing court include, among others: (1) the nature and circumstances of the offense and the history and characteristics of the defendant; (2) the need for the sentence imposed to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment" }, { "docid": "22850269", "title": "", "text": "using an abuse-of-discretion standard, regardless of “whether [the sentence is] inside, just outside, or significantly outside the Guidelines range.” Gall v. United States, 552 U.S. 38, 41, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). “Our reasonableness review has procedural and substantive components.” United States v. Boulware, 604 F.3d 832, 837 (4th Cir.2010). First, we must determine whether the district court committed any 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, 552 U.S. at 51, 128 S.Ct. 586. Only if we determine that the district court has not committed procedural error do we proceed to assess “the substantive reasonableness of the sentence imposed under an abuse-of-discretion standard.” Id. Appellants argue that the district court committed procedural error because it offered no individualized rationale to justify the sentences it imposed. We are constrained to agree. Because we conclude that the sentences were procedurally unreasonable, we address only the procedural component in this case. A. Section 3553 contains an overarching provision instructing district courts to “impose a sentence sufficient, but not greater than necessary,” to accomplish the goals of sentencing, including “to reflect the seriousness of the offense,” “to promote respect for the law,” “to provide just punishment for the offense,” “to afford adequate deterrence to criminal conduct,” and “to protect the public from further crimes of the defendant.” Kimbrough v. United States, 552 U.S. 85, 101, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007) (quoting 18 U.S.C. § 3553(a)). The statute requires a sentencing court to consider numerous factors, such as the Guidelines sentencing range, “the nature and circumstances of the offense,” “the history and characteristics of the defendant,” “any pertinent policy statement” from the Sentencing Commission, and “the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct.” 18 U.S.C. § 3553(a); see Kimbrough, 552 U.S. at 101," }, { "docid": "22818043", "title": "", "text": "same under any standard of review because the district court committed no error, plain or otherwise, in imposing sentences mandated by statute. At the time that appellant committed the crimes, 21 U.S.C. § 841 provided that an individual who distributes or possesses with intent to distribute 50 grams or more of crack cocaine “shall be sentenced to a term of imprisonment which may not be less than 10 years.” 21 U.S.C. § 841 (b)(1)(A)(iii). “It is well-settled that a district court is not authorized to sentence a defendant below the statutory mandatory minimum unless the government files a substantial assistance motion pursuant to 18 U.S.C. § 3553(e) or the defendant falls within the safety-valve of 18 U.S.C. § 3553(f).” United States v. Castaing-Sosa, 530 F.3d 1358, 1360 (11th Cir.2008). A defendant qualifies for the safety-valve exception of § 3553(f) only if he “does not have more than 1 criminal history point.” 18 U.S.C. § 3553(f)(1). The Sentencing Guidelines are to be applied in an advisory fashion. United States v. Booker, 543 U.S. 220, 258-59, 125 S.Ct. 738, 764, 160 L.Ed.2d 621 (2005). However, Booker does not affect the mandatory nature of statutory minimum sentences. United States v. Ciszkowski, 492 F.3d 1264, 1270 (11th Cir.2007) (“Even after Booker, the district court is bound by the statutory mandatory mínimums.”). In Kimbrough, the Supreme Court held that district courts have authority to deviate from the 100:1 crack-to-powder ratio in fashioning an appropriate sentence under § 3553(a) factors. Kimbrough, 552 U.S. at 108, 128 S.Ct. at 574. The Court noted, however, that district courts remain “constrained by the mandatory mínimums” prescribed by Congress. Id.; accord Spears, 129 S.Ct. at 844 (district court’s determination that a mandatory minimum sentence was required “moot[ed] any further arguments for a reduced sentence”). Appellant references the FSA to support his argument that his 10-year mandatory minimum sentences, arising out of the flawed 100:1 crack-to-powder cocaine ratio, is unfair and conflicts with 18 U.S.C. § 3553(a). The FSA, signed into law on August 3, 2010, changes to the crack-to-powder ratio from 100:1 to about 18:1. See Pub.L.No 111-220, 124 Stat." }, { "docid": "10152249", "title": "", "text": "that does not affect substantial rights, and requires that it be disregarded. Errors are harmless when the government can show, beyond a reasonable doubt, that the error did not contribute to the defendant’s ultimate sentence. United States v. Mathenia, 409 F.3d 1289, 1291 (11th Cir. 2005). Here, that is the case. After the district court overruled Focia’s objections, calculated what it believed to be the appropriate guidelines range, and found a 51-month sentence to be reasonable after considering the § 3553(a) factors, the court stated; “The Court finds also that this ‘ 51-month sentence would have been the same regardless of how the guideline issues raised by both the defendant and the government had been resolved.” Where the district court states that it would haye imposed the same sentence regardless of any guideline-calculation error, any error is harmless if the sentence would be reasonable even if the district court’s guideline calculation was erroneous. United States v. Keene, 470 F.3d 1347, 1349 (11th Cir. 2006). The record here demonstrates that the alleged errors are harmless, in any case. If the district court had resolved all enhancement, issues in Focia’s favor, his advisory guidelines range would have been 15 to 21 months, instead of the 51-to-60-months range that the court applied. So we must ask whether the 51-month sentence the district court imposed is reasonable in light of an advisory range of 15 to 21 months. See id. at 1350 (noting that our review of the sentence imposed by a district court post-Booker is deferential, with the burden on the defendant to prove that his sentence is unreasonable in light of the record and § 3553(a)). We find that it is. At sentencing, the district court explicitly opined that a sentence of 51 months was “a reasonable one when considering the 3553(a) factors.” In support, the court expressly relied on (1) the nature and circumstances of the offense; (2) the history and chai’acteristics of Focia himself; (3) the need to reflect the seriousness of the offense to promote respect for the law and to provide just punishment for the offense; (4) the" }, { "docid": "14222199", "title": "", "text": "trigger mandatory minimum sentences. See United States v. Bell, 624 F.3d 803, 814 (7th Cir.2010). Further, the FSA provided the Sentencing Commission with the emergency authority to promulgate all necessary amendments to the Sentencing Guidelines within 90 days of the FSA’s August 3, 2010, enactment. FSA § 8, Pub.L. No. 111-220. Specifically, the Sentencing Commission was charged with “makfing] such conforming amendments to the Federal sentencing guidelines as the Commission determines necessary to achieve consistency with other guideline provisions and applicable law.” Id. The consequent amendments to the Sentencing Guidelines became effective no later than November 1, 2010. Under the FSA, a ten-year mandatory minimum applies to first-time trafficking offenses involving 280 grams or more of crack cocaine, while a five-year mandatory minimum applies to first-time trafficking offenses involving 28 grams or more of crack cocaine. 21 U.S.C. § 841(b)(1)(A)(iii), (b)(l)(B)(iii). Thus, the FSA amended the Anti-Drug Act of 1986 to lower the mandatory minimum sentence for first-time trafficking offenses involving between 50 and 280 grams of crack cocaine from ten years to five years. Compare § 841(b)(1)(A)(iii) (2006), with § 841(b)(1)(A)(iii) (2010). The FSA is silent as to whether it applies to all criminal sentencings taking place after its enactment or, conversely, to only criminal conduct occurring after its enactment. The district court sentenced Vera Rojas in September 2010 for conspiring with intent to distribute 71.8 grams of crack cocaine, among other offenses. If the court had sentenced Vera Rojas under the FSA, her offenses would have been insufficient to trigger the ten-year mandatory minimum sentencing provision. For the following reasons, we conclude that Vera Rojas’s sentence is subject to the FSA’s five-year mandatory minimum provision. 2. Case Law Vera Rojas argues that this Court’s statement in United States v. Gomes, 621 F.3d 1343, 1346 (11th Cir.2010) (per curiam) — “because the FSA took effect in August 2010, after appellant committed his crimes, [the general savings statute] bars the Act from affecting his punishment”— was merely dicta and is not controlling precedent. We need not consider this argument because, in any event, Gomes does not apply here. The record" }, { "docid": "22795671", "title": "", "text": "are adequate to support the enhancement. IV We next consider Treadwell’s argument that the district court procedurally erred and imposed a substantively unreasonable sentence under 18 U.S.C. § 3553(a). Under § 3553(a), a district court’s “overarching statutory charge” is to impose a sentence “sufficient, but not greater than necessary to reflect the seriousness of the offense, promote respect for the law, and provide for just punishment; to afford adequate deterrence; to protect the public; and to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment.” Carty, 520 F.3d at 991 (internal quotation marks deleted). In exercising its sentencing discretion, the district court must consider “the nature and circumstances of the offense and the history and characteristics of the defendant,” “the kinds of sentences available,” the applicable sentencing range under the Guidelines, “the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct,” and “the need to provide restitution to any victims of the offense.” 18 U.S.C. § 3553(a)(1), (2)(A)(3)-(7). On appeal, we review the ultimate sentence imposed under § 3553(a) for procedural error and “substantive reasonableness.” Carty, 520 F.3d at 993. It is procedural error for the district court to “fail to consider the 3553(a) factors” or “to choose a sentence based on clearly erroneous facts.” Id. “Substantive reasonableness” review is equivalent to review for abuse of discretion. Gall v. United States, 552 U.S. 38, 46, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). In determining substantive reasonableness, we consider the totality of the circumstances, and presume neither that a non-Guidelines sentence is unreasonable nor that a within-Guidelines sentence is reasonable. Carty, 520 F.3d at 993. Treadwell argues that the district court made five procedural or substantive errors in imposing his sentence under 18 U.S.C. § 3553(a): (1) ignoring or insufficiently explaining its reasons for rejecting Tread-well’s request for a variance on the basis of his personal history and characteristics; (2) creating an unwarranted sentencing disparity by imposing a sentence similar to or greater than the sentences of several high-profile white-collar criminals who were responsible for" }, { "docid": "22161116", "title": "", "text": "a result of the corrupt bribes to Swann. This amply satisfies any causal connection requirement in § 201.1(b)(2)(A). Accordingly, we find no reversible error in the district court’s calculations adding 22 levels under § 201.1(b)(2)(A) to Swann’s offense level. The district court alternatively stated that even if it used the bribe amount approach and not the net benefit approach, it would vary upward from the lower range (51 to 63 months) urged by Swann based on “other factors in 18 USC Section 3553 that I am charged with the responsibility of weighing.” Therefore, we also conclude any error in the guidelines calculations as to Swann was harmless. See United States v. Barner, 572 F.3d 1239, 1248 (11th Cir.2009) (“Where a district judge clearly states that he would impose the same sentence, even if he erred in calculating the guidelines, then any error in the calculation is harmless.”); United States v. Dean, 517 F.3d 1224, 1232 (11th Cir.2008), aff'd, Dean v. United States, — U.S.-, 129 S.Ct. 1849, 173 L.Ed.2d 785 (2009); United States v. Keene, 470 F.3d 1347, 1348-49 (11th Cir. 2006). D. Substantive Reasonableness Swann also argues his 102-month sentence was substantively unreasonable because the district court impermissibly considered that (1) Swann showed no remorse, and (2) because he was a public official, Swann was more culpable than the contractors and, without his conduct, the bribe-payors could not have committed the crime. This Court considers the substantive reasonableness of the sentence imposed by inquiring whether the sentence is supported by the 18 U.S.C. § 3553(a) factors. Gall v. United States, 552 U.S. 38, 56, 128 S.Ct. 586, 600, 169 L.Ed.2d 445 (2007). The district court need not discuss each of the § 3553(a) factors. United States v. Talley, 431 F.3d 784, 786 (11th Cir.2005) (“[N]othing in Booker or elsewhere requires the district court to state on the record that it has explicitly considered each of the section 3553(a) factors or to discuss each of the section 3553(a) factors.”) (quotation marks omitted). The district court’s acknowledgment that it considered the defendant’s arguments and the factors in § 3553(a) is sufficient." }, { "docid": "22818041", "title": "", "text": "PER CURIAM: Appellant Gregory Anthony Gomes pled guilty to all counts of a three-count indictment — Count One, conspiracy to possess with intent to distribute fifty grams or more of cocaine base (“crack”) ; Count Two, distribution of five or more grams of crack ; Count Three, distribution of fifth grams or more of crack — and the district court sentenced him to concurrent prison sentences of 120 months, the minimum prison terms allowed by law. He appeals his sentences, arguing that they are greater than necessary to achieve the goals of sentencing set out in 18 U.S.C. § 3553(a). Specifically, he contends that the disparity between sentences for crack cocaine and powder cocaine, resulting in his receiving 10-year mandatory minimum sentences, is both unreasonable and unwarranted. In support of his argument, he cites two Supreme Court decisions that permit district courts to reject the disparity created by the Sentencing Guidelines’ 100:1 crack-to-powder cocaine ratio. See Spears v. United States, — U.S. -, 129 S.Ct. 840, 844, 172 L.Ed.2d 596 (2009); Kimbrough v. United States, 552 U.S. 85, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007). He notes additionally that the Sentencing Commission’s policy is to promote sentencing uniformity and that recent legislative proposals, including the Fair Sentencing Act (“FSA”), Pub.L.No. 111-220, 124 Stat. 2372 (2010), seek to eliminate the sentencing disparities created by the 100:1 crack-to-powder cocaine ratio. Normally, this court reviews the reasonableness of a sentence under a “deferential abuse-of-discretion standard.” Gall v. United States, 552 U.S. 38, 41, 128 S.Ct. 586, 591, 169 L.Ed.2d 445 (2007). However, this case concerns the district court’s authority to impose a sentence below the statutory minimum, thus subjecting the sentence to review de novo. See United States v. Alexander, 609 F.3d 1250, 1253 (11th Cir.2010) (“We consider de novo ... the application of law to sentencing issues.”). The government notes that appellant may have failed to sufficiently preserve his objection to the sentences he received, so we would review the sentence for plain error. United States v. Raad, 406 F.3d 1322, 1323 (11th Cir.2005). However, the analysis in this case remains the" }, { "docid": "22287072", "title": "", "text": "error, such as “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 v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 597, 169 L.Ed.2d 445 (2007). After we determine that the district court’s sentencing decision is procedurally sound, we then review the substantive reasonableness of the sentence for abuse of discretion. Id. Our reasonableness review is deferential, requiring the court to determine “whether the sentence imposed by the district court fails to achieve the purposes of sentencing as stated in section 3553(a).” United States v. Talley, 431 F.3d 784, 788 (11th Cir.2005). The burden is on the party challenging the sentence to show that the sentence was unreasonable in light of the record and the § 3553(a) factors. Id. Pursuant to § 3553(a), the sentencing court shall impose a sentence sufficient, but not greater than necessary, to reflect the seriousness of the offense, promote respect for the law, provide just punishment for the offense, deter criminal conduct, protect the public from future crimes of the defendant, and provide the defendant with needed educational or vocational training. 18 U.S.C. § 3553(a)(2). The sentencing court should also consider the following factors in determining a particular sentence: (1) the nature and circumstances of the offense and the history and characteristics of the defendant; (2) the kinds of sentences available; (3) the guideline range and the pertinent policy statements of the Sentencing Commission; (4) the need to avoid unwarranted sentencing disparities, and (5) the need to provide restitution to victims. Id. at (a)(1), (a)(3)-(7). “The weight to be accorded any given § 3553(a) factor is a matter committed to the sound discretion of the district court, and we will not substitute our judgment in weighing the relevant factors.” United States v. Amedeo, 487 F.3d 823, 832 (11th Cir.2007) (alterations and internal quotation marks omitted). Langston does not assert that the district court committed any procedural error in his sentencing. Rather, he contends that the district court’s imposition of his sentence was substantively unreasonable. Specifically, he argues" }, { "docid": "14222196", "title": "", "text": "PER CURIAM: We sua sponte modify our previous opinion in this appeal to reflect recent developments in the law of the First and Seventh Circuits. See United States v. Fisher, 635 F.3d 336, 340 (7th Cir.2011); United States v. Douglas, 644 F.3d 39, 2011 WL 2120163 (1st Cir.2011). The issue in this appeal is whether the Fair Sentencing Act of 2010 (“FSA”), Pub.L. No. 111-220, 124 Stat. 2372 (2010), applies to defendants who committed crack cocaine offenses before August 3, 2010, the date of its enactment, but who are sentenced thereafter. We conclude that it does. In May 2010, Carmelina Vera Rojas pleaded guilty to one count of conspiring to possess with the intent to distribute 50 grams or more of cocaine base, in violation of 21 U.S.C. §§ 846 and 841(a)(1), and two counts of distributing 5 grams or more of cocaine base, in violation of § 841(a)(1). Her sentencing was scheduled for August 3, 2010, which as it so happened, was the date on which President Obama signed the FSA into law. The district court granted the parties a continuance to determine whether Vera Rojas should be sentenced under the FSA. After considering the parties’ arguments, the district court concluded that the FSA should not apply to Vera Rojas’s offenses; in September 2010, the court sentenced Vera Rojas to ten years’ imprisonment. On appeal, Vera Rojas argues that the district court erred in refusing to apply the FSA to her sentence. Because she had not yet been sentenced when the FSA was enacted, Vera Rojas believes that she should benefit from the FSA’s provision raising the quantity of crack cocaine required to trigger a ten-year mandatory minimum sentence. Further, Vera Rojas contends that the FSA falls within recognized exceptions to the general savings statute, 1 U.S.C. § 109. Relying in large part on the general savings statute, the government contends that Congress’s omission of an express retroactivity provision requires that the FSA be applied only to criminal conduct occurring after its August 3, 2010, enactment. We conclude that the FSA applies to defendants like Vera Rojas who had" }, { "docid": "22140217", "title": "", "text": "Anthony Williams entered a plea of guilty to a superseding Information charging him with conspiracy to distribute and possess with intent to distribute five grams or more of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), and 846. Williams’ criminal conduct took place between August of 2007 and January of 2008. In his plea agreement, Williams stipulated that “the offense and relevant conduct involved between 5 and 20 grams of cocaine base.” (A.42.) Hence, Williams was also subject to the mandatory minimum prison term. On March 11, 2010, Williams was sentenced to the five-year mandatory minimum sentence. Responding to Williams’ request for a downward departure based on the disparity in treatment between crack and powder cocaine offenders, the District Court, after noting that the “issue has been taken up by Congress,” declined to grant a downward departure. (A.93.) Both Reevey and Williams appealed their sentences, arguing that the District Court erred in refusing to impose a sentence below the statutory mandatory prison term of five years. The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have jurisdiction under 18 U.S.C. § 3742(a). II. Ordinarily, district court sentences are reviewed under a “deferential abuse-of-discretion standard.” Gall v. United States, 552 U.S. 38, 41, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). Where, however, the challenge to the sentence concerns the interpretation of a statute, we exercise plenary review. See United States v. Soto, 539 F.3d 191, 194 (3d Cir. 2008). Reevey argues on appeal that the District Court failed to adequately consider the 18 U.S.C. § 3553(a) factors when imposing the mandatory minimum sentence. Williams claims on appeal that his sentence was unreasonable because the District Court did not recognize the “scientific and constitutional flaws” in the crack cocaine sentencing guidelines, and “[i]n the event that the [FSA is passed] during the pendency of this appeal, the sentence that was imposed will be an illegal sentence.” (Williams’ Br. at 18.) Appellants’ arguments presuppose the existence of discretionary authority to impose a prison term of less than five years in these cases. As the government notes, however, statutory" }, { "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": "22068094", "title": "", "text": "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 procedural error such as failure to calculate the Guidelines range or failure to consider the § 3553(a) factors. As to substantive reasonableness, we consider the totality of the circumstances, including the extent of any deviation from the Guidelines range, while affording “due deference to the district court’s decision that the § 3553(a) factors, on a whole, justify the extent of the variance.” United States v. Diaz, 637 F.3d 592, 603 (5th Cir.2011). The factors a court shall consider in devising an appropriate sentence include: (1) the nature and circumstances of the offense and the history and characteristics of the defendant; (2) the need for the sentence imposed— (A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; (B) to afford adequate deterrence to criminal conduct; (C) to protect the public from further crimes of the defendant; and (D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner[.] 18 U.S.C. § 3553(a)(l)-(2)." }, { "docid": "22818042", "title": "", "text": "552 U.S. 85, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007). He notes additionally that the Sentencing Commission’s policy is to promote sentencing uniformity and that recent legislative proposals, including the Fair Sentencing Act (“FSA”), Pub.L.No. 111-220, 124 Stat. 2372 (2010), seek to eliminate the sentencing disparities created by the 100:1 crack-to-powder cocaine ratio. Normally, this court reviews the reasonableness of a sentence under a “deferential abuse-of-discretion standard.” Gall v. United States, 552 U.S. 38, 41, 128 S.Ct. 586, 591, 169 L.Ed.2d 445 (2007). However, this case concerns the district court’s authority to impose a sentence below the statutory minimum, thus subjecting the sentence to review de novo. See United States v. Alexander, 609 F.3d 1250, 1253 (11th Cir.2010) (“We consider de novo ... the application of law to sentencing issues.”). The government notes that appellant may have failed to sufficiently preserve his objection to the sentences he received, so we would review the sentence for plain error. United States v. Raad, 406 F.3d 1322, 1323 (11th Cir.2005). However, the analysis in this case remains the same under any standard of review because the district court committed no error, plain or otherwise, in imposing sentences mandated by statute. At the time that appellant committed the crimes, 21 U.S.C. § 841 provided that an individual who distributes or possesses with intent to distribute 50 grams or more of crack cocaine “shall be sentenced to a term of imprisonment which may not be less than 10 years.” 21 U.S.C. § 841 (b)(1)(A)(iii). “It is well-settled that a district court is not authorized to sentence a defendant below the statutory mandatory minimum unless the government files a substantial assistance motion pursuant to 18 U.S.C. § 3553(e) or the defendant falls within the safety-valve of 18 U.S.C. § 3553(f).” United States v. Castaing-Sosa, 530 F.3d 1358, 1360 (11th Cir.2008). A defendant qualifies for the safety-valve exception of § 3553(f) only if he “does not have more than 1 criminal history point.” 18 U.S.C. § 3553(f)(1). The Sentencing Guidelines are to be applied in an advisory fashion. United States v. Booker, 543 U.S. 220, 258-59, 125" }, { "docid": "23319314", "title": "", "text": "court did not express a belief that it lacked authority to depart. Id. As to a downward variance request, a district court must impose a sentence that is reasonable. Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 597,169 L.Ed.2d 445 (2007). We review the reasonableness of a sentence under a deferential abuse-of-discretion standard. Id. at 41, 128 S.Ct. at 591. The party challenging the sentence bears the burden of establishing the sentence is unreasonable. United States v. Dean, 635 F.3d 1200, 1203-04 (11th Cir. 2011). We examine whether a sentence is substantively reasonable in light of the totality of the circumstances and the 18 U.S.C. § 3553(a) factors. Gall, 552 U.S. at 51, 128 S.Ct. at 597. The § 3553(a) factors to be considered by a sentencing court include, among others: (1) the nature and circumstances of the offense and the history and characteristics of the defendant; (2) the need for the sentence imposed to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; (3) the need to protect the public from further crimes of the defendant; and (4) the applicable guideline range. 18 U.S.C. § 3553(a). A sentencing court must also consider “the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct.” 18 U.S.C. § 3553(a)(6). A sentence is substantively unreasonable if it “does not achieve the purposes of sentencing stated in § 3553(a).” Pugh, 515 F.3d at 1191 (quotations omitted). In addition, a sentence may be substantively unreasonable if a district court unjustifiably relied on any one § 3553(a) factor, failed to consider pertinent § 3553(a) fac-tprs, selected the sentence arbitrarily, or based the sentence on impermissible factors. Id. at 1191-92. Although we do not automatically presume a within-guidelines sentence is reasonable, we ordinarily expect such a sentence to be -reasonable. United States v. Hunt, 526 F.3d 739, 746 (11th Cir.2008). The for the variance issue, Alalu has failed to meet his burden of establishing that a downward variance was warranted and that his" } ]

[ { "docid": "8981365", "title": "", "text": "grant to Consolidated Nine, the Commission stated why it favored Mid-Florida over the proposed joint operation by Consolidated Nine as follows: A joint interim operation has serious drawbacks. First, it requires a substantial investment in new facilities. Secondly, it would bring together a new management group consisting mainly of adversary parties. This is an inherently undesirable situation. Joint operation by conflicting parties to a hearing is hardly conducive to satisfactory long-range planning, leaves responsibility in doubt, and does not provide a sound basis for, or incentive to, special efforts to serve the community’s needs. Our experience with joint interim operations indicates that this arrangement may serve to delay the outcome of the comparative hearing, and that it provides poorer management than station operation under the control of one party. An interim authorization is primarily useful when there is no existing service, or an existing licensee has been disqualified. Consolidated Nine, Inc., 7 F.C.C.2d 801, 805 (1967). Comint and Consolidated Nine both appeal. Comint claims that if it is subject to rule 1.592(b) requiring that its interim operation be open to all applicants, then the Commission abused its discretion by not applying the same rule to Mid-Florida. Consolidated Nine urges that it was an abuse of discretion for the Commission to permit one of several competing applicants for permanent authority to operate a channel pending an Ashbacker hearing and that this action was contrary to our holding in Community Broadcasting Co. v. FCC, 107 U.S.App.D.C. 95; 274 F.2d 753 (1960). II Grants of interim broadcast authority, while not frequent, are not novel matters for review in this court. The requirement of Ashbacker Radio Co. v. FCC, 326 U.S. 327, 66 S.Ct. 148 (1945), that mutually exclusive broadcast applications be accorded comparative hearings created a practical problem of whether there was any way to provide for operation of a station pending the comparative hearing. In Peoples Broadcasting Co. v. United States, 93 U.S.App.D.C. 78, 209 F.2d 286 (1953), this court held that interim grants of authority may be made without necessarily violating the parties’ Ash-backer rights. In Peoples Broadcasting, the Commission permitted" } ]

[ { "docid": "8981388", "title": "", "text": "facilities or authorization in question pending the Commission’s decision after hearing. . Act of September 13, 1960, Pub.L. 86-752, § 4(a), 74 Stat. 889. . 47 U.S.C. § 309(e), (f) (1964); Folkways Broadcasting Co. v. FCC, 126 U.S. App.D.C. 123, 379 F.2d 447, 448 n. 1 (1967). Section 309(f) permits a 90-day emergency operation, renewable once, in “extraordinary circumstances requiring emergency operations in the public interest * * * [where] delay, in the institution of such emergency operations would seriously prejudice the public interest * * . In Community Broadcasting the fact that the interim operator was already operating a UIIF frequency in the vicinity was not considered significant. It was necessary to construct new facilities even for an interim operation. In Peoples Broadcasting Co. v. United States, 93 U.S.App.D.C. 78, 209 F.2d 286 (1953), the interim authority was construed as a continuation of existing services when the operator of another VHF frequency was merely authorized to change its frequency when the Commission removed its prior frequency and added a new one to the area in question. In Peoples Broadcasting, the prior operator had received a valid broadcasting license. . In Community Broadcasting Corp. v. FCC, 124 U.S.App.D.C. 230, 363 F.2d 717 (1966), and South Florida Television Corp. v. FCC, 121 U.S.App.D.C. 293, 349 F.2d 971 (1965), cert. denied, 382 U.S. 987, 86 S.Ct. 541, 15 L.Ed.2d 475 (1966), the remand proceedings revealed that of the prior applicants there was only one qualified applicant. In effect, therefore, the four-month licenses were “interim” grants made without full comparative hearings. However, we are aware of no challenge to these grants except as to the credit which the Commission gave for such operations in the later comparative hearings, Community Broadcasting Corp. v. FCC, supra; South Florida Television Corp. v. FCC, supra, and to the propriety of replacing the operator found to be disqualified. WKAT, Inc. v. FCC, 111 U.S.App.D.C. 253, 296 F.2d 375 (1961), cert. denied, sub nom. Public Service Television, Inc. v. FCC, 368 U.S. 841, 82 S.Ct. 63, 7 L.Ed.2d 40 (1961). . See Braniff Airways, Inc. v. CAB, 113 U.S.App.D.C." }, { "docid": "8981366", "title": "", "text": "interim operation be open to all applicants, then the Commission abused its discretion by not applying the same rule to Mid-Florida. Consolidated Nine urges that it was an abuse of discretion for the Commission to permit one of several competing applicants for permanent authority to operate a channel pending an Ashbacker hearing and that this action was contrary to our holding in Community Broadcasting Co. v. FCC, 107 U.S.App.D.C. 95; 274 F.2d 753 (1960). II Grants of interim broadcast authority, while not frequent, are not novel matters for review in this court. The requirement of Ashbacker Radio Co. v. FCC, 326 U.S. 327, 66 S.Ct. 148 (1945), that mutually exclusive broadcast applications be accorded comparative hearings created a practical problem of whether there was any way to provide for operation of a station pending the comparative hearing. In Peoples Broadcasting Co. v. United States, 93 U.S.App.D.C. 78, 209 F.2d 286 (1953), this court held that interim grants of authority may be made without necessarily violating the parties’ Ash-backer rights. In Peoples Broadcasting, the Commission permitted the operator of a prior channel that had been removed from the Lancaster, Pennsylvania area to temporarily operate the new channel allocated to Lancaster pending a comparative hearing on the authority to operate the new channel. In affirming, the court relied upon section 309(c) of the Communications Act of 1934, as it then read. That section provided that the Act’s automatic stay of any grant under protest would not operate when the grant was to continue existing services, which was the case in Peoples Broadcasting. In addition, the temporary authorization was to the only station operating in Lancaster. However, there are inherent difficulties with such interim grants from the standpoint of potential prejudice to a full and fair Ashbacker hearing. In Community Broadcasting Co. v. FCC, 107 U.S.App.D.C. 95, 274 F.2d 753 (1960), we held that the Commission had acted improperly in granting interim operating authority to one of two competing applicants for a permanent grant. We emphasized that the interim operation there would entail an investment of over $250,-000. The tendency of this circumstance" }, { "docid": "8981371", "title": "", "text": "the present case all prior grants of operating authority to Mid-Florida have been vacated except for the temporary interim grant made after the most recent remand, 1 F.C.C.2d 1377, and the authority to continue that interim operation is here under appeal. Community Broadcasting dealt with an interim grant to one of several applicants for authority to operate a station where there was no present operator of that frequency. This situation can occur either where a new frequency is authorized for an area or where a prior licensee does not seek renewal or is disqualified by the Commission. In such cases, the Commission has applied Community Broadcasting standards by granting interim operating authority to a nonapplicant for the regular license, Oak Knoll Broadcasting Corp., 2 Pike & Fischer R.R.2d 1011 (1964), and by granting interim operating authority to a group of seven of the eleven applicants for regular authority. Pike-Mo Broadcasting Co., 2 F.C.C.2d 207, aff’d sub nom. Beloit Broadcasters, Inc. v. FCC, 125 U.S.App.D.C. 29, 365 F.2d 962 (1966). In Beloit Broadcasters this court noted that “[t]he diffused composition of [the interim operator] minimized the likelihood of significant prejudice to the ultimate disposition of the frequency resulting from an interim grant to it.” Id. at 30-31, 365 F.2d at 963-964. The problems now before us do not fall precisely into either category. While Mid-Florida does not hold a valid license that is presently up for renewal, the frequency is not dormant. Mid-Florida is the current operator albeit without ever having been selected through a valid comparative process. The Commission has analogized the present grant to Mid-Florida to other grants made when a remand has required further proceedings before a licensee is entitled to a regular license. These cases support the Commission’s order immediately after our remand permitting Mid-Florida to continue its operation of channel 9. 1 F.C.C. 2d 1377. The issue on this appeal, however, is whether the Commission properly determined which party could operate channel 9 for the interim period after it had received competing applications for interim authority. None of the cases cited in note 9, supra, involved" }, { "docid": "8981376", "title": "", "text": "own rules. The second reason the Commission gave for its disapproval of Consolidated Nine’s application was that “it would bring together a new management group consisting mainly of adversary parties.” This, the Commission concluded, “is an inherently undesirable situation.” Consolidated Nine, Inc., 7 F.C.C.2d 801, 805 (1967) The Commission’s argument on the undesirability of a joint interim operation leads to a serious difficulty. If Mid-Florida is allowed to be the interim operator because, in part, joint interim operations have serious disadvantages, then the appeal by Comint raises a knotty problem. Comint applied, not for joint interim operating authority, but for a single-operator authority. In fact, three of the participants in the joint application of Consolidated Nine originally submitted individual requests for interim authority that were withdrawn when Consolidated Nine was formed, apparently in the expectation that they would be improper under rule 1.592(b). These parties were thus “trapped” by the Commission’s treatment of the interim authority situation here: Comint, which sought sole interim authority, had its application dismissed for failure to propose a joint operation; those who joined in Consolidated Nine, proposing a joint operation and otherwise complying with rule 1.592(b), had their application denied because a joint operation was “inherently undesirable.” Meanwhile, the interim grant went to Mid-Florida who had made no application at all and who, like Comint, had failed to offer the other applicants an opportunity to share in an interim operation. Under these circumstances, we reluctantly reach the conclusion that the Commission’s inconsistent treatment of the several applicants and favored treatment of Mid-Florida because of its prior operation constitute an abuse of the discretion contemplated by the remand. The Commission has argued that the reason that rule 1.592 does not apply to Mid-Florida is that it was not intended to deal with the continued operation of an existing station, but rather with stations where either the prior licensee lost its license or new channels were allocated by the Commission; these were situations where the competing applicants were not presently operating the station. But if the rule does not apply to the present situation, then it is" }, { "docid": "8981364", "title": "", "text": "continued to pursue its application for individual interim authority as well as offering to belong to an interim group should the Commission direct that one be created. Mid-Florida opposed interim grants to either Consolidated Nine or Comint and requested that the Commission continue the status quo by allowing Mid-Florida to operate channel 9 pending the outcome of the comparative hearing. On March 29,1967, the Commission entered an order dismissing the application of Comint and granting Mid-Florida’s request to continue its operation of channel 9. Consolidated Nine, Inc., 7 F.C.C.2d 801 (1967). In dismissing Comint’s application, the Commission stated: “Since Comint Corp.’s application does not afford all of the applicants a reasonable opportunity to participate with it in seeking the conditional grant, its request for interim authority must be dismissed for failure to comply with the rules.” Id. at 802. Because of Comint’s willingness to participate with other applicants in an interim operation, Comint was treated by the Commission as a “prospective stockholder” in Consolidated Nine. In choosing between continued operation by Mid-Florida and an interim grant to Consolidated Nine, the Commission stated why it favored Mid-Florida over the proposed joint operation by Consolidated Nine as follows: A joint interim operation has serious drawbacks. First, it requires a substantial investment in new facilities. Secondly, it would bring together a new management group consisting mainly of adversary parties. This is an inherently undesirable situation. Joint operation by conflicting parties to a hearing is hardly conducive to satisfactory long-range planning, leaves responsibility in doubt, and does not provide a sound basis for, or incentive to, special efforts to serve the community’s needs. Our experience with joint interim operations indicates that this arrangement may serve to delay the outcome of the comparative hearing, and that it provides poorer management than station operation under the control of one party. An interim authorization is primarily useful when there is no existing service, or an existing licensee has been disqualified. Consolidated Nine, Inc., 7 F.C.C.2d 801, 805 (1967). Comint and Consolidated Nine both appeal. Comint claims that if it is subject to rule 1.592(b) requiring that its" }, { "docid": "8981379", "title": "", "text": "We have no doubt that the fact that Mid-Florida was already operating the station is entitled to weight. Not only would there be no new and added expenses to go on the air, but also there are disadvantages with joint interim operations and the continuity of service would be better provided by Mid-Florida’s continued service than by a new operator who might be forced to construct new faeili ties, unless it could ultimately acquire use of existing facilities. We are aware that if Consolidated Nine’s or Comint’s application had been granted there would have been a delay before either was in a position to go on the air- — assuming of course, that Mid-Florida did not sell or lease its facilities or join the open-ended Consolidated Nine. This factor may well seem inconsistent with the grant by this court of discretion to permit the “continued operation” of the station. However, this consideration was not advanced by the Commission. Chenery Corp. v. SEC, 318 U.S. 80, 63 S.Ct. 454, 87 L.Ed. 626 (1943). The factor that this court identified in Community Broadcasting as most heavily prejudicing the rights of competing applicants by an interim grant was the investment made by the successful applicant for interim authority. The Commission subsequently issued rule 1.592, which it now tells us is designed to deal with cases where there is no carry-over or existing qualified operator of the channel, and it is in the public interest to keep the channel on the air. That rule requires that any application for interim authority be open to all applicants, unless the application meets one of the four special situations in rule 1.592(a). But the Commission argues that rule 1.592 (b)’s requirement that the application for interim authority be open to all applicants for regular authority does not apply to the situation where there is already a licensee operating the station. The Commission does not suggest that the present case is that of a carry-over operation under section 307(d) of the Communications Act, 47 U.S.C. § 307 (d) (1964) and rule 1.62, 47 C.F.R. § 1.62 (1968); under" }, { "docid": "8981372", "title": "", "text": "that “[t]he diffused composition of [the interim operator] minimized the likelihood of significant prejudice to the ultimate disposition of the frequency resulting from an interim grant to it.” Id. at 30-31, 365 F.2d at 963-964. The problems now before us do not fall precisely into either category. While Mid-Florida does not hold a valid license that is presently up for renewal, the frequency is not dormant. Mid-Florida is the current operator albeit without ever having been selected through a valid comparative process. The Commission has analogized the present grant to Mid-Florida to other grants made when a remand has required further proceedings before a licensee is entitled to a regular license. These cases support the Commission’s order immediately after our remand permitting Mid-Florida to continue its operation of channel 9. 1 F.C.C. 2d 1377. The issue on this appeal, however, is whether the Commission properly determined which party could operate channel 9 for the interim period after it had received competing applications for interim authority. None of the cases cited in note 9, supra, involved a remand which ordered new comparative hearings. Each, instead, involved a determination of whether the prior comparative hearings had been properly conducted. Consequently, they do not present the problem of whether the prejudice to a comparative hearing under Community Broadcasting dictates the same treatment on this remand as in cases where a frequency is open, with no presently qualified operator. Ill In reviewing the present grants of interim authority, the first factor of importance is the new investment that would be involved in any of the proposed interim operations. Community Broadcasting, Inc. v. FCC, 107 U.S.App.D.C. 95, 274 F.2d 753 (1960). In these proceedings the Commission has been alert to the possible prejudice that might ensue if one applicant were permitted to make a substantial investment on the strength of a grant of temporary authority. The Commission’s order permitting Mid-Florida to continue to operate channel 9 was specifically conditioned upon its not expending any funds pursuant to an agreement already entered to share the new proposed transmission facilities of an applicant for another channel authority." }, { "docid": "8981373", "title": "", "text": "a remand which ordered new comparative hearings. Each, instead, involved a determination of whether the prior comparative hearings had been properly conducted. Consequently, they do not present the problem of whether the prejudice to a comparative hearing under Community Broadcasting dictates the same treatment on this remand as in cases where a frequency is open, with no presently qualified operator. Ill In reviewing the present grants of interim authority, the first factor of importance is the new investment that would be involved in any of the proposed interim operations. Community Broadcasting, Inc. v. FCC, 107 U.S.App.D.C. 95, 274 F.2d 753 (1960). In these proceedings the Commission has been alert to the possible prejudice that might ensue if one applicant were permitted to make a substantial investment on the strength of a grant of temporary authority. The Commission’s order permitting Mid-Florida to continue to operate channel 9 was specifically conditioned upon its not expending any funds pursuant to an agreement already entered to share the new proposed transmission facilities of an applicant for another channel authority. The Commission, in so conditioning the grant, stated that “such an investment [$192,250], during the temporary operation, could prejudice the other applicants in the hearing,” citing Community Broadcasting. The Commission’s opinion reveals that the application of Consolidated Nine predicted $1,393,000 in construction costs and $1,300,000 in estimated first-year expenses. The application estimated only $1,500,000 in first-year revenues. Consolidated Nine, Inc., 7 F.C.C. 801, 803 (1967). Thus the first year of interim operation would involve an estimated $1,200,000 operating deficit. Of course, this deficit would be shared by at least four applicants rather than by only one applicant as in Community Broadcasting. See Beloit Broadcasters, Inc. v. FCC, 125 U.S.App.D.C. 29, 31, 365 F.2d 962, 964 (1966). The Commission noted that Consolidated Nine was unsuccessful in its attempts to arrange to buy or lease the broadcast facilities of Mid-Florida for an interim operation. Certainly, this would contribute to the cost for Consolidated Nine that the Commission denotes as construction costs. However, there is no record of what difference the inability to lease or purchase the facilities" }, { "docid": "8981377", "title": "", "text": "those who joined in Consolidated Nine, proposing a joint operation and otherwise complying with rule 1.592(b), had their application denied because a joint operation was “inherently undesirable.” Meanwhile, the interim grant went to Mid-Florida who had made no application at all and who, like Comint, had failed to offer the other applicants an opportunity to share in an interim operation. Under these circumstances, we reluctantly reach the conclusion that the Commission’s inconsistent treatment of the several applicants and favored treatment of Mid-Florida because of its prior operation constitute an abuse of the discretion contemplated by the remand. The Commission has argued that the reason that rule 1.592 does not apply to Mid-Florida is that it was not intended to deal with the continued operation of an existing station, but rather with stations where either the prior licensee lost its license or new channels were allocated by the Commission; these were situations where the competing applicants were not presently operating the station. But if the rule does not apply to the present situation, then it is difficult to understand why it was applied to Co-mint, and apparently to those parties who were led to form Consolidated Nine. If Mid-Florida is subject to different requirements in terms of its proposals for interim operations due to the fact that it is now operating the station, then we are faced with an inconsistency within the rulings by the Commission in these proceedings: when its authority to operate the station was given after our latest remand decision, Mid-Florida was told by the Commission that its continued operation of the station would be “without prejudice to, and constitute no preference in any respect of any proceeding to be held with respect to Channel 9, in Orlando, Florida.” 7 F.C.C.2d at 809. Yet, in the very next proceeding with respect to channel 9, the rules were different for Mid-Florida from those for the other applicants. Clearly, there was a “preference” for Mid-Florida, not simply in the ultimate choice of who should run the station in the interim, but in the method by which that choice was made." }, { "docid": "8981362", "title": "", "text": "376 U.S. 914, 84 S.Ct. 664, 11 L.Ed.2d 611 (1964). The Commission, however, declined to reopen the record and again determined that Mid-Florida was the better qualified of the two applicants. WORZ, Inc., 36 F.C.C. 1535 (1964). On appeal, this court vacated the Commission’s decision and remanded the proceedings to the Commission to reopen the record and permit new applicants for the authority to operate channel 9. We noted both the age of the record— ten years — and the “nagging uncertainty as to whether so vital a community fadlity as is involved here should not be exposed to what may possibly be wider interests than those represented by these two applicants.” WORZ, Inc. v. FCC, 120 U.S.App.D.C. 191, 192, 345 F.2d 85, 86 (1965). The Commission was again authorized to grant “temporary authority for the continued operation of the statl0n' IbuL The Commission then °Pened the Proceedings for new applicatlons for channel 9 and authorized Mid-Florida to continue its operation of the station- The Commission stated that this operation was to be “without prejudice to’ and constitute no preference m aiW resPect of any proceeding to be held with resPect to Channel 9, in Orlando, Florida” WORZ, Inc., 1 F.C.C.2d 1377 (1965). By the new cut-off date the Commission set for applications for channel 9, a total of eight applicants had filed for authority. Four of the new applicants (Central Nine Corporation, TV 9, Inc., Florida Heartland Television, Inc., and Comint Corporation) each applied for authority to operate channel 9 in the interim period before final authorization was determined. Subsequently, three of these applicants dropped their requests for individual interim operating authority and formed Consolidated Nine, Inc. Consolidated Nine was incorporated for the purpose of applying for and if successful, operating, channel 9 in the interim before comparative hearings were held. It was an open-ended group, with provisions that any applicant for permanent author ity could participate with the original incorporators on an equal basis. Four of the six remaining applicants for permanent authority are participants in Consolidated Nine. Comint and Mid-Florida did not join Consolidated Nine. Comint has" }, { "docid": "8981378", "title": "", "text": "difficult to understand why it was applied to Co-mint, and apparently to those parties who were led to form Consolidated Nine. If Mid-Florida is subject to different requirements in terms of its proposals for interim operations due to the fact that it is now operating the station, then we are faced with an inconsistency within the rulings by the Commission in these proceedings: when its authority to operate the station was given after our latest remand decision, Mid-Florida was told by the Commission that its continued operation of the station would be “without prejudice to, and constitute no preference in any respect of any proceeding to be held with respect to Channel 9, in Orlando, Florida.” 7 F.C.C.2d at 809. Yet, in the very next proceeding with respect to channel 9, the rules were different for Mid-Florida from those for the other applicants. Clearly, there was a “preference” for Mid-Florida, not simply in the ultimate choice of who should run the station in the interim, but in the method by which that choice was made. We have no doubt that the fact that Mid-Florida was already operating the station is entitled to weight. Not only would there be no new and added expenses to go on the air, but also there are disadvantages with joint interim operations and the continuity of service would be better provided by Mid-Florida’s continued service than by a new operator who might be forced to construct new faeili ties, unless it could ultimately acquire use of existing facilities. We are aware that if Consolidated Nine’s or Comint’s application had been granted there would have been a delay before either was in a position to go on the air- — assuming of course, that Mid-Florida did not sell or lease its facilities or join the open-ended Consolidated Nine. This factor may well seem inconsistent with the grant by this court of discretion to permit the “continued operation” of the station. However, this consideration was not advanced by the Commission. Chenery Corp. v. SEC, 318 U.S. 80, 63 S.Ct. 454, 87 L.Ed. 626 (1943). The factor that" }, { "docid": "8981380", "title": "", "text": "this court identified in Community Broadcasting as most heavily prejudicing the rights of competing applicants by an interim grant was the investment made by the successful applicant for interim authority. The Commission subsequently issued rule 1.592, which it now tells us is designed to deal with cases where there is no carry-over or existing qualified operator of the channel, and it is in the public interest to keep the channel on the air. That rule requires that any application for interim authority be open to all applicants, unless the application meets one of the four special situations in rule 1.592(a). But the Commission argues that rule 1.592 (b)’s requirement that the application for interim authority be open to all applicants for regular authority does not apply to the situation where there is already a licensee operating the station. The Commission does not suggest that the present case is that of a carry-over operation under section 307(d) of the Communications Act, 47 U.S.C. § 307 (d) (1964) and rule 1.62, 47 C.F.R. § 1.62 (1968); under that section a timely application for a renewal of a valid license keeps the original license in effect until the renewal application has been acted upon. There was no valid license in the present proceedings since the prior grants of authority by the Commission to Mid-Florida have been vacated. It is for this reason, no doubt, the Commission emphasizes that it is acting not under its rules, but under the terms of the prior remand from this court which permitted continued operation if the Commission so decided. There are, however, factors other than the financial investment of the successful interim operator which should be taken into account, especially where, as here, whether Mid-Florida or Consolidated Nine is given the interim grant there will be no new financial investment made by a single applicant, but rather by none if Mid-Florida succeeds and by at least four applicants if Consolidated Nine succeeds. The absence of the preferential economic factor merely leads to the necessity to examine other factors to determine if the disposition in question has produced" }, { "docid": "8981391", "title": "", "text": "affiliate with it; in the Greensboro-Bighpoint case, the remand was to have the Commission answer the charge of certain localities that the award in question discriminated against them; and in American Broadcasting Go., the remand was for the Commission to make a long-delayed decision on the permanent frequency allocation for a station that was given a temporary allocation when its authorized frequency was removed by treaty from permissible American channels. . In Pike-Mo Broadcasting Co., 2 F.C.C. 207, 209 (1965), aff’d sub nom. Beloit Broadcasters, Inc. v. FCC, 125 U.S.App.D.C. 29, 365 F.2d 962 (1966), the interim grantee was given a grant which entailed its building facilities anew because the prior operator of the station would not offer satisfactory terms for sale or lease of its facilities. The Commission gave the successful joint interim applicant 30 days to attempt to negotiate more favorable sale or lease terms and to petition for a modification of the facilities granted by the Commission, if it was successful. Id. at 209 n. 4. . Interim operations applications may be for single operation by one operator, if they meet one of the conditions set forth in rule 1.592(a), 47 C.F.R. § 1.592(a) (1968), none of which are pertinent here. . One stated reason is inconsistent with the apparent thrust of the “interim” authority. The Commission stated that joint operations by competitors “is hardly conducive to long-range planning.” 7 F.C.C.2d at 805. Although all interim operators have so far been granted the permanent authority or have merged into the group that obtained it, this is definitely not the theory of interim operations. The “interim” is just that and the Commission has made clear that it should not in any way prejudice the eventual choice of regular authority. . Consolidated Nine offered to construct its facilities on a “crash” basis. But this merely points out that there would be a time lag from the grant until the commencement of operations, which themselves were intended to be only for the “interim.” . See Beloit Broadcasters, Inc. v. FCC, 125 U.S.App.D.C. 29, 365 F.2d 962, 964 (1966)." }, { "docid": "8981363", "title": "", "text": "to’ and constitute no preference m aiW resPect of any proceeding to be held with resPect to Channel 9, in Orlando, Florida” WORZ, Inc., 1 F.C.C.2d 1377 (1965). By the new cut-off date the Commission set for applications for channel 9, a total of eight applicants had filed for authority. Four of the new applicants (Central Nine Corporation, TV 9, Inc., Florida Heartland Television, Inc., and Comint Corporation) each applied for authority to operate channel 9 in the interim period before final authorization was determined. Subsequently, three of these applicants dropped their requests for individual interim operating authority and formed Consolidated Nine, Inc. Consolidated Nine was incorporated for the purpose of applying for and if successful, operating, channel 9 in the interim before comparative hearings were held. It was an open-ended group, with provisions that any applicant for permanent author ity could participate with the original incorporators on an equal basis. Four of the six remaining applicants for permanent authority are participants in Consolidated Nine. Comint and Mid-Florida did not join Consolidated Nine. Comint has continued to pursue its application for individual interim authority as well as offering to belong to an interim group should the Commission direct that one be created. Mid-Florida opposed interim grants to either Consolidated Nine or Comint and requested that the Commission continue the status quo by allowing Mid-Florida to operate channel 9 pending the outcome of the comparative hearing. On March 29,1967, the Commission entered an order dismissing the application of Comint and granting Mid-Florida’s request to continue its operation of channel 9. Consolidated Nine, Inc., 7 F.C.C.2d 801 (1967). In dismissing Comint’s application, the Commission stated: “Since Comint Corp.’s application does not afford all of the applicants a reasonable opportunity to participate with it in seeking the conditional grant, its request for interim authority must be dismissed for failure to comply with the rules.” Id. at 802. Because of Comint’s willingness to participate with other applicants in an interim operation, Comint was treated by the Commission as a “prospective stockholder” in Consolidated Nine. In choosing between continued operation by Mid-Florida and an interim" }, { "docid": "8981387", "title": "", "text": "the terms of a regular authorization; the effect, if any, of a grant on the position of any applicant which is not a member of the group; and any other factors which are deemed pertinent to the public interest judgment. 47 C.F.R. § 1.592(b) (1968). . Ashbacker Radio Corp. v. FCC, 326 U.S. 327, 66 S.Ct. 148, 90 L.Ed. 108 (1945), requires a comparative hearing on mutually exclusive applications for broadcast authority. . See notes 4 & 5 infra. . 47 U.S.C. § 309(c) (1958), Act of January 20, 1956, ch. 1, 70 Stat. 3: pending hearing and decision the effective date of the Commission’s action to which protest is made shall be postponed to the effective date of the Commission’s decision after hearing, unless the authorization involved is necessary to the maintenance or conduct of an existing service, or unless the Commission affirmatively finds for reasons set forth in the decision that the public interest requires that the grant remain in effect, in which event the Commission shall authorize the applicant to utilize the facilities or authorization in question pending the Commission’s decision after hearing. . Act of September 13, 1960, Pub.L. 86-752, § 4(a), 74 Stat. 889. . 47 U.S.C. § 309(e), (f) (1964); Folkways Broadcasting Co. v. FCC, 126 U.S. App.D.C. 123, 379 F.2d 447, 448 n. 1 (1967). Section 309(f) permits a 90-day emergency operation, renewable once, in “extraordinary circumstances requiring emergency operations in the public interest * * * [where] delay, in the institution of such emergency operations would seriously prejudice the public interest * * . In Community Broadcasting the fact that the interim operator was already operating a UIIF frequency in the vicinity was not considered significant. It was necessary to construct new facilities even for an interim operation. In Peoples Broadcasting Co. v. United States, 93 U.S.App.D.C. 78, 209 F.2d 286 (1953), the interim authority was construed as a continuation of existing services when the operator of another VHF frequency was merely authorized to change its frequency when the Commission removed its prior frequency and added a new one to the area" }, { "docid": "8981370", "title": "", "text": "also growing out of ex parte approaches to a Commissioner while comparative hearings were pending, the Commission awarded licenses to the only remaining “untainted” applicants, but for a period of only four months, rather than the customary three years. Such a course is an appropriate exercise of the Commission’s discretion. WKAT, Inc. v. FCC, 111 U.S.App.D.C. 253, 261, 296 F.2d 375, 383 (1961), cert. denied, sub nom. Public Service Television, Inc. v. FCC, 368 U.S. 841, 82 S.Ct. 63, 7 L.Ed.2d 40 (1961). In such cases, in the comparative hearing when the licensee applies for a renewal, the experience of the short-term licensee may be considered by the Commission, Community Broadcating Corp. v. FCC, 124 U.S.App.D.C. 230, 363 F.2d 717 (1966), and some credit may be given for its broadcasting performance. South Florida Television Corp. v. FCC, 121 U.S.App.D.C. 293, 349 F.2d 971 (1965), cert. denied, 382 U.S. 987, 86 S.Ct. 541, 15 L.Ed. 2d 475 (1966). But in these cases there was a valid grant to the person in operation of the station. In the present case all prior grants of operating authority to Mid-Florida have been vacated except for the temporary interim grant made after the most recent remand, 1 F.C.C.2d 1377, and the authority to continue that interim operation is here under appeal. Community Broadcasting dealt with an interim grant to one of several applicants for authority to operate a station where there was no present operator of that frequency. This situation can occur either where a new frequency is authorized for an area or where a prior licensee does not seek renewal or is disqualified by the Commission. In such cases, the Commission has applied Community Broadcasting standards by granting interim operating authority to a nonapplicant for the regular license, Oak Knoll Broadcasting Corp., 2 Pike & Fischer R.R.2d 1011 (1964), and by granting interim operating authority to a group of seven of the eleven applicants for regular authority. Pike-Mo Broadcasting Co., 2 F.C.C.2d 207, aff’d sub nom. Beloit Broadcasters, Inc. v. FCC, 125 U.S.App.D.C. 29, 365 F.2d 962 (1966). In Beloit Broadcasters this court noted" }, { "docid": "8981375", "title": "", "text": "would make in the total cost to Consolidated Nine; this type of computation is made uncertain by such variables as the terms of sale or rental that might have been agreed upon and how much sooner such arrangements would have permitted Consolidated Nine to come on the air than if it had to construct its own facilities. There is, of course, no obligation on Mid-Florida to make its facilities available to adverse parties seeking interim authority except the inescapable economic realities which could exert some force. On the other hand, however, the refusal of Mid-Florida to either join the Consolidated Nine group or to make its facilities available stands in stark contrast to the Commission’s rule under which both Consolidated Nine’s and Comint’s applications were considered, that requires any interim operation proposal to be open to all applicants. Clearly Mid-Florida’s continuing operation is not open to others, and the inability of Consolidated Nine to secure the facilities for its joint interim operation may well be properly accorded a limited importance in light of the Commission’s own rules. The second reason the Commission gave for its disapproval of Consolidated Nine’s application was that “it would bring together a new management group consisting mainly of adversary parties.” This, the Commission concluded, “is an inherently undesirable situation.” Consolidated Nine, Inc., 7 F.C.C.2d 801, 805 (1967) The Commission’s argument on the undesirability of a joint interim operation leads to a serious difficulty. If Mid-Florida is allowed to be the interim operator because, in part, joint interim operations have serious disadvantages, then the appeal by Comint raises a knotty problem. Comint applied, not for joint interim operating authority, but for a single-operator authority. In fact, three of the participants in the joint application of Consolidated Nine originally submitted individual requests for interim authority that were withdrawn when Consolidated Nine was formed, apparently in the expectation that they would be improper under rule 1.592(b). These parties were thus “trapped” by the Commission’s treatment of the interim authority situation here: Comint, which sought sole interim authority, had its application dismissed for failure to propose a joint operation;" }, { "docid": "8981374", "title": "", "text": "The Commission, in so conditioning the grant, stated that “such an investment [$192,250], during the temporary operation, could prejudice the other applicants in the hearing,” citing Community Broadcasting. The Commission’s opinion reveals that the application of Consolidated Nine predicted $1,393,000 in construction costs and $1,300,000 in estimated first-year expenses. The application estimated only $1,500,000 in first-year revenues. Consolidated Nine, Inc., 7 F.C.C. 801, 803 (1967). Thus the first year of interim operation would involve an estimated $1,200,000 operating deficit. Of course, this deficit would be shared by at least four applicants rather than by only one applicant as in Community Broadcasting. See Beloit Broadcasters, Inc. v. FCC, 125 U.S.App.D.C. 29, 31, 365 F.2d 962, 964 (1966). The Commission noted that Consolidated Nine was unsuccessful in its attempts to arrange to buy or lease the broadcast facilities of Mid-Florida for an interim operation. Certainly, this would contribute to the cost for Consolidated Nine that the Commission denotes as construction costs. However, there is no record of what difference the inability to lease or purchase the facilities would make in the total cost to Consolidated Nine; this type of computation is made uncertain by such variables as the terms of sale or rental that might have been agreed upon and how much sooner such arrangements would have permitted Consolidated Nine to come on the air than if it had to construct its own facilities. There is, of course, no obligation on Mid-Florida to make its facilities available to adverse parties seeking interim authority except the inescapable economic realities which could exert some force. On the other hand, however, the refusal of Mid-Florida to either join the Consolidated Nine group or to make its facilities available stands in stark contrast to the Commission’s rule under which both Consolidated Nine’s and Comint’s applications were considered, that requires any interim operation proposal to be open to all applicants. Clearly Mid-Florida’s continuing operation is not open to others, and the inability of Consolidated Nine to secure the facilities for its joint interim operation may well be properly accorded a limited importance in light of the Commission’s" }, { "docid": "8981381", "title": "", "text": "that section a timely application for a renewal of a valid license keeps the original license in effect until the renewal application has been acted upon. There was no valid license in the present proceedings since the prior grants of authority by the Commission to Mid-Florida have been vacated. It is for this reason, no doubt, the Commission emphasizes that it is acting not under its rules, but under the terms of the prior remand from this court which permitted continued operation if the Commission so decided. There are, however, factors other than the financial investment of the successful interim operator which should be taken into account, especially where, as here, whether Mid-Florida or Consolidated Nine is given the interim grant there will be no new financial investment made by a single applicant, but rather by none if Mid-Florida succeeds and by at least four applicants if Consolidated Nine succeeds. The absence of the preferential economic factor merely leads to the necessity to examine other factors to determine if the disposition in question has produced any prejudice to the Ashbacker rights of the parties. One factor that we cannot ignore, and think the Commission should have weighed, and now must weigh, was the influence of Mid-Florida’s operation of the station for over eight years without ever receiving a valid grant of authority or having emerged successfully from a valid comparative hearing for the license. This is surely an anomaly when we recall that three years is the longest permissible period for a standard license. 47 U.S.C. § 307 (d) (1964). Certainly, there is even greater reason for a temporary grant to be for a lesser period of time, and more prejudice to competing applicants from the fact that Mid-Florida’s position is now being characterized as the “status quo” which the Commission, at least in these interim proceedings, has concluded should be preserved. There is another side to the economic argument that Mid-Florida will not have to construct new facilities in order to continue broadcasting. The initial costs have been incurred and, presumably, Mid-Florida is by now making a profit from" }, { "docid": "8981359", "title": "", "text": "BURGER, Circuit Judge: This is an appeal by Consolidated Nine, Inc. and Comint Corporation from an opinion and order of the Federal Communications Commission which denied an application for interim operating authority and granted authority to Mid-Florida Television Corporation, Intervenor here, to continue the operation of channel 9 pending resolution of a new comparative hearing before the Commission. Consolidated Nine is an open-end joint group in which four of the contending applicants have joined to propose a joint interim operation of the facility. This is spelled out more fully later. In one way or another, the basic problem involved here has been before the Commission for over a dozen years and is now in this court for the fourth time. The history and background are therefore important to an understanding of the case, its complexity makes it necessary to set it forth in some detail. I The History op the Channel 9 Proceedings In 1954 and 1955 comparative hearings were held on the mutually exclusive applications of Mid-Florida Television Corporation (Mid-Florida) and WORZ, Inc. (WORZ) for a construction permit for channel 9, a VHF television frequency assigned to Orlando, Florida. On June 7, 1957, the Commission granted the application of Mid-Florida. 22 F.C.C. 1254 (1957). WORZ appealed to this court, which affirmed the Commission’s conclusion. WORZ, Inc. v. FCC, 103 U.S.App.D.C. 195, 257 F.2d 199 (1958). The Supreme Court granted certiorari, but, in light of the representations by the Solicitor General, in his opposition to the writ, that intervening Congressional investigations had indicated possible improper ex parte representations had been made to a member of the Commission concerning the qualifications of WORZ while the applications were pending, the Court vacated the judgment of this court, and remanded for such action as this court might thereafter deem appropriate, WORZ, Inc. v. FCC, 358 U.S. 55, 79 S.Ct. 114, 3 L.Ed.2d 48 (1958). This court vacated the Commission’s order awarding channel 9 to Mid-Florida and remanded the case to the Commission with instructions that it hold hearings to determine the nature and scope of the alleged ex parte approaches to the Commission." } ]

[ { "docid": "22639292", "title": "", "text": "a transcript (assuming no allegation that the unavailability is due to governmental misconduct) that the defendant was not advised of his rights. In this situation, Boykin does not prohibit a state court from presuming, at least initially, that a final judgment of conviction offered for purposes of sentence enhancement was validly obtained. Burgett v. Texas, 389 U. S. 109 (1967), does not necessitate a different result. There the Court held that a prior conviction could not be used for sentence enhancement because the record of the earlier proceeding did not show that the defendant had waived his right to counsel. Id., at 114-115. Respondent suggests that because Burgett involved a state recidivism proceeding, it stands for the proposition that every previous conviction used to enhance punishment is “presumptively void” if waiver of a claimed constitutional right does not appear from the face of the record. Brief for Respondent 14-15. We do not read the decision so broadly. At the time the prior conviction at issue in Burgett was entered, state criminal defendants’ federal constitutional right to counsel had not yet been recognized, and so it was reasonable to presume that the defendant had not waived a right he did not possess. As we have already explained, the same cannot be said about a record that, by virtue of its unavailability on collateral review, fails to show compliance with the well-established Boykin requirements. Respondent argues that imposing even a burden of production on him is fundamentally unfair because “a constitutionally protected right is in question.” Brief for Respondent 15. By this he apparently refers to the Fifth and Sixth Amendment rights that a defendant waives by pleading guilty. Our precedents make clear, however, that even when a collateral attack on a final conviction rests on constitutional grounds, the presumption of regularity that attaches to final judgments makes it appropriate to assign a proof burden to the defendant. See, e. g., Johnson, supra, at 468-469. Respondent also contends that Kentucky’s rule is unfair because it may be difficult to prove the invalidity of a conviction entered many years ago, perhaps in another" } ]

[ { "docid": "23533801", "title": "", "text": "(same), with United States v. Indelicato, 97 F. 3d 627, 631 (CA1 1996) (“civil rights restored” includes civil rights never lost). Ill Logan pleaded guilty to being a felon in possession of a firearm, in violation of § 922(g)(l), and received a mandatory minimum 15-year sentence because he had at least three prior convictions for “violent felon[ies].” § 924(e)(1) (2000 ed., Supp. V). He acknowledges his convictions in Wisconsin'for three battery offenses that facially qualify as violent felonies under § 921(a)(20)(B) (2000 ed.). See Brief for Petitioner 4-5. Thus the sole matter in dispute is whether Logan fits within the exemption from an ACCA-enhanced sentence for convictions “expunged, or set aside” or offend ers who “ha[ve] been pardoned or ha[ve] had civil rights restored.” §921(a)(20). None of Logan’s battery convictions have been expunged, set aside, or pardoned. See 458 F. 3d, at 809. Under Wisconsin law, felons lose but can regain their civil rights and can gain the removal of firearms disabilities. See Wis. Stat. §6.03(l)(b) (Supp. 2006); Wis. Const., Art. XIII, § 3(2); Wis. Stat. § 756.02 (2001); § 973.176(1) (2007). Persons convicted of misdemeanors, however, even if they are repeat offenders, generally retain their civil rights and are not subject to firearms disabilities.. With this background in view, we turn to the proper interpretation of the § 921(a)(20) exemption from ACCA-enhanced sentencing for offenders who have had their “civil rights restored.” Logan’s misdemeanor convictions, we reiterate, did not result in any loss of the rights to vote, hold public office, or serve on juries. Should he nonetheless be ranked with offenders whose rights were terminated but later restored? The ordinary meaning of the word “restored” affords Logan no aid. In line with dictionary definitions, the Court of Appeals stated: “The word ‘restore’ means to give back something that had been taken away.” 453 F. 3d, at 805. Accord McGrath, 60 F. 3d, at 1007 (“The ‘restoration’ of a thing never lost or diminished is a definitional impossibility.”); cf. Indelicato, 97 F. 3d, at 629 (“Clearly the ordinary reading of the word ‘restored’ supports the government.”). The context in" }, { "docid": "19394344", "title": "", "text": "not apply the modified categorical approach when the crime of which the defendant was convicted has a single, indivisible set of elements. I Petitioner Michael Descamps was convicted of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g). That unadorned offense carries a maximum penalty of 10 years in prison. The Government, however, sought an enhanced sentence under ACCA, based on Descamps' prior state convictions for burglary, robbery, and felony harassment. ACCA prescribes a mandatory minimum sentence of 15 years for a person who violates § 922(g) and \"has three previous convictions ... for a violent felony or a serious drug offense.\" § 924(e)(1). The Act defines a \"violent felony\" to mean any felony, whether state or federal, that \"has as an element the use, attempted use, or threatened use of physical force against the person of another,\" or that \"is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.\" § 924(e)(2)(B). Descamps argued that his prior burglary conviction could not count as an ACCA predicate offense under our categorical approach. He had pleaded guilty to violating California Penal Code Ann. § 459 (West 2010), which provides that a \"person who enters\" certain locations \"with intent to commit grand or petit larceny or any felony is guilty of burglary.\" That statute does not require the entry to have been unlawful in the way most burglary laws do. Whereas burglary statutes generally demand breaking and entering or similar conduct, California's does not: It covers, for example, a shoplifter who enters a store, like any customer, during normal business hours. See People v. Barry, 94 Cal. 481, 483-484, 29 P. 1026, 1026-1027 (1892). In sweeping so widely, the state law goes beyond the normal, \"generic\" definition of burglary. According to Descamps, that asymmetry of offense elements precluded his conviction under § 459 from serving as an ACCA predicate, whether or not his own burglary involved an unlawful entry that could have satisfied the requirements of the generic crime. The District Court disagreed." }, { "docid": "22746864", "title": "", "text": "the trigger.” Ante, at 146. The Court cites no empirical support for this conclusion, and its accuracy is not self-evident. Petitioner’s pattern of behavior may or may not be typical of those defendants who have enough DUI convictions to qualify under N. M. Stat. Ann. §66-8-102(G) and 18 U. S. C. § 924(e)(2)(B), but the example of his behavior in this case — pointing a gun at his aunt’s head and repeatedly pulling the trigger — should surely be enough to counsel against uncritical rebaneé on stereotypes about “the type” of people who commit felony DUI violations. Defendants who qualify for an enhanced sentence under § 924(e) (2000 ed. and Supp. V) based (in whole or in part) on felony DUI convictions share at least three characteristics that are relevant for present purposes. First, they are per sons who, in the judgment of Congress, cannot be trusted to use a firearm responsibly. In order to qualify for an enhanced sentence under § 924(e), a defendant must of course be convicted of violating the felon-in-possession statute, § 922(g) (2000 ed.). The felon-in-possession statute necessarily rests on the judgment that a person with a prior felony conviction cannot be trusted with a firearm. See Caron v. United States, 524 U. S. 308, 315 (1998) (“Congress meant to keep guns away from all offenders who, the Federal Government feared, might cause harm . . . ”). And there is no dispute that a prior felony DUI conviction qualifies as a felony under the felon-in-possession law. If Congress thought that a person with a prior felony DUI conviction is not “the kind of person” who is likely to use a gun unlawfully, why would Congress have made it a crime for such a person to possess a gun? Second, defendants with DUI convictions that are counted under 18 U. S. C. § 924(e)(2)(B) are likely to have serious alcohol abuse problems. As previously mentioned, ordinary DUI convictions are generally not counted under § 924(e) because they are not punishable by imprisonment for more than a year. Such penalties are generally reserved for persons, like" }, { "docid": "13526912", "title": "", "text": "also Lewis v. United States, 445 U.S. 55, 100 S.Ct. 915, 63 L.Ed.2d 198 (1980) (upholding prohibition on firearm possession based upon felony conviction). . See, e.g., 42 USC § 13663 (1998) (effective 1 October 1999) which requires that an owner of federally assisted housing prohibit admission to such housing for any household that includes any individual who is subject to a lifetime registration requirement under a state sex offender registration program. . See, e.g., Tex. Gov’t Code Ann. § 415.058 (1995) (felon prohibited from serving as law enforcement officer, public securiiy officer, or county jailer). See also Welch v. State ex rel Long, 880 S.W.2d 79 (Tex.App.1994) (county constable discharged upon felony DUI conviction even though sentence was suspended). . See, e.g„ D.C.Code Ann. § 2-3305.14(a)(4) (1995) which authorizes the revocation, suspension, or denial of health professional license to any person who has been convicted in any jurisdiction of any crime involving moral turpitude, if the offense bears directly on the fitness of the individual to be licensed. See also Barsky v. Board of Regents of Univ. of N.Y., 347 U.S. 442, 74 S.Ct. 650, 98 L.Ed. 829 (1954) (upholding suspension from practice of medicine for physician convicted of misdemeanor). . On May 17, 1996, the President signed a federal version of Megan’s Law (Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act) (codified as amended at 42 U.S.C. § 14071 (1998)), which conditioned the availability of certain federal funds to-states upon the creation of a sex offender registration program, including a mandatory notification provision. . See Office of the Pardon Attorney, U.S. Department of Justice, Civil Disabilities of Convicted Felons: A State-by-State Survey (1996); see also Jamie Fellner and Marc Mauer, The Sentencing Project, Losing the Vote: The Impact of Felony Disenfranchisement Laws in the United States (1998). . Mich. Comp. Laws § 168.758b (1975) (disenfranchised only while confined). . Alaska Stat. § 15.05.030 (1999) (voting rights restored after unconditional discharge of prisoner, i.e., after incarceration, parole or probation). . See, e.g., D.C.Code Ann. § 11-1906(b)(2)(B) (1994) which disqualifies any person convicted of a felony from" }, { "docid": "19394385", "title": "", "text": "without mandating uniformity among the States with respect to their criminal statutes for scores of serious offenses, and without requiring the amendment of any number of federal criminal statutes as well, Congress should act at once. It may then determine whether ACCA's design and structure should be modified to meet the concerns expressed both by the Court and the dissenting opinion. With these observations, I join the opinion of the Court. Justice THOMAS, concurring in the judgment. Petitioner Matthew Descamps was convicted of being a felon in possession of a firearm, 18 U.S.C. § 922(g), which subjected him to a maximum sentence of 10 years' imprisonment. The District Court, however, applied an Armed Career Criminal Act (ACCA) enhancement with a mandatory minimum of 15 years based in part on Descamps' earlier California conviction for burglary. See § 924(e). The California law says that any \"person who enters\" any of a number of structures \"with intent to commit grand or petit larceny or any felony is guilty of burglary.\" California Penal Code Ann. § 459 (West 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" }, { "docid": "22621252", "title": "", "text": "Chief Justice Rehnquist delivered the opinion of the Court. The Armed Career Criminal Act of 1984, 18 U. S. C. § 924(e) (ACCA), raises the penalty for possession of a firearm by a felon from a maximum of 10 years in prison to a mandatory minimum sentence of 15 years and a maximum of life in prison without parole if the defendant “has three previous convictions ... for a violent felony or a serious drug offense.” We granted certiorari to determine whether a defendant in a federal sentencing proceeding may collaterally attack the validity of previous state convictions that are used to enhance his sentence under the ACCA. We hold that a defendant has no such right (with the sole exception of convictions obtained in violation of the right to counsel) to collaterally attack prior convictions. Baltimore City Police arrested petitioner Darren J. Custis on July 1,1991. A federal grand jury indicted him on three counts: (1) possession of cocaine with intent to distribute in violation of 21 U. S. C. § 841(a)(1); (2) use of a firearm in connection with a drug trafficking offense in violation of 18 U. S. C. § 924(c); and (3) possession of a firearm by a convicted felon in violation of 18 U. S. C. § 922(g)(1). Before trial in the United States District Court for the District of Maryland, the Government notified Custis that it would seek an enhanced penalty for the § 922(g)(1) offense under § 924(e)(1). The notice charged that he had three prior felony convic tions: (1) a 1985 Pennsylvania state-court conviction for robbery; (2) a 1985 Maryland state-court conviction for burglary; and (3) a 1989 Maryland state-court conviction for attempted burglary. The jury found Custis not guilty of possession with intent to distribute and not guilty of use of a firearm during a drug offense, but convicted him of possession of a firearm and simple cocaine possession, a lesser included offense in the charge of possession with intent to distribute cocaine. At the sentencing hearing, the Government moved to have Custis’ sentence enhanced under § 924(e)(1), based on the" }, { "docid": "22411981", "title": "", "text": "Justice O’Connor delivered the opinion.of the Court. This ease presents the question whether the Double Jeopardy Clause, which we have found applicable in the capital sentencing context, see Bullington v. Missouri, 451 U. S. 430 (1981), extends to noncapital sentencing proceedings. We hold that it does not, and accordingly affirm the judgment of the California Supreme Court. ? — i Petitioner was charged under California law with one count of using a minor to sell marijuana, Cal. Health & Safety-Code Ann. § 11861(a) (West 1991), one count of sale or transportation of marijuana, § 11360(a), and one count of possession of marijuana for sale, § 11359. In the information, the State also notified petitioner that it would seek to prove two sentence enhancement allegations: that petitioner had previously been convicted of assault and that he had served a prison term for that offense, see Cal. Penal Code Ann. §§ 245(a)(1), 667(e)(1), and 667.5 (West Supp. 1998). Under California’s “three-strikes” law, a defendant convicted of a felony who has two qualifying prior convictions for “serious felonies” receives a minimum sentence of 25 years to life; when the instant conviction was preceded by one serious felony offense, the court doubles a defendant’s term of imprisonment. §§ 667(d)(1) and (e)(l)-(2). An assault conviction qualifies as a serious felony if the defendant either inflicted great bodily injury on another person or per sonally used a dangerous or deadly weapon during the assault, §§ 1192.7(e)(8) and (23). According to California law, a number of procedural safeguards surround the assessment of prior conviction allegations: Defendants may invoke the right to a jury trial, the right to confront witnesses, and the privilege against self-incrimination; the prosecution must prove the allegations beyond a reasonable doubt; and the rules of evidence apply. See, e. g., 16 Cal. 4th 826, 833-834, 941 P. 2d 1121, 1126 (1997). Here, petitioner waived his right to a jury trial on the sentencing issues, and the court granted his motion to bifurcate the proceedings. After a jury entered a guilty verdict on the substantive offenses, the truth of the prior conviction allegations was argued" }, { "docid": "22778773", "title": "", "text": "so or that he was prevented from doing so by some external force. Tr. of Oral Arg. 3-4, 6. Petitioner’s federal sentence was properly enhanced pursuant to the ACCA based on his four facially valid prior state convictions. Because petitioner failed to pursue remedies that were otherwise available to him to challenge his 1978 and 1981 convictions, he may not now use a §2255 motion to collaterally attack those convictions. The judgment of the United States Court of Appeals for the Ninth Circuit is therefore affirmed. It is so ordered. Justice Souter is concerned that a defendant may forgo “direct challenge because the penalty was not practically worth challenging, and... collateral attack because he had no counsel to speak for him.” Post, at 391 (dissenting opinion). Whatever incentives may exist at the time of conviction, the fact remains that avenues of redress are generally available if sought in a timely manner. If a person chooses not to pursue those remedies, he does so with the knowledge that the conviction will stay on his record. This knowledge should serve as an incentive not to commit a subsequent crime and risk having the sentence for that crime enhanced under a recidivist sentencing statute. After comparing the text of §§2254 and 2255, Justice Scaiia concludes that “Congress did not expect challenges to state convictions (used to enhance federal convictions) to be brought under §2255.” Post, at 386 (opinion concurring in part). This is, of course, true. But it is also beside the point, as the subject of the §2255 motion in this circumstance is the enhanced federal sentence, not the prior state conviction. Justice Scalia, concurring in part. I agree with the Court that 28 U. S. C. §2255 (1994 ed., Supp. V) does not (with the Gideon exception, see Gideon v. Wainwright, 372 U.S. 335 (1963)) permit inquiry into whether a conviction later used to enhance a federal sentence was unconstitutionally obtained, and I agree with the Court’s reasoning so far as it goes. I have another reason for reaching that result, however, and one that prevents me from joining that portion" }, { "docid": "22778764", "title": "", "text": "the transcript from either plea colloquy in the record. In fact, he has admitted that the 1978 transcript is missing from the state court file. Cf. id., at 38, n. 3. Under these circumstances, it would be an almost Mile exercise for a district court to attempt to determine accurately what was communicated to petitioner more than two decades ago. With respeet to the concern for finality, petitioner argues that because he has served the complete sentences for his 1978 and 1981 convictions, the State would suffer little, if any, prejudice if those convictions were invalidated through a collateral challenge under §2255. Brief for Petitioner 24-26. To the contrary, even after a defendant has served the full measure of his sentence, a State retains a strong interest in preserving the convictions it has obtained. States impose a wide range of disabilities on those who have been convicted of crimes, even after their release. For example, in California, where petitioner committed his crimes, persons convicted of a felony may be disqualified from holding public office, subjected to restrictions on professional licensing, and barred from possessing firearms. See U. S. Dept, of Justice, Office of the Pardon Attorney, Civil Disabilities of Convicted Felons: A State-By-State Survey 29-32 (Oct. 1996). Further, each of the 50 States has a statute authorizing enhanced sentences for recidivist offenders. E. g., Cal. Penal Code Ann. § 667 (West 1999). See also Parke v. Raley, 506 U.S. 20, 26-27 (1992). At oral argument, petitioner suggested that invalidating a prior conviction on constitutional grounds for purposes of its use under the ACCA would have no effect beyond the federal proceeding. Tr. of Oral Arg. 8-10. Although that question is not squarely presented here, if a state conviction were determined to be sufficiently unreliable that it could not be used to enhance a federal sentence, the State’s ability to use that judgment subsequently for its own purposes would be, at the very least, greatly undermined. Thus, the State does have a real and continuing interest in the integrity of its judgments. B On the most fundamental level, petitioner attempts to" }, { "docid": "22778763", "title": "", "text": "omitted). A Petitioner contends that the Custis rule should not extend to §2255 proceedings because the concerns we articulated in Gustis are not present in the §2255 context. Brief for Petitioner 22-26. We disagree. First, a district court evaluating a §2255 motion is as unlikely as a district court engaged in sentencing to have the documents necessary to evaluate claims arising from long-past proceedings in a different jurisdiction. While petitioner is quite right that federal district courts are capable of evaluating fact-intensive constitutional claims raised by way of a habeas petition, id., at 22-23, institutional competence does not make decades-old state court records and transcripts any easier to locate. The facts of this case only reinforce our concern. For example, petitioner contends that he entered his 1978 and 1981 guilty pleas without a full understanding of the essential elements of the crimes with which he was charged, and therefore the resulting convictions violated due process. App. 40-42, 50-51. These claims by their nature require close scrutiny of the record below. Yet petitioner has not placed the transcript from either plea colloquy in the record. In fact, he has admitted that the 1978 transcript is missing from the state court file. Cf. id., at 38, n. 3. Under these circumstances, it would be an almost Mile exercise for a district court to attempt to determine accurately what was communicated to petitioner more than two decades ago. With respeet to the concern for finality, petitioner argues that because he has served the complete sentences for his 1978 and 1981 convictions, the State would suffer little, if any, prejudice if those convictions were invalidated through a collateral challenge under §2255. Brief for Petitioner 24-26. To the contrary, even after a defendant has served the full measure of his sentence, a State retains a strong interest in preserving the convictions it has obtained. States impose a wide range of disabilities on those who have been convicted of crimes, even after their release. For example, in California, where petitioner committed his crimes, persons convicted of a felony may be disqualified from holding public office, subjected" }, { "docid": "22778758", "title": "", "text": "Justice O’Connor delivered the opinion of the Court in part. In Custis v. United States, 511 U.S. 485 (1994), we addressed whether a defendant sentenced under the Armed Career Criminal Act of 1984 (ACCA), 18 U. S. C. § 924(e), could collaterally attack the validity of previous state convictions used to enhance his federal sentence. We held that, with the sole exception of convictions obtained in violation of the right to counsel, a defendant has no right to bring such a challenge in his federal sentencing proceeding. 511 U.S., at 487. We now consider whether, after the sentencing proceeding has concluded, the individual who was sentenced may challenge his federal sentence through a motion under 28 U. S. C. §2255 (1994 ed., Supp. V) on the ground that his prior convictions were unconstitutionally obtained. We hold that, as a general rule, he may not. There may be rare circumstances in which §2255 would be available, but we need not address the issue here. I In 1994, petitioner Earthy D. Daniels, Jr., was tried and convicted of being a felon in possession of a firearm in violation of 18 U. S. C. § 922(g)(1). The Government then sought to enhance his sentence under the ACCA. App. 4-5. The ACCA imposes a mandatory minimum 15-year sentence on anyone who violates § 922(g)(1) and who has three previous convictions for a violent felony or a serious drug offense. § 924(e)(1). Petitioner had been convicted in California in 1978 and 1981 for robbery, and in 1977 and 1979 for first degree burglary. Id., at 14. The District Court found petitioner to be an armed career criminal within the meaning of the ACCA and, after granting a downward departure, the District Court sentenced petitioner to 176 months. Id., at 14, 18. Had petitioner not been adjudged an armed career criminal, he would have received at most a 120-month sentence. 18 U. S. C. § 924(a)(2). On direct appeal, petitioner argued unsuccessfully that his two burglary convictions did not qualify as predicate offenses under the ACCA. See 86 F. 3d 1164 (CA9 1996) (table). Petitioner then" }, { "docid": "23533794", "title": "", "text": "Justice Ginsburg delivered the opinion of the Court. Petitioner James D. Logan pleaded guilty in a United States District Court to being a felon in possession of a firearm, in violation of 18 U. S. C. § 922(g)(1). Logan’s record as a recidivist, which included three relevant state convictions, led the District Court to impose a 15-year prison term, the minimum sentence mandated by the Armed Career Criminal Act (ACCA), 18 U. S. C. § 924(e)(1) (2000 ed., Supp. V). For ACCA sentence-enhancement purposes, a prior conviction may be disregarded if the conviction “has been expunged, or set aside,” or the offender “has been pardoned or has had civil rights restored.” §921(a)(20) (2000 ed.). None of Logan’s prior convictions have been expunged or set aside. Nor has he been pardoned for any past crime. And, bearing importantly on the instant petition, the three state-court convictions that triggered Logan’s ACCA-enhanced sentence occasioned no loss of civil rights. Challenging his enhanced sentence, Logan presents this question: Does the “civil rights restored” exemption contained in § 921(a)(20) encompass, and therefore remove from ACCA’s reach, state-court convictions that at no time deprived the offender of civil rights? We hold that the §921(a)(20) exemption provision does not cover the case of an offender who retained civil rights at all times, and whose legal status, postconviction, remained in all respects unaltered by any state dispensation. Section 921(a)(20) sets out postconviction events— expungement, set aside, pardon, or restoration of civil rights — that extend to an offender a measure of forgiveness, relieving him from some or all of the consequences of his conviction. Congress might have broadened the § 921(a)(20) exemption provision to cover convictions attended by no loss of civil rights. The national lawmakers, however, did not do so. Section 921(a)(20)’s failure to exempt convictions that do not revoke civil rights produces anomalies. But so does the extension of the § 921(a)(20) exemption that Logan advances. We are not equipped to say what statutory alteration, if any, Congress would have made had its attention trained on offenders who retained civil rights; nor can we recast §" }, { "docid": "22685733", "title": "", "text": "in our criminal justice system, do not alter or enlarge a prior sentence. If, as in this case, a person with a prior conviction chooses to commit a subsequent crime, he thereby becomes subject to the increased penalty prescribed for the second crime. This Court consistently has sustained repeat-offender laws as penalizing only the last offense committed by the defendant. E. g., Moore v. Missouri, 159 U. S. 673, 677 (1895); Oyler v. Boles, 368 U. S. 448, 451 (1962). Under Illinois law a second conviction for petty theft may be treated as a felony with a prison term. The sentence imposed upon petitioner was solely a penalty for the second theft. Moreover, petitioner’s argument ignores the significance of the constitutional validity of his first conyiction. Petitioner questions neither the factual accuracy nor the legality of that conviction. In order to accept his argument, the Court creates a special class of uncounseled misdemeanor convictions. Those judgments are valid for the purposes of their own penalties as long as the defendant receives no prison term. But the Court holds that these convictions are invalid for the purpose of enhancing punishment upon a subsequent misdemeanor conviction. By creating this new hybrid, the Court departs from the position it took after Gideon v. Wainwright, 372 U. S. 335 (1963), established the right to counsel in felony cases. Following Gideon, the Court consistently held that because an uncounseled felony conviction was constitutionally invalid— and therefore void — it could not be put to other uses in court. In Burgett v. Texas, 389 U. S. 109, 115 (1967), the Court stated that an uncounseled felony conviction could not be used in a later trial to enhance punishment under a recidivist statute. Loper v. Beto, 405 U. S. 473, 483 (1972), barred impeachment of a defendant with such a felony conviction, and United States v. Tucker, 404 U. S. 443 (1972), held that a sentencing judge cannot consider a prior uncounseled felony. Misdemeanor convictions, however, have been treated differently. Argerdnger held that in misdemeanor cases the right to counsel applies only if the prosecution may “end" }, { "docid": "854940", "title": "", "text": "BARBARA MILANO KEENAN, Circuit Judge: Robert Winston was convicted in 2002 on a federal firearm charge and was sentenced to serve a term of 275 months’ imprisonment. His sentence included an enhancement under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(1), based in part on his prior conviction for the Virginia crime of common law robbery (Virginia common law robbery) as a qualifying predicate “violent felony.” Winston filed a motion under 28 U.S.C. § 2255 for post-conviction relief, contending that his robbery conviction no longer qualified as a predicate offense under the ACCA after the Supreme Court’s decision in Johnson v. United States, — U.S.—, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015) (Johnson II), which invalidated a portion of the ACCA’s definition of “violent felony.” The district court denied Winston’s motion, concluding that Virginia common law robbery continues to qualify as a violent felony because the crime has as an element the “use, attempted use, or threatened use of physical force against the person of another.” 18 U.S.C. § 924(e)(2)(B)(i). The court also rejected the government’s argument that Winston was barred from obtaining post-conviction relief on procedural grounds. Upon our review, we agree with the district court’s rejection of the government’s procedural arguments, because Winston sufficiently has shown that he relied on a new rule of constitutional law. However, we disagree with the district court’s substantive conclusion and hold that Winston’s conviction for Virginia common law robbery does not constitute a violent felony under the ACCA, because the full range of conduct covered by the Virginia crime does not necessarily include the use of “force capable of causing physical pain or injury to another person.” See Johnson v. United States, 559 U.S. 133, 140, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010) (,Johnson I)- We therefore vacate the judgment of the district court, and remand the case for further proceedings. I. In 2002, Winston was' convicted of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). In determining Winston’s sentence, the district court concluded that Winston qualified as an armed career criminal under" }, { "docid": "23533796", "title": "", "text": "921(a)(20) in Congress’ stead. I Federal law generally prohibits the possession of a firearm by a person convicted of “a crime punishable by imprisonment for a term exceeding one year.” 18 U. S. C. § 922(g)(1). Ordinarily, the maximum felon-in-possession sentence is ten years. See § 924(a)(2). If the offender’s prior criminal record includes at least three convictions for “violent felon[ies]” or “serious drug offense[s],” however, the maximum sentence increases to life, and ACCA mandates a minimum term of 15 years. § 924(e)(1) (2000 ed., Supp. V). Congress defined the term “violent felony” to include specified crimes “punishable by imprisonment for a term exceeding one year.” § 924(e)(2)(B) (2000 ed.). An offense classified by a State as a misdemeanor, however, may qualify as a “violent felony” for ACCA-enhancement purposes (or as a predicate for a felon-in-possession conviction under § 922(g)) only if the offense is punishable by more than two years in prison. § 921(a)(20)(B). In Dickerson v. New Banner Institute, Inc., 460 U. S. 103 (1983), we held that a State’s expungement of a conviction did not nullify the conviction for purposes of the firearms disabilities Congress placed in §§ 922(g)(1) and (h)(1). In so ruling, we noted that our decision would ensure greater uniformity in federal sentences. See id., at 119-120. Provisions for expungement “var[ied] widely from State to State,” we observed, id., at 120, and yielded “nothing less than a national patchwork,” id., at 122. In the Firearms Owners’ Protection Act (FOPA), 100 Stat. 449, Congress amended §921(a)(20) in response to Dickerson’s holding that, for purposes of federal firearms disabilities, state law did not determine the present impact of a prior conviction. The amended provision excludes from qualification as a “crime punishable by imprisonment for a term exceeding one year” (or a misdemeanor under state law punishable by more than two years in prison): “Any conviction which has been expunged, or set aside or for which a person has been pardoned or has had civil rights restored ... unless such pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess," }, { "docid": "22778765", "title": "", "text": "to restrictions on professional licensing, and barred from possessing firearms. See U. S. Dept, of Justice, Office of the Pardon Attorney, Civil Disabilities of Convicted Felons: A State-By-State Survey 29-32 (Oct. 1996). Further, each of the 50 States has a statute authorizing enhanced sentences for recidivist offenders. E. g., Cal. Penal Code Ann. § 667 (West 1999). See also Parke v. Raley, 506 U.S. 20, 26-27 (1992). At oral argument, petitioner suggested that invalidating a prior conviction on constitutional grounds for purposes of its use under the ACCA would have no effect beyond the federal proceeding. Tr. of Oral Arg. 8-10. Although that question is not squarely presented here, if a state conviction were determined to be sufficiently unreliable that it could not be used to enhance a federal sentence, the State’s ability to use that judgment subsequently for its own purposes would be, at the very least, greatly undermined. Thus, the State does have a real and continuing interest in the integrity of its judgments. B On the most fundamental level, petitioner attempts to distinguish Custis as a decision only about the appropriate forum in which a defendant may challenge prior convictions used to enhance a federal sentence. The issue in Custis, according to petitioner, was “'where, not whether, the defendant could attack a prior conviction for constitutional infirmity.’” Brief for Petitioner 14 (quoting Nichols v. United States, 511 U.S. 738, 765 (1994) (Ginsburg, J., dissenting) (original emphasis deleted)). The appropriate forum for such a challenge, petitioner argues, at least where no other forum is available, is a federal proceeding under §2255. Brief for Petitioner 16. The premise underlying petitioner’s argument — that defendants may challenge their convictions for constitutional infirmity — is quite correct. It is beyond dispute that convictions must be obtained in a manner that comports with the Federal Constitution. But it does not necessarily follow that a §2255 motion is an appropriate vehicle for determining whether a conviction later used to enhance a federal sentence was unconstitutionally obtained. Our system affords a defendant convicted in state court numerous opportunities to challenge the constitutionality of his" }, { "docid": "19784737", "title": "", "text": "automatically restore a felon’s right to hold statutory offices, such as mayor. But the United States has not argued that this omission is significant, so we need not decide whether a firearms reservation is essential in a notice announcing the restoration of the civil right to hold constitutional, but not statutory, public offices. If someone asks Buchmeier “have you been convicted of a felony?” he must answer “yes”; restoration of civil rights differs from expungement as a matter of Illinois law. But because the state sent Buchmeier a document stating that his principal civil rights have been restored, while neglecting to mention the continuing firearms disability, the final sentence of § 921(a)(20) means that his burglary convictions do not count for federal purposes. He is entitled to be resentenced. Vacated and Remanded SYKES, Circuit Judge, with whom MANTON, EVANS, and TINDER, Circuit Judges, join, dissenting. Shane Buchmeier served time in an Illinois prison for eight felony burglary convictions and successfully completed a term of parole supervision. Six months later he purchased several guns stolen from the home of an unsuspecting vacationer. For this he was convicted in federal court of two counts of possession of a firearm by a felon, see 18 U.S.C. § 922(g)(1), and two counts of receiving stolen firearms, see id. § 922(j). As my colleagues explain, Buchmeier’s sentence was enhanced under the Armed Career Criminal Act (“ACCA”) based on his Illinois burglary convictions; his sentence of 188 months was eight months longer than the mandatory minimum under the ACCA and well above the advisory sentencing guidelines range that would have applied if his burglary priors weren’t counted. After losing his direct appeal, he brought this collateral attack under 28 U.S.C. § 2255 claiming his lawyer was ineffective for failing to challenge the application of the ACCA recidivist enhancement. The ACCA mandates a prison term of not less than fifteen years for a felon who possesses a firearm after accumulating three or more convictions for a serious drug offense or a violent felony. See 18 U.S.C. § 924(e)(1). A “violent felony” is a crime that: (1) is" }, { "docid": "23533804", "title": "", "text": "E. g., Reply Brief 8 (“[individuals who have committed more serious crimes than Petitioner may nonetheless have their rights restored, whereas misdemeanants who never lost their rights must suffer enhanced sentencing.”). Logan urges that this result — treating those who never lost their civil rights more harshly than those who lost, then regained, those rights — is not merely anomalous; it rises to the level of the absurd, particularly in States where restoration of civil rights is automatic and occurs immediately upon release from prison. See Caron, 524 U. S., at 313 (automatic restoration of rights qualifies for § 921(a)(20)’s exemption). Logan’s argument, we note, overlooks § 921(a)(20)’s “unless” clause. Under that provision, an offender gains no exemption from ACCA’s application through an expungement, set-aside, pardon, or restoration of civil rights if the dispensation “expressly provides that the [offender] may not ship, transport, possess, or receive firearms.” Many States that restore felons’ civil rights (or accord another measure of forgiveness) nonetheless impose or retain firearms disabilities. See Brief for United States 30 (citing, inter alia, La. Rev. Stat. Ann. § 14:95.1(C) (West Supp. 2007), under which felons’ firearms disabilities are lifted only after ten years and only if no further felony convictions intervene). We further note that Wisconsin has addressed, and prospectively eliminated, the anomaly Logan asserts he encountered: Wisconsin no longer punishes misdemeanors by more than two years of imprisonment, and thus no longer has any misdemeanors that qualify as ACCA predicates. See supra, at 29, n. 2. One can demur to Logan’s argument that a literal reading of § 921(a)(20) could produce anomalous results, for the resolution he proposes — reading into the exemption convictions under which civil rights are retained — would correct one potential anomaly while creating others. See McGrath, 60 F. 3d, at 1009. Under Logan’s proposed construction, the most dangerous recidivists in a State that does not revoke any offender’s civil rights could fall within § 921(a)(20)’s exemption. For example, Maine does not deprive any offenders of their civil rights. See Lodging for National Association of Criminal Defense Lawyers et al. as Amici Curiae" }, { "docid": "22140281", "title": "", "text": "Government in its brief to this Court and again at oral argument all but conceded that the vacatur is a fact supporting a claim. See Brief for United States 33; Tr. of Oral Arg. 13. Seeking a new rationale to imprison petitioner for an additional eight years on the basis of a prior Georgia conviction all of us know to be void, the Government defends the Court of Appeals’ judgment on an alternative ground: Federal law requires diligence on the part of the defendant not only in bringing the vacatur to the attention of the federal court but also in commencing state proceedings to obtain the vacatur in the first place. According to the Government, petitioner’s diligence should be measured from the time a petitioner could have obtained a vacatur, i. e., as soon as the legal basis for vacatur existed. See Brief for United States 32-34. Although the Court adopts the Government’s argument in part, it comes up with a date of its own choosing from which to measure a petitioner’s diligence. The Court is quite correct, in my view, to hold that the state-court order of vacatur itself is the critical fact which begins the Antiterrorism and Effective Death Penalty Act of 1996’s 1-year limitations period. §101, 110 Stat. 1217. Ante, at 309. It is an accepted use of the law’s vocabulary to say that the entry or the setting aside of a judgment is a fact. Ante, at 307. An order vacating a judgment is a definite and significant fact of litigation history. So the Court is on firm ground to say a state judgment of vacatur begins the 1-year limitations period. Even aside from the textual support for petitioner’s position, our opinions in Custis v. United States, 511 U. S. 485 (1994), and Daniels v. United States, 532 U. S. 374 (2001), were decided on the understanding that Congress did not expect federal sentences to be enhanced irrespective of the validity of the state conviction relied upon for the enhancement. Ante, at 305-306. Those cases suggest that the proper procedure for reducing a federal sentence enhanced" }, { "docid": "22411989", "title": "", "text": "Missouri, 159 U. S. 673, 678 (1895) (“[T]he State may undoubtedly provide that persons who have been before convicted of crime may suffer severer punishment for subsequent of-fences than for a first offence”). Justice Scalia insists that the recidivism enhancement the Court confronts here in fact constitutes an element of petitioner’s offense. His dissent addresses an issue that was neither considered by the state courts nor discussed in petitioner’s brief before this Court. In any event, Justice Scalia acknowledges, post, at 741, that his argument is squarely foreclosed by our decision in Almendarez-Torres v. United States, 523 U. S. 224 (1998). One could imagine circumstances in which fundamental fairness would require that a particular fact be treated as an element of the offense, see post, at 738 (Scalia, J., dissenting), but there are also cases in which fairness calls for defining a fact as a sentencing factor. A defendant might not, for example, wish to simultaneously profess his innocence of a drug offense and dispute the amount of drugs allegedly involved. Cf. Gregg v. Georgia, 428 U. S. 153, 190-195 (1976) (joint opinion of Stewart, Powell, and Stevens, JJ.) (discussing the benefits of bifurcated proceedings in capital eases). In part for that reason, the Court has rejected an absolute rule that an enhancement constitutes an element of the offense any time that it increases the maximum sentence to which a defendant is exposed. See Almendarez-Torres, supra. Under California law, the maximum sentence applicable to a first offender who uses a minor to sell drugs is 7 years, and a judge may double that sentence to 14 years where the offender has previously been convicted of a qualifying felony. See Cal. Health & Safety Code Ann. § 11361(a) (West 1991). That increase falls well within the range that the Court has found to be constitutionally permissible. See Almendarez-Torres, supra (upholding a potential 18-year increase to a 2-year sentence). Thus, the sentencing determination here did not place petitioner in jeopardy for an “offense.” Sentencing decisions favorable to the defendant, moreover, cannot generally be analogized to an acquittal. We have held that where" } ]

[ { "docid": "15478412", "title": "", "text": "Greer v. Miller, 483 U.S. 756, 765, 107 S.Ct. 3102, 3109, 97 L.Ed.2d 618 (1987) (quoting United States v. Bagley, 473 U.S. 667, 676, 105 S.Ct. 3375, 3380, 87 L.Ed.2d 481 (1985)). In evaluating whether a prosecutor’s question deprived petitioner of a fundamentally fair trial, it is important to “ ‘place th[e] remarfk] in context.’ ” Id. 483 U.S. at 766, 107 S.Ct. at 3109 (quoting Darden v. Wainwright, 477 U.S. 168, 179, 106 S.Ct. 2464, 2470, 91 L.Ed.2d 144 (1986)); see United States v. Friedman, 909 F.2d 705, 709 (2d Cir.1990). The severity of the misconduct, curative measures, and the certainty of conviction absent the misconduct are all relevant to the inquiry. Friedman, 909 F.2d at 709; see also United States v. Biasucci, 786 F.2d 504, 514 (2d Cir.), cert. denied, 479 U.S. 827, 107 S.Ct. 104, 93 L.Ed.2d 54 (1986). Here, the prosecutor’s attempt to emphasize the petitioner’s “other crimes” in the face of the court’s prior ruling was improper misconduct. See United States v. Westbo, 576 F.2d 285, 290-92 (10th Cir.1978), cited in United States v. Turkish, 623 F.2d 769, 777 (2d Cir.1980). We can discern no motive in the prosecution’s placing Officer Smith on the stand other than an attempt to place before the jury other crimes evidence previously ruled inadmissible. Detective Rosenthal had re-arrested petitioner for the Bowen murder, not Officer Smith, and by the time the latter was sworn in, the court had ruled off-limits the circumstances surrounding Smith’s arrest of petitioner. Nonetheless, we conclude that the misconduct did not deny petitioner a fundamentally fair trial. First, there is no claim that this prosecutorial misconduct was either “pervasive” or part of a “persistent” trial strategy, United States v. Weiss, 914 F.2d 1514, 1524 (2d Cir.1990); Floyd, 907 F.2d at 355 (“pattern” of misconduct); United States v. Tutino, 883 F.2d 1125, 1136 (2d Cir.1989) (minimal risk of influencing jury through one inappropriate remark); Biasucci, 786 F.2d at 514 (isolated and infrequent outbursts not prejudicial). Petitioner points only to this single incident. Second, the trial judge responded promptly to the objections, twice instructing the jury to" } ]

[ { "docid": "13644383", "title": "", "text": "to induce a level of fear in the jurors so as to guarantee a guilty verdict. We review improper prosecutorial remarks for harmless error. See Fed.R.Crim.P. 52(a). The applicable standard for harmless error in this context is whether it is more probable than not that the misconduct affected the jury’s verdict. United States v. Flake, 746 F.2d 535, 541 (9th Cir.1984), cert. denied, 469 U.S. 1225, 105 S.Ct. 1220, 84 L.Ed.2d 360 (1985). While commentary on a defendant’s future dangerousness may be proper in the context of sentencing, it is highly improper during the guilt phase of a trial. The prosecutor’s suggestions that Mendiola would walk out of the courtroom right behind them, if acquitted, and presumably retrieve the missing murder weapon was particularly improper because the prosecutor knew that his witness, the informer Reyes, was responsible for the missing gun. Additionally, the case against Mendiola was not strong. Absent the confessions and photographs of Mendiola, which were coerced and therefore unreliable, the only evidence against Mendiola was the testimony of Reyes, a witness with an established criminal history. There was no physical evidence linking Mendiola to the crimes. Under such circumstances, prejudice against Mendiola’s case due to the improper argument of the prosecuting attorney was highly probable. See Berger, 295 U.S. at 88-89, 55 S.Ct. at 633 (when case is not strong, prejudice is highly probable); cf. United States v. Monaghan, 741 F.2d 1434, 1443 (D.C.Cir.1984), (improper remarks not reversible error because evidence was overwhelming), cert. denied, 470 U.S. 1085, 105 S.Ct. 1847, 85 L.Ed.2d 146 (1985). A prosecutor’s use of illegitimate means to obtain a verdict brings his office and our system of justice into disrepute. AFFIRMED IN PART; REVERSED IN PART; AND REMANDED. . Reyes had also testified against Mendiola at Mendiola’s other murder trial. . An appeal is pending if \"the final controlling mandate of the appellate tribunal having jurisdiction of the appeal has not been received by the Commonwealth Trial Court.” Pub.L. 6-25, § 3109(c). . We note that upon remand from the appellate division, both the government and defense psychologists opined that Mendiola was" }, { "docid": "17152395", "title": "", "text": "Prosecutorial Misconduct Claims Appellants Derrin Perkins and Andre Williams contend that their convictions must be reversed because of prosecutorial misconduct during opening argument to the jury. The touchstone of a prosecutorial misconduct claim is prejudice: the court must consider “the probable effect the prosecutor’s [statements] would have on the jury’s ability to judge the evidence fairly.” United States v. Young, 470 U.S. 1, 12, 105 S.Ct. 1038, 1044, 84 L.Ed.2d 1 (1985). To determine whether improper remarks by the prosecutor have substantially prejudiced a defendant’s trial, the court looks to “the severity of the misconduct, the measures adopted to cure the misconduct, and the certainty of conviction absent the improper remarks.” Williams-Davis, 90 F.3d at 507 (quoting United States v. Monaghan, 741 F.2d 1434, 1443 (D.C.Cir.1984), cert. denied, 470 U.S. 1085, 105 S.Ct. 1847, 85 L.Ed.2d 146 (1985)). As to both appellants, the prosecutor’s opening statement to the jury stated that the government would present evidence that would implicate the defendant in certain criminal activities, no evidence of which was ultimately produced at trial. Regarding Williams, the prosecutor told the jury that the government would show that he was involved in the murder of Joel Mays, a drug operator who was a rival of the R Street Crew. The murder of Joel Mays was charged solely as a racketeering act in the RICO counts in the indictment. When the government failed to present any evidence relating to this murder, the district court dismissed the racketeering act at the close of the government’s case. Williams contends on appeal that he was prejudiced by the government’s statement that it would present evidence to show his role in the Joel Mays murder when no such evidence was introduced at trial. In denying Williams’ motions for a mistrial, the district court found that there was no evidence of bad faith by the prosecutor, who explained that he was unable to present the evidence because the witness upon whom he was relying was uncertain whether Andre Williams or Darryl Williams was present at the murder. The district court also noted that a substantial period of" }, { "docid": "17152394", "title": "", "text": "be included in the jury instructions. Perkins’ requested instruction misstated the law on buyerseller relationships in narcotics conspiracies, and hence the district court properly refused to include it in the instructions to the jury. Instead, the district court properly instructed the jury on the role of buyer-seller relationships in narcotics conspiracies. Perkins proposed that the jury be told that “a simple buyer-seller relationship alone does not furnish the requisite evidence of a conspiratorial agreement,” without also being advised that a buyer may be found to be a member of a conspiracy if he is aware of the structure of the conspiracy and the participation of third parties, and if he profits from and intends to further the conspiracy. See, e.g., Sobamowo, 892 F.2d at 94; Bascaro, 742 F.2d at 1359. In addition, the third paragraph of Perkins’ requested instruction was addressed fully in other instructions given to the jury. Accordingly, because Per- kins’ theory of defense was properly presented in the jury instructions, he fails to show reversible error. C. Andre Williams’ and Derrin Perkins’ Prosecutorial Misconduct Claims Appellants Derrin Perkins and Andre Williams contend that their convictions must be reversed because of prosecutorial misconduct during opening argument to the jury. The touchstone of a prosecutorial misconduct claim is prejudice: the court must consider “the probable effect the prosecutor’s [statements] would have on the jury’s ability to judge the evidence fairly.” United States v. Young, 470 U.S. 1, 12, 105 S.Ct. 1038, 1044, 84 L.Ed.2d 1 (1985). To determine whether improper remarks by the prosecutor have substantially prejudiced a defendant’s trial, the court looks to “the severity of the misconduct, the measures adopted to cure the misconduct, and the certainty of conviction absent the improper remarks.” Williams-Davis, 90 F.3d at 507 (quoting United States v. Monaghan, 741 F.2d 1434, 1443 (D.C.Cir.1984), cert. denied, 470 U.S. 1085, 105 S.Ct. 1847, 85 L.Ed.2d 146 (1985)). As to both appellants, the prosecutor’s opening statement to the jury stated that the government would present evidence that would implicate the defendant in certain criminal activities, no evidence of which was ultimately produced at trial. Regarding" }, { "docid": "13644384", "title": "", "text": "an established criminal history. There was no physical evidence linking Mendiola to the crimes. Under such circumstances, prejudice against Mendiola’s case due to the improper argument of the prosecuting attorney was highly probable. See Berger, 295 U.S. at 88-89, 55 S.Ct. at 633 (when case is not strong, prejudice is highly probable); cf. United States v. Monaghan, 741 F.2d 1434, 1443 (D.C.Cir.1984), (improper remarks not reversible error because evidence was overwhelming), cert. denied, 470 U.S. 1085, 105 S.Ct. 1847, 85 L.Ed.2d 146 (1985). A prosecutor’s use of illegitimate means to obtain a verdict brings his office and our system of justice into disrepute. AFFIRMED IN PART; REVERSED IN PART; AND REMANDED. . Reyes had also testified against Mendiola at Mendiola’s other murder trial. . An appeal is pending if \"the final controlling mandate of the appellate tribunal having jurisdiction of the appeal has not been received by the Commonwealth Trial Court.” Pub.L. 6-25, § 3109(c). . We note that upon remand from the appellate division, both the government and defense psychologists opined that Mendiola was incompetent to stand trial, yet the trial court adjudged him competent and ordered him arraigned on the original charges. We are troubled by this assertion. The conviction of an accused who is legally incompetent violates due process. Pate v. Robinson, 383 U.S. 375, 378, 86 S.Ct. 836, 838, 15 L.Ed.2d 815 (1966). A defendant is competent to stand trial if he has a rational and factual understanding of the proceedings and has sufficient present ability to consult with and assist counsel. See Drope v. Missouri, 420 U.S. 162, 172, 95 S.Ct. 896, 904, 43 L.Ed.2d 103 (1975); Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960). Moreover, the defendant must be competent to stand trial at the time of the trial; a competency determination may not be based on out-of-date psychological evaluations. See Dusky, 362 U.S. at 403, 80 S.Ct. at 789. . Mendiola's appeal was filed on January 24, 1991, but was not date stamped until January 28, 1991. Under 9th Cir.R. 26-1, the deadline for filing appeals from" }, { "docid": "17464247", "title": "", "text": "illustrations of the point made above may be found in other contexts. For example, while the prosecution may not attempt to bolster the credibility of its law enforcement witnesses by emphasizing their status as government officers, see United States v. Marquez, 462 F.2d 893, 896 (2d Cir.1972), and may not urge the jury to convict the defendant in order to deter future lawbreaking, see United States v. Monaghan, 741 F.2d 1434, 1441 (D.C.Cir.1984), cert. denied, 470 U.S. 1085, 105 S.Ct. 1847, 85 L.Ed.2d 146 (1985), the defendant is not entitled to specific advisory instructions on such matters, see United States v. Wright, 542 F.2d 975, 989 (7th Cir.1976), cert. denied, 429 U.S. 1073, 97 S.Ct. 810, 50 L.Ed.2d 790 (1977). . Admittedly, these cases involve a mistaken jury instruction rather than a misstatement of the law by counsel. Ordinarily, misstatements by counsel have the potential for less prejudice than misstatements of the law by the judge. Flowever, here the judge’s refusal twice to correct the prosecutor’s misstatements when publicly requested to do so gave such statements some appearance of judicial approval. . The jury instructions were read to the jury before closing arguments were made. . The dissent cites an earlier comment by defense counsel to the effect that the prosecution had been presuming defendant’s guilt all along. We cannot agree that this innocuous expression of defense paranoia in any way invited a misstatement of the presumption of innocence to somehow \"right the scales.” See generally United States v. Young, 470 U.S. 1, 12-13, 105 S.Ct. 1038, 1045, 84 L.Ed.2d 1 (1985). BRORBY, Circuit Judge, dissenting. The majority bases its analysis of the prosecutor’s remarks on the theory that such comments, which attempt to undermine the defendant’s presumption of innocence, amount to a deprivation of a “specific constitutional right,” (Per Curiam Opinion at 4) thereby warranting habeas relief unless the improper argument is shown to be “harmless beyond a reasonable doubt.” (Per Curiam at 7.) The majority’s characterization thus eliminates the inquiry used for most prosecutorial impropriety: whether the comment rendered defendant’s trial “so fundamentally unfair as to deny him" }, { "docid": "15172961", "title": "", "text": "fair to the IC and appellant, I think we must look at the question just that way. As the Majority correctly points out, where, as here, timely objection is made, we reverse a conviction on the basis of an improper closing argument only if it “sufficiently prejudiced appellant^] to call for reversal.” United States v. Fowler, 608 F.2d 2, 12 (D.C.Cir.1979) (quoting Gaither v. United States, 413 F.2d 1061, 1079 (D.C.Cir.1969)). Of course, the circular phrase “sufficiently prejudiced ... to call for reversal” is no help at all to an appellate court trying to decide in a particular case whether there was enough prejudice to reverse. The Supreme Court once explained the proper inquiry as whether we can say, “with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error____ [I]f one is left in grave doubt, the conviction cannot stand.” Kotteakos v. United States, 328 U.S. 750, 765, 66 S.Ct. 1239, 1248, 90 L.Ed. 1557 (1946). And while the existence of that “grave doubt” is the dispositive question, in this context, as the Majority notes, we have traditionally examined four factors to help us answer it: (1) the closeness of the case, (2) the centrality of the issue affected by the error, (3) the steps taken to mitigate the effects of the error, and (4) the severity of the misconduct. See Fowler, 608 F.2d at 12 (quoting Gaither, 413 F.2d at 1079); United States v. Monaghan, 741 F.2d 1434, 1443 (D.C.Cir.1984), cert. denied, 470 U.S. 1085, 105 S.Ct. 1847, 85 L.Ed.2d 146 (1985); United States v. Andrade, 788 F.2d 521, 530-31 (8th Cir.), cert. denied sub nom. Riley v. United States, 479 U.S. 963, 107 S.Ct. 462, 93 L.Ed.2d 408 (1986). It is in the weighing of these factors that I see the issue differently than the Majority does. I consider the improper comments in the IC’s closing argument to be egregious prosecutorial misconduct because they were deliberate rather than inadvertent. The Majority raises the possibility that the IC’s statements were “slips of the" }, { "docid": "11722396", "title": "", "text": "failure of the defendant to request a nondiscussion order, we decline to find that the prosecutor’s contact violated the Confrontation Clause, the Right to Counsel, or due process. See United States v. DeJongh, 937 F.2d 1, 3 (1st Cir.1991) (“We are aware of no rule or ethical principle, in the absence of a court order, that a prosecutor should refrain from conferring with a government witness before the start of cross-examination”) (emphasis added); see also United States v. Malik, 800 F.2d 143, 149 (7th Cir.1986) (recess conversation between prosecutor and government witness did not warrant reversal where that conversation was known to defense counsel, defense counsel had an opportunity to cross-examine the witness, and the prosecutor did no more than ask the witness if he wanted to correct anything in his testimony). 2. Prosecutorial Conduct during Summation Minier-Contreras argues that the prosecutor argued facts not in evidence during his rebuttal summation. To prevail on this claim, Minier-Contreras must demonstrate (1) that the prosecutor’s remarks were improper and (2) that the remarks, taken in the context of the entire trial, resulted in substantial prejudice. United States v. LaMorte, 950 F.2d 80, 83 (2d Cir.1991), cert. denied, — U.S. -, 112 S.Ct. 1938, 118 L.Ed.2d 544 (1992); United States v. Tutino, 883 F.2d 1125, 1136 (2d Cir.1989) (citing United States v. Young, 470 U.S. 1, 11-12, 105 S.Ct. 1038, 1044-45, 84 L.Ed.2d 1 (1985)), cert. denied, 493 U.S. 1081, 110 S.Ct. 1139, 107 L.Ed.2d 1044 (1990); see also United States v. Myerson, 18 F.3d 153, 161 (2d Cir.1994); United States v. Rosa, 17 F.3d 1531, 1548-49 (2d Cir.1994). Although the prosecutor did commit some errors during the course of summation, we find that these errors did not result in substantial prejudice to Minier-Contreras. Three of the comments of which Minier-Contreras complains were not improper. First, Minier-Contreras argues that the following statement was improper: “[tjhis case isn’t about the two drug exhibits ... this conspiracy involved a lot more cocaine.” Minier-Contreras contends that this statement argued facts not in evidence. Although only a small amount of cocaine was seized during the raid, the" }, { "docid": "15172799", "title": "", "text": "be presumed that no rational jury could find those facts without also finding that ultimate fact, making those findings is functionally equivalent to finding the element required to be presumed” and the error is harmless.). In light of North’s admissions at trial, we believe the judge’s error in his instruction on Count 6 properly comes under a harmless error analysis that reveals no prejudice to North. We therefore affirm North’s conviction on Count 6. VI. Closing Argument North contends that certain comments made by the IC to the jury during closing arguments were improper and mandate reversal of his convictions. In particular, North complains about the IC’s comparison of his conduct to Adolf Hitler’s, and abput the IC’s statement that Richard Secord and Albert Hakim made a “killing” from arms sales to Iran and the Contras, despite the absence of any evidence in the record concerning the amount of their profits. Although both of the prosecutor’s remarks were clearly improper, we find that neither was sufficiently prejudicial to North as to warrant the reversal of any or all of his convictions. A. Legal Standard A prosecutor may not make “statements calculated to arouse the passions or prejudices of the jury,” United States v. Monaghan, 741 F.2d 1434, 1440 (D.C.Cir.1984), cert. denied, 470 U.S. 1085, 105 S.Ct. 1847, 85 L.Ed.2d 146 (1985), or “statements of fact to the jury not supported by proper evidence introduced during trial,” United States v. Perholtz, 842 F.2d 343, 360 (D.C.Cir.) (quoting Gaither v. United States, 413 F.2d 1061, 1079 (D.C.Cir.1969)), cert. denied, 488 U.S. 821, 109 S.Ct. 65, 102 L.Ed.2d 42 (1988). When an objection is timely made, such remarks, while improper, are cause for reversal only if they “sufficiently prejudiced” the defendant. United States v. Fowler, 608 F.2d 2, 12 (D.C.Cir.1979) (quoting Gaither, 413 F.2d at 1079). We have generally looked to three factors in determining whether improper remarks by the prosecutor sufficiently prejudiced a defendant: “the closeness of the case, the centrality of the issue affected by the error, and the steps taken to mitigate the effects of the error.” Fowler, 608 F.2d" }, { "docid": "15172964", "title": "", "text": "(no suggestion of deliberate misconduct); United States v. Monaghan, 741 F.2d 1434 (D.C.Cir.1984) (same), cert. denied, 470 U.S. 1085, 105 S.Ct. 1847, 85 L.Ed.2d 146 (1985); United States v. Modica, 663 F.2d 1173, 1185 n. 7 (2d Cir.1981) (“improper remarks ... were not instances of deliberate misconduct.”), cert. denied, 456 U.S. 989, 102 S.Ct. 2269, 73 L.Ed.2d 1284 (1982). The Majority opinion appears to hold that a single “misstatement” in closing argument cannot constitute severe prosecutorial misconduct. See Maj. Op. at 397. Perhaps that is the proper approach for improper arguments that are indeed “misstatements,” but intentionally improper arguments seem to me to approach misconduct that is per se severe. To be sure, as the Majority points out, the Supreme Court has said that, absent special circumstances, “[ijsolated passages of a prosecutor’s argument, billed in advance to the jury as a matter of opinion not of evidence, do not reach the same proportions [as the consistent and repeated misrepresentation of a dramatic exhibit in evidence.]” Donnelly v. DeChristoforo, 416 U.S. 637, 646, 94 S.Ct. 1868, 1873, 40 L.Ed.2d 431 (1974) (internal quotations omitted). The Court im mediately goes on, however, to explain that: Such arguments, like all closing arguments of counsel, are seldom carefully constructed in toto before the event; improvisation frequently results in syntax left imperfect and meaning less than crystal clear. While these general observations in no way justify prosecutorial misconduct, they do suggest that a court should not lightly infer that a prosecutor intends an ambiguous remark to have its most damaging meaning ... Id. at 646-47, 94 S.Ct. at 1873. The impropriety in this case had nothing to do with imperfect syntax or less than crystal clear meaning — instead, the prosecutor coolly crafted a jury argument cleverly designed to convey information to the jury that he had told the District Judge would help establish “a powerful motive on both sides,” but had, as a strategic matter, agreed not to put into evidence. That is severe misconduct. The Majority also places significant weight on the curative measures that the District Judge supposedly took to mitigate the" }, { "docid": "22352269", "title": "", "text": "civic duty. Because defendants failed to object to these remarks when they were voiced, we review them only for plain error. See Smith, 982 F.2d at 682. Under that regime, we are constrained to stay our hand unless improper remarks “so poisoned the well that the trial’s outcome was likely affected.” United States v. Mejia-Lozano, 829 F.2d 268, 274 (1st Cir.1987); accord United States v. Mateos-Sanchez, 864 F.2d 232, 240-41 (1st Cir.1988). None of the quoted statements comprise plain error in the setting of this trial. 1. Protection of the Community. The first statement, see supra note 21, went too far: prosecutors overreach when they ask jurors to function as de facto vigilantes. Yet, importantly, cf. United States v. Lester, 749 F.2d 1288, 1301 (9th Cir.1984), there is no sign that the buzznacking about the Se-pulveda organization resuming operations, while gratuitous, was part of a pattern of remarks specifically intended to inflame the jury. The reference was not prominently featured in the summation; rather, it was prefatory, serving to introduce a recitation of evidence that had been presented at the trial. When, as in this ease, the evidence of defendants’ guilt is strong, courts should be very reluctant to find plain error in misguided rhetoric. See United States v. Santana-Camacho, 833 F.2d 371, 373-74 (1st Cir.1987); Mejia-Lozano, 829 F.2d at 274; United States v. Capone, 683 F.2d 582, 586-87 (1st Cir.1982). So here: we think it is wildly improbable, given the weight of the evidence, that what we read as an isolated, relatively subdued appeal for law enforcement affected the trial’s outcome. Consequently, the resumption-of-business remarks do not furnish a basis for reversal. See United States v. Smith, 918 F.2d 1551, 1562-63 (11th Cir.1990); Hernandez, 891 F.2d at 527; United States v. Monaghan, 741 F.2d 1434, 1441 n. 30 (D.C.Cir.1984), cert. denied, 470 U.S. 1085, 105 S.Ct. 1847, 85 L.Ed.2d 146 (1985). 2. The War on Drugs. A somewhat different set of considerations informs our analysis of the next two passages. Defense attorneys introduced the phrase “war on drugs” and used it repeatedly during their opening statements and, later, during" }, { "docid": "2145444", "title": "", "text": "difficulty of law enforcement authorities being able to find out about it. And I suggest to you that is the answer as to where the money is, or went. The question presented is whether the prosecutor’s remarks constitute error, and if so, given the lack of objection at trial, whether they amount to “plain error.” In view of the broad discretion of the trial judge in regulating cross-examination, no error was committed in the cross-examination of Jackson. In light of Dillon's prior testimony on payments to Jackson and Fletcher, Jackson’s direct testimony about trips to the Islands to invest in real estate, his statement concerning his presence with Fletcher in banks on the Islands, and the prosecutor’s information about Fletcher’s account, the questions were based on a “well reasoned suspicion,” and do not amount to an “improbable flight of fancy.” United States v. Pugh, 436 F.2d 222, 225 (D.C.Cir.1970); see also United States v. Bent, 707 F.2d 1190, 1194 (11th Cir.1983) (where defendant implied that pri- or trips into the United States were made for legitimate purpose, it was proper to cross-examine concerning alleged past involvement in drug smuggling), cert. denied, 466 U.S. 960, 104 S.Ct. 2174, 80 L.Ed.2d 557 (1984). Turning to the issue of the closing remarks, it has been established that a prosecutor should not make “statements of fact to the jury not supported by proper evidence introduced during trial.” Gaither v. United States, 413 F.2d 1061, 1079 (D.C.Cir.1969). The prosecutor’s remarks were error to the extent that they overstated Simpson’s testimony as to the reasons bank accounts in the Islands are opened, and to the extent that they suggested funds were hidden in the Islands. This, however, does not terminate the inquiry, since a reviewing court must decide whether the improper remarks caused substantial prejudice to the defendant, United States v. Monaghan, 741 F.2d 1434, 1443 (D.C.Cir.1984), cert. denied, 470 U.S. 1085, 105 S.Ct. 1847, 85 L.Ed.2d 146 (1985); United States v. Kim, 595 F.2d 755, 768 (D.C.Cir.1979), in light of the severity of the misconduct, the measures adopted to cure the misconduct, and the certainty" }, { "docid": "15172963", "title": "", "text": "tongue in the heat of oral argument,” Maj. Op. at 396, but I have no doubt that these improper statements were intentional. The notion that the IC’s counsel somehow forgot about the colloquy at the bench in which he promised not to introduce evidence of the amount of profits, see Maj. Op. at 896, or that he did not grasp the difference between the existence of profits and the size of profits is too fanciful for serious consideration. Indeed, the IC’s brief does not assert the benign motive that the Majority raises as a possibility. Surely the IC knew perfectly well that North’s defense, that he took the fence solely to protect his wife and children, would tug powerfully at the jurors’ hearts and therefore the IC wished, even to the extent of violating the agreed upon “rules of engagement” of the trial, to impugn North’s motives. None of the cases relied upon by the Majority involved deliberately improper prosecutorial statements. See Donnelly v. DeChristoforo, 416 U.S. 637, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974) (no suggestion of deliberate misconduct); United States v. Monaghan, 741 F.2d 1434 (D.C.Cir.1984) (same), cert. denied, 470 U.S. 1085, 105 S.Ct. 1847, 85 L.Ed.2d 146 (1985); United States v. Modica, 663 F.2d 1173, 1185 n. 7 (2d Cir.1981) (“improper remarks ... were not instances of deliberate misconduct.”), cert. denied, 456 U.S. 989, 102 S.Ct. 2269, 73 L.Ed.2d 1284 (1982). The Majority opinion appears to hold that a single “misstatement” in closing argument cannot constitute severe prosecutorial misconduct. See Maj. Op. at 397. Perhaps that is the proper approach for improper arguments that are indeed “misstatements,” but intentionally improper arguments seem to me to approach misconduct that is per se severe. To be sure, as the Majority points out, the Supreme Court has said that, absent special circumstances, “[ijsolated passages of a prosecutor’s argument, billed in advance to the jury as a matter of opinion not of evidence, do not reach the same proportions [as the consistent and repeated misrepresentation of a dramatic exhibit in evidence.]” Donnelly v. DeChristoforo, 416 U.S. 637, 646, 94 S.Ct. 1868," }, { "docid": "2145446", "title": "", "text": "of conviction absent the improper remarks. Monaghan, 741 F.2d at 1443; Gaither, 413 F.2d at 1079. Evaluating the claim of plain error “against the entire record,” Young, 470 U.S. at 16, 105 S.Ct. at 1046, we find that the error in this case did not “undermine the fundamental fairness of the trial and contribute to a miscarriage of justice.” Id. The offending statements were confined to the summation, United States v. Modica, 663 F.2d 1173, 1181 (2d Cir.1981), cert. denied, 456 U.S. 989, 102 S.Ct. 2269, 73 L.Ed.2d 1284 (1982), and consisted only of “two remarks made by the prosecutor during the course of his rather lengthy closing argument to the jury.” Donnelly v. DeChristoforo, 416 U.S. 637, 640, 94 S.Ct. 1868, 1870, 40 L.Ed.2d 431 (1974); see also United States v. Jordan, 810 F.2d 262, 265 (D.C.Cir.) (improper remark consisted of one phrase out of 215-line opening statement), cert. denied, — U.S. —, 107 S.Ct. 1963, 95 L.Ed.2d 535 (1987). The remarks were not the product of an improper motive on the part of the prosecutor to excite the prejudices of the jury, Monaghan, 741 F.2d at 1442 n. 33, and seemed to be a response to defense counsel’s suggestions that there was no trace of the payments made by Dillon. In addition, we agree with the trial judge that the remarks were not directed to the central issues in the case: the participation of Perholtz and Jackson in racketeering acts including bribery and mail fraud in connection with the Postal Service’s ATAP and FLSA procurements and the Small Business Administration’s procurements, and the participation of all appellants in various acts of mail fraud in connection with the SBA’s communications procurements. Although the defendants did not object to the prosecutor’s remarks, and did not request curative instructions, the trial court, nevertheless, did charge the jury that arguments of counsel are not evidence. The Supreme Court has noted that such an instruction may be considered in evaluating the extent to which the fairness of a trial has been affected. See Darden v. Wainwright, 477 U.S. 168, 182, 106 S.Ct. 2464," }, { "docid": "17129532", "title": "", "text": "are grounds for reversal, the fundamental question is whether, if there was misconduct, it caused substantial prejudice to the defendant, thereby depriving him of his right to a fair trial. United States v. Biasucci, 786 F.2d 504, 514 (2d Cir.), cert. denied, 479 U.S. 827, 107 S.Ct. 104, 107, 93 L.Ed.2d 54, 56 (1986). This determination depends heavily on the context of the case, United States v. Young, 470 U.S. 1, 12, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985); United States v. Friedman, 909 F.2d 705, 709 (2d Cir.1990), and is largely controlled by three factors: (1) the severity of the misconduct; (2) curative measures taken by the district court; and (3) the certainty of conviction absent the misconduct. Id.; United States v. Modica, 663 F.2d 1173, 1181 (2d Cir.1981) (per curiam), cert. denied, 456 U.S. 989, 102 S.Ct. 2269, 73 L.Ed.2d 1284 (1982). The prosecutor’s statement that “[y]ou don’t think the government is busy enough prosecuting crimes that it has the time to be prosecuting innocent people, going after people arbitrarily?” was improper. The principal reason that prosecutors must not make personal observations about the guilt of the defendant is that such an observation can create an inference in the mind of the jury that the prosecutor has knowledge of extra-record evidence proving that the defendant is, in fact, guilty. United States v. Young, 470 U.S. at 18, 105 S.Ct. at 1047. A prosecutor’s assertion that the defendant is guilty also raises the risk that the jury will simply defer to the government’s view of the evidence. Id. at 19, 105 S.Ct. at 1048. Even though the prosecutor’s statement was improper, reversal is not warranted here, despite the court’s failure to sustain LaMorte’s objection and give a curative instruction, since the misconduct was de minimis in the context of this case. U.S. v. Nersesian, 824 F.2d 1294, 1329 (2d Cir.), cert. denied, 484 U.S. 957, 108 S.Ct. 355, 98 L.Ed.2d 380 (1987). In this case, “[w]hen viewed in context, the prosecutor’s remarks cannot be read as implying that the prosecutor had access to evidence outside the record.” Young, 470" }, { "docid": "22976333", "title": "", "text": "bear. United States v. Monaghan, 741 F.2d 1434, 1441 (D.C.Cir.1984) (internal citations omitted), cert. denied, 470 U.S. 1085, 105 S.Ct. 1847, 85 L.Ed.2d 146 (1985); see also Northern Mariana Islands, 976 F.2d at 486-87; United States v. Solivan, 937 F.2d 1146, 1150-55 (6th Cir.1991). While recognizing that prosecutors may not appeal to the passions of the jury, in analyzing the effect of a comment upon the jury we accord due respect to the common sense of jurors. The Supreme Court has stated that [i]solated passages of a prosecutor’s argument, billed in advance to the jury as a matter of opinion not of evidence, do not reach the same proportions [as “[t]he ‘consistent and repeated misrepresentation’ of a dramatic exhibit in evidence”].... [A] court should not lightly infer that a prosecutor intends an ambiguous remark to have its most damaging meaning or that a jury, sitting through a lengthy exhortation, will draw that meaning from the plethora of less damaging interpretations. Donnelly v. DeChristoforo, 416 U.S. 637, 646-47, 94 S.Ct. 1868, 1873, 40 L.Ed.2d 431 (1974) (quoting Miller v. Pate, 386 U.S. 1, 6, 87 S.Ct. 785, 787, 17 L.Ed.2d 690 (1967)). Appellants challenge several remarks made by the prosecution in its rebuttal clos ing argument. We examine each comment in turn. Appellants first challenge statements telling the jury that they are “the conscience of the community.” An appeal to the jury to be the conscience of the community is not impermissible unless it is “specifically designed to inflame the jury.” United States v. Williams, 989 F.2d 1061, 1072 (9th Cir.1993) (internal quotations omitted); United States v. Lester, 749 F.2d 1288, 1301 (9th Cir.1984). In this case, when the prosecutor’s statement is considered in context, it is clear that it was not designed to inflame the jury, but rather to explain to jurors that they were in the position to determine whether the charged conduct comported with community standards of reasonableness. The reference was not accompanied by any suggestion of the consequences of a particular verdict, nor did the prosecutor suggest to the jury that it had a direct stake in" }, { "docid": "2145445", "title": "", "text": "legitimate purpose, it was proper to cross-examine concerning alleged past involvement in drug smuggling), cert. denied, 466 U.S. 960, 104 S.Ct. 2174, 80 L.Ed.2d 557 (1984). Turning to the issue of the closing remarks, it has been established that a prosecutor should not make “statements of fact to the jury not supported by proper evidence introduced during trial.” Gaither v. United States, 413 F.2d 1061, 1079 (D.C.Cir.1969). The prosecutor’s remarks were error to the extent that they overstated Simpson’s testimony as to the reasons bank accounts in the Islands are opened, and to the extent that they suggested funds were hidden in the Islands. This, however, does not terminate the inquiry, since a reviewing court must decide whether the improper remarks caused substantial prejudice to the defendant, United States v. Monaghan, 741 F.2d 1434, 1443 (D.C.Cir.1984), cert. denied, 470 U.S. 1085, 105 S.Ct. 1847, 85 L.Ed.2d 146 (1985); United States v. Kim, 595 F.2d 755, 768 (D.C.Cir.1979), in light of the severity of the misconduct, the measures adopted to cure the misconduct, and the certainty of conviction absent the improper remarks. Monaghan, 741 F.2d at 1443; Gaither, 413 F.2d at 1079. Evaluating the claim of plain error “against the entire record,” Young, 470 U.S. at 16, 105 S.Ct. at 1046, we find that the error in this case did not “undermine the fundamental fairness of the trial and contribute to a miscarriage of justice.” Id. The offending statements were confined to the summation, United States v. Modica, 663 F.2d 1173, 1181 (2d Cir.1981), cert. denied, 456 U.S. 989, 102 S.Ct. 2269, 73 L.Ed.2d 1284 (1982), and consisted only of “two remarks made by the prosecutor during the course of his rather lengthy closing argument to the jury.” Donnelly v. DeChristoforo, 416 U.S. 637, 640, 94 S.Ct. 1868, 1870, 40 L.Ed.2d 431 (1974); see also United States v. Jordan, 810 F.2d 262, 265 (D.C.Cir.) (improper remark consisted of one phrase out of 215-line opening statement), cert. denied, — U.S. —, 107 S.Ct. 1963, 95 L.Ed.2d 535 (1987). The remarks were not the product of an improper motive on the part of" }, { "docid": "1459400", "title": "", "text": "the statements substantially prejudiced the defendant. In determining whether substantial prejudice has occurred, the court looks to the closeness of the case, the centrality of the issue affected by the error, and the steps taken to mitigate the error. Childress, 58 F.3d at 715-16 (quoting United States v. North, 910 F.2d 843, 894 (D.C.Cir.1990), cert. denied, 500 U.S. 941, 111 S.Ct. 2235, 114 L.Ed.2d 477 (1991)). As part of his closing argument to the jury, the prosecutor stated that the defendants’ alleged actions constituted “blatant exploitation of the disadvantaged members of society, people that are trying to get a leg up” and urged the jury to do “justice” and “tell all the defendants, “You can’t get away with that. You can’t cheat people out of their Section 8’s.’ ” Tr. at 3123, 3287. It is, first of all, not at all apparent that these remarks were improper. Although “[a] prosecutor may not urge jurors to convict a criminal defendant in order to protect community values, preserve civil order, or deter future lawbreaking[,] ... a request that the jury ‘condemn’ an accused for engaging in illegal activity is not constitutionally infirm, so long as it is not calculated to excite prejudice or passion.” United States v. Monaghan, 741 F.2d 1434, 1441-42 (D.C.Cir.1984), cert. denied, 470 U.S. 1085, 105 S.Ct. 1847, 85 L.Ed.2d 146 (1985). We grant great deference to the district court’s judgment as to “[wjhether the prosecutor has struck a foul blow instead of just a hard one.” Dean, 55 F.3d at 665. But even if the prosecutor’s comments were inappropriate, they did not substantially prejudice Walker since the court twice instructed the jurors that the lawyers’ closing arguments only reflected the positions of the government and the defense and that they could only convict Walker and the other defendants based on the evidence. Tr. at 3128, 3288; see also Childress, 58 F.3d at 716 (prosecutorial excess in summation cured by instruction); Dean, 55 F.3d at 665-66 (same). C. Jury Instruction Challenges Walker argues that the court erred by not providing a jury instruction informing the jury that it could" }, { "docid": "15172800", "title": "", "text": "any or all of his convictions. A. Legal Standard A prosecutor may not make “statements calculated to arouse the passions or prejudices of the jury,” United States v. Monaghan, 741 F.2d 1434, 1440 (D.C.Cir.1984), cert. denied, 470 U.S. 1085, 105 S.Ct. 1847, 85 L.Ed.2d 146 (1985), or “statements of fact to the jury not supported by proper evidence introduced during trial,” United States v. Perholtz, 842 F.2d 343, 360 (D.C.Cir.) (quoting Gaither v. United States, 413 F.2d 1061, 1079 (D.C.Cir.1969)), cert. denied, 488 U.S. 821, 109 S.Ct. 65, 102 L.Ed.2d 42 (1988). When an objection is timely made, such remarks, while improper, are cause for reversal only if they “sufficiently prejudiced” the defendant. United States v. Fowler, 608 F.2d 2, 12 (D.C.Cir.1979) (quoting Gaither, 413 F.2d at 1079). We have generally looked to three factors in determining whether improper remarks by the prosecutor sufficiently prejudiced a defendant: “the closeness of the case, the centrality of the issue affected by the error, and the steps taken to mitigate the effects of the error.” Fowler, 608 F.2d at 12 (quoting Gaither, 413 F.2d at 1079). We have also framed the test for prejudice in terms of the severity of the prosecutor’s misconduct, the measures adopted to cure the misconduct, and the certainty of conviction absent the improper remarks. Perholtz, 842 F.2d at 361; Monaghan, 741 F.2d at 1443. “[I]n assessing the effect a prosecutor’s remark would have had on a jury,” however, we seek to avoid an overly mechanistic application of these criteria by according “due respect” to “the jurors’ common sense and discrimination.” Monaghan, 741 F.2d at 1440. B. Application 1. Reference to Hitler The IC stated during closing argument that: So far in this drama in August and September of 1985, North and McFarlane are following Adolf Hitler’s old strategy. He was the one who said, the victor will never be asked if he told the truth. And the idea here was if the lies work, Congress will stop asking questions. Tr. at 8011. Unquestionably inflammatory, the reference to Hitler reflected remarkably poor judgment by the IC. Nonetheless, in response" }, { "docid": "22976340", "title": "", "text": "few sentences from a trial that lasted over a month and from detailed closing arguments that lasted many hours. The remarks were not part of a series of improper comments by the prosecutor, but were in fact made in response to defense arguments: in using the phrase “Paris to Tokyo,” government counsel merely was repeating a term previously used by defense counsel to attack King’s credibility. See Monaghan, 741 F.2d at 1443 & n. 42. The misconduct by the prosecution was partially invited, isolated, and of limited severity. See Williams, 989 F.2d at 1072; Monaghan, 741 F.2d at 1443. Second, government counsel, defense counsel, and the district court all admonished the jurors to base their verdict only on the evidence before them, and to ignore what they knew about the first trial or what the possible ramifications of any verdict might be. The court also instructed the jurors to rely only on the evidence introduced at trial, and reminded them that oral argument is not evidence. Such instructions dilute the potential prejudice arising from improper statements. E.g., Williams, 989 F.2d at 1072; Lester, 749 F.2d at 1301; United States v. Flake, 746 F.2d 535, 542 (9th Cir.1984), cert. denied, 469 U.S. 1225, 105 S.Ct. 1220, 84 L.Ed.2d 360 (1985). Third, unlike cases in which there is little evidence on which the jurors could base a conviction, in this case there was substantial independent evidence to support a finding of guilt. See United States v. Modica, 663 F.2d 1173, 1182 (2d Cir.1981), cert. denied, 456 U.S. 989, 102 S.Ct. 2269, 73 L.Ed.2d 1284 (1982). Finally, the verdicts acquitting two police officers and finding two guilty is indicative of the jury’s ability to weigh the evidence without prejudice. Monaghan, 741 F.2d at 1443 n. 45. In light of these factors, we conclude that the jury’s ability to weigh the evidence impartially was not materially affected by the prosecutor’s improper remarks. Cf. Williams, 989 F.2d at 1072; United States v. Polizzi, 801 F.2d 1543, 1558 (9th Cir.1986). H. Jury Instructions After closing arguments, the district court instructed the jury that the government had" }, { "docid": "23667164", "title": "", "text": "to use your common sense, to take things in light of your own life experiences. Was it uncontested or did the defendant’s case— did Officer Hughes say' Camden police, drop the gun? That’s what Officer Hughes testified that he said. Brown failed to object to these comments at trial. We find neither error nor any colorable miscarriage of justice here. See Price, 76 F.3d at 530. Indeed, it appears that a mere prosecutorial slip of the tongue gave rise to the language to which Brown now objects — language with no discernible adverse effect upon the defendant. Read in context, as any such comments must be, the prosecutor’s use of the phrase ‘Was it uncontested or did the defendant’s case — ” appears to be nothing more than an instance of garbled syntax that she immediately corrected with a proper reference to admitted evidence: “Did Officer Hughes say Camden police, drop the gun?” We think the Supreme Court’s observation in Donnelly v. DeChristoforo, 416 U.S. 637, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974), concerning challenges to closing arguments particularly apposite to our analysis. Because summations are seldom carefully constructed in toto before the event [and] improvisation frequently results in syntax left imperfect and meaning less than crystal clear ... a court should not lightly infer that a prosecutor intends an ambiguous remark to have its most damaging meaning or that a jury, sitting through lengthy exhortation, will draw that meaning from the plethora of less damaging interpretations. Id. at 646^47, 94 S.Ct. 1868. As a general rule, in assessing whether an ambiguous prosecutorial remark should be construed as an improper comment on the defendant’s decision not to testify, appellate courts “should not strain to reach the one interpretation which ascribes improper motives to the prosecutor.” United States v. Monaghan, 741 F.2d 1434, 1437 (D.C.Cir.1984), cert. denied, 470 U.S. 1085, 105 S.Ct. 1847, 85 L.Ed.2d 146 (1985). In this case, the District Court properly declined to do so, as do we. IY. CONCLUSION For the foregoing reasons, we find Brown’s challenges to his conviction in the gun possession case meritless. We" } ]

[ { "docid": "17130691", "title": "", "text": "process was truly adversarial. Id. at 409. Accord United States v. Tyler, 36 M.J. 641 (A.C.M.R.1992). Most recently, the “but for” test for determining whether counsel’s ineffectiveness was prejudicial appears to have been modified by the Supreme Court. Lockhart v. Fretwell, — U.S. -, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993). In that case, the Court reversed the court of appeals’ affirmance of a lower court’s vacation of a capital sentence on grounds that the defense counsel’s failure to object to aggravating evidence was prejudicially deficient representation. In commenting on the constitutional standard governing ineffectiveness of counsel, the Court opined: Our decisions have emphasized that the Sixth Amendment right to counsel exists “in order to protect the fundamental right to a fair trial.” ... Thus, “the right to the effective assistance of counsel is recognized not for its own sake, but because of the effect it has on the ability of the accused to receive a fair trial. Absent some effect of challenged conduct on the reliability of the trial process, the Sixth Amendment guarantee is generally not implicated.” ... The test formulated in Strickland for determining whether counsel has rendered constitutionally ineffective assistance reflects this concern. In Strickland, we identified the two components to any ineffective assistance claim: (1) deficient performance and (2) prejudice. Under our decisions, a criminal defendant alleging prejudice must show “that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” ... Thus, an analysis focussing solely on mere outcome determination, without attention to whether the result of the proceeding was fundamentally unfair or unreliable, is defective. To set aside a conviction or sentence solely because the outcome would have been different but for counsel’s error may grant the defendant a windfall to which the law does not entitle him. Fretwell, — U.S. at-, 113 S.Ct. at 842-43. But see Justice O’Connor’s concurring opinion suggesting that the “but for” test remains unchanged. Id. at-, 113 S.Ct. at 845. As an intermediate military appellate court, we should, in the interest of the orderly administration of justice," } ]

[ { "docid": "14965406", "title": "", "text": "even in the absence of oral argument before the United States Army Court of Military Review. The verbatim record of appellant’s trial proceedings consisted of 54 pages. Included were the presentencing proceedings of the trial reflecting appellant’s service record. In extenuation and mitigation, appellant testified under oath about his enjoyment of the Army, his desire to remain in the service, and his family circumstances surrounding a three-day absence. Defense counsel made an argument on sentence covering four pages of the record. This record, with all accompanying exhibits, was provided to the Court of Military Review for review pursuant to Article 66, UCMJ, 10 U.S.C. § 866. Also available was a petition for clemency in the allied papers submitted to the convening authority which resulted in suspension of the unserved portion of adjudged confinement. A panel of the United States Army Court of Military Review declined unanimously to hear oral argument on the issue of sentence appropriateness after briefs on the issue had been submitted. For many years under the Court of Military Review rules, oral argument was a matter of right. The new Rule 17a, Courts of Military Review Rules of Practice and Procedure (1980), however, states: Oral argument may be heard in the discretion of the Court upon motion by either counsel or upon order by the Court after briefs have been filed in accordance with Rule 16. Motion for oral argument shall be made at the time pleadings are filed or within 5 days after the Government files its reply. 10 M.J. LXXXV. We conclude that this permissive rule does not violate a fundamental right of appellant. A unique sentencing power is vested in the Courts of Military Review under Article 66. However, this Court does not review the exercise of this power except where errors of law occur. United States v. Snelling, 14 M.J. 267 (C.M.A. 1982). This conclusion does not disturb our decision in United States v. Larneard, 3 M.J. 76 (C.M.A. 1977). There we recognized that a military criminal appeal is a “creature ... solely of statutory origin,” conferred neither by the Constitution nor the" }, { "docid": "7458736", "title": "", "text": "the appointment of appellate defense counsel in every case to be reviewed by a service Court of Military Review. To do so, this Court must venture into the area of statutory enlargement. Article 70 of the UCMJ, 10 USC § 870, gives the power to appoint appellate counsel to the respective Judge Advocates General. In particular it states that [ajppellate defense counsel shall represent the accused before the Court of Military Review, the Court of Military Appeals, or the Supreme Court—(1) when requested by the accused; (2) when the United States is represented by counsel; or (3) when the Judge Advocate General has sent the case to the Court of Military Appeals. For us to do as appellate defense counsel requests would require us to “legislate,” an exercise of power that we do not purport to have. Having said that, there are other aspects to this issue which we must address. The accused’s professed waiver of appellate counsel occurred some 58 days prior to the action by the convening authority approving the findings and sentence in his case. In a similar factual situation this Court held that where appellant executed a waiver of his right to appellate defense counsel on the day of his trial, over 60 days prior to the action of the convening authority[,] [w]e find that such a waiver was premature and without effect. United States v. Avery, 34 M.J. 160 (1991). Therein we cited our holding in United States v. Hernandez, 33 M.J. 145 (CMA 1991). In Hernandez the accused had signed a waiver of appellate review “2 days before [his] trial—with his defense counsel as a witness”. Id. at 146. Citing Article 61, UCMJ, 10 USC § 861 (1983), this Court held that the statute required that a waiver of appellate review shall be signed by the accused and defense counsel within 10 days after the action of the convening authority had been served upon the accused or his defense counsel. We noted the clear wisdom of this legislative enactment was to ensure that while the accused would be accorded the right to waive future" }, { "docid": "12125465", "title": "", "text": "the military judge’s in camera review of them could be preserved for appellate review. Record at 609. Therefore, the CPS records had no affect on the findings or the sentence as adjudged and the appellate has not indicated how he was prejudiced by the inability of the convening authority to consider them. We also find no merit in assignments of error XVII, XVIII, and XIX. As to assignment of error XXII, we find no error in the military judge’s decision to admit expert testimony on the child abuse accommodation syndrome. Such testimony was clearly relevant and helpful to the military judge, as the fact-finder, in evaluating the testimony of the children. See Daubert v. Merrell Dow Pharmaceuticals, Inc., — U.S. -, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993); United States v. Rodriguez, 37 M.J. 448 (C.M.A.1993). Finally we conclude that the appellant waived any violation of his right to speedy trial under R.C.M. 707 when he did not raise the issue at trial. R.C.M. 707(e). Accordingly, the findings and sentence, as approved on review below, are affirmed. Senior Judge ORR and Judge KEATING concur. . Appellant filed, through his counsel, a pleading entitled Assignments of Error and Brief in Support Thereof on 16 June 1993, alleging eight assignments of error. Since then we have received three additional pleadings on two separate dates, directly from the appellant. These pleadings raised additional assignments of error and were attached to the record of trial in accordance with United States v. Grostefon, 12 M.J. 431 (C.M.A.1982). On each occasion, appellate defense counsel was provided the opportunity to expand upon matters raised directly by the appellant. He did so and raised additional assignments of error as well. Appellate defense counsel used two different numbering systems to distinguish errors raised by the appellant from those raised by counsel, and there was some redundancy between the pleadings. For the pur pose of this opinion we have consolidated, where applicable, and renumbered the assignments of error. We have considered all the assignments raised directly by the appellant and by his appellate counsel. The assignments of error generally consist" }, { "docid": "15755496", "title": "", "text": "report by her treating psychiatrist, Doctor Hammer, she was found to “behave in an uncooperative and inappropriate manner despite reassurances that we [were] attempting to assist her,” and was “not considered mentally ill, but manifested] a long-standing disorder of character and behavior____” Defense Exhibit A at 14. She was likewise determined to be responsible for her actions during this same evaluation, a conclusion Doctor Hammer reiterated from the witness stand. Record at 745-46. Additionally, we find no credible evidence to rebut the presumption that the military judge and the trial defense counsels performed their duties faithfully and acted in an informed manner on issues of mental capacity and responsibility. United States v. Lewis, 34 M.J. 745, 752 (N.M.C.M.R.1991). In fact, the military judge raised the insanity issue to the appellant’s trial defense team at three separate junctures in the proceedings. Record at 59, 105, and 735-36. He also proffered questions from the bench to Doctor Hammer, a staff psychiatrist who testified at trial. Record at 724. On this same basis, we decline to further consider ineffective representation by the appellant’s trial defense team. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Lockhart v. Fretwell, 506 U.S. 364, 113 S.Ct. 838,122 L.Ed.2d 180 (1993); United States v. Scott, 24 M.J. 186 (C.M.A.1987). We are convinced that a different result on the issue of insanity (specifically mental capacity as raised herein), would not have obtained if the court members had considered this newly proffered evidence. Applying the current standard for post-article 50a, UCMJ, 10 U.S.C. § 850a, cases set in United States v. Cosner, 35 M.J. 278, 281 (C.M.A.1992), we are convinced beyond a reasonable doubt that reasonable factfinders would not find by clear and convincing evidence that appellant’s diagnosed “major depression” made her either unable to appreciate the quality and nature or the wrongfulness or her acts, or unable to participate in either her trial or post-trial proceedings in a meaningful way. See also United States v. Young, 43 M.J. 196, 197 (1995)(citing United States v. Van Tassel, 38 M.J. 91, 95 (C.M.A.1993))(where the offenses pre-dated" }, { "docid": "12125464", "title": "", "text": "Wynn, 23 M.J. 726, 728 (A.F.C.M.R.1986), vacated on other grounds, 26 M.J. 232 (C.M.A.1988) (summary disposition), appeal after remand, No. 25255 (A.F.C.M.R. 28 Jul 1988), aff'd, 29 M.J. 143 (C.M.A.1989); United States v. Eubank, 12 M.J. 752 (A.F.C.M.R.1981); see also United States v. Le Prowse, 26 M.J. 652 (A.C.M.R.1988) (holding that omission of exhibits—books—was insubstantial where military judge described the books); United States v. Harper, 25 M.J. 895 (A.C.M.R.), petition denied, 27 M.J. 418 (C.M.A.1988) (holding that omission of personnel file as an appellate exhibit was insubstantial where military judge perused the file prior to determining admissibility of other exhibits); United States v. Baker, 21 M.J. 618 (AC.M.R.1985), pet. denied, 22 M.J. 89 (C.M.A.1986) (holding that omission of written request for enlisted members insubstantial). The record accurately and completely reflects what occurred at trial and includes everything the trier of fact had before him when he made his findings and sentence determinations. The CPS records were never admitted into evidence. They were only attached as an appellate exhibit so that any possible issue relating to the military judge’s in camera review of them could be preserved for appellate review. Record at 609. Therefore, the CPS records had no affect on the findings or the sentence as adjudged and the appellate has not indicated how he was prejudiced by the inability of the convening authority to consider them. We also find no merit in assignments of error XVII, XVIII, and XIX. As to assignment of error XXII, we find no error in the military judge’s decision to admit expert testimony on the child abuse accommodation syndrome. Such testimony was clearly relevant and helpful to the military judge, as the fact-finder, in evaluating the testimony of the children. See Daubert v. Merrell Dow Pharmaceuticals, Inc., — U.S. -, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993); United States v. Rodriguez, 37 M.J. 448 (C.M.A.1993). Finally we conclude that the appellant waived any violation of his right to speedy trial under R.C.M. 707 when he did not raise the issue at trial. R.C.M. 707(e). Accordingly, the findings and sentence, as approved on review below," }, { "docid": "1889227", "title": "", "text": "Appellant’s assignment of error also ignores that trial defense counsel, with the knowledge and apparent concurrence of Appellant, made a tactical decision on how to focus the sentencing case. Motion to Attach Documents of 3 Jul 2002 (Declaration of LtCol John M. Schum, USMC, of 2 Jul 2002). Fearing effective cross-examination on the impact of Appellant’s crimes on his unit, trial defense counsel made the tactical decision to introduce Appellant’s military character and performance via service book entries. Id. Therefore, Appellant’s argument completely misses one of the well-settled principles underlying Sixth Amendment analysis: that a defense counsel’s tactical decisions are virtually unchallengeable. See United States v. Rivas, 3 M.J. 282, 289 (C.M.A1977)(refusing to second-guess the strategic or tactical decisions of defense counsel); see also United States v. Sanders, 37 M.J. 116, 118 (C.M.A.1993)(dismissing an appellant’s second-guessing of tactical decisions as “Monday-morning quarterbacking”). We find that trial defense counsel’s performance, both over the course of the trial and during the sentencing hearing, far exceeded the minimum level required by Strickland, 466 U.S. at 687, 104 S.Ct. 2052. Accordingly, we deny his request for relief. Trial Counsel’s Sentencing Argument In Appellant’s fifth assignment of error, he asserts that improper comments during trial counsel’s sentencing argument amounted to plain error. Appellant avers that this Court should only approve a sentence of 25 years confinement with the remaining sentence as adjudged. We disagree. R.C.M. 1001(g) states, in relevant part, that a “[fjailure to object to improper argument before ... sentencing shall constitute waiver of the objection.” See generally United States v. Reist, 50 M.J. 108, 110 (1999). In the case at bar, Appellant premises his assignment of error on the allegation that during the sentencing argument, trial counsel argued that Appellant acted with premeditation when he murdered his wife. Appellant’s Brief of 1 Jul 2002 at 19-21. Such an argument by trial counsel would have contradicted Appellant’s plea to unpremeditated murder under Article 118(2), UCMJ, vice premeditated murder under Article 118(1), UCMJ. While Appellant cites the record at page 225 to support his argument, he fails to quote the specific objectionable statements of the" }, { "docid": "1067354", "title": "", "text": "a presumption should exist against such a supersession. ABA Model Rule 1.6 cmt. A substantially identical comment also appears as part of the interpretative guidance of AR 27-26, Rule 1.6. . AR 27-26, Rule 1.6(b) provides: A lawyer shall reveal such information to the extent the lawyer reasonably believes necessary to prevent the client from committing a criminal act that the lawyer believes is likely to result in imminent death or substantial bodily harm, or significant impairment of national security or the readiness or capability of a military unit, vessel, aircraft, or weapon system. See abo ABA Model Rule 1.6(b)(1). . This court has also recognized that the ‘but for\" test for determining whether an accused was prejudiced by ineffectiveness of his counsel may have been modified by the Supreme Court in Lockhart v. Fretwell, — U.S. —, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993). \"To set aside a conviction or sentence solely because the outcome would have been different but for counsel’s error may grant the defendant a windfall to which the law does not entitle him.” Id. — U.S, at —, 113 S.Ct. at 843. However, for the reasons we explained in United States v. Dumas, 36 M.J. 941, (A.C.M.R. 1993), we will not apply the test as modified. . In another context, this court has decided issues raised for the first time on appeal on the basis of affidavits or the absence thereof. In United States v. Peacock, 19 M.J. 909 (A.C.M.R.1985), pet. denied, 20 M.J. 205 (C.M.A.1985), the appellant filed an affidavit with this court alleging that he had been confined before trial with sentenced prisoners in violation of Article 13, UCMJ, 10 U.S.C. § 813. We first observed that violations of Article 13. can \"assume such serious proportions as to justify post-trial consideration.” United States v. Johnson, 19 U.S.C.M.A. 49, 50, 41 C.M.R. 49, 50 (1969). Then we determined that the appellant’s unrebutted post-trial affidavit attesting to his mistreatment was \"cogent, credible, and sufficient to shift the burden of disproving its content to the Government “beyond the point of equipoise or \"inconclusiveness’’.’ United States v." }, { "docid": "7446005", "title": "", "text": "OPINION OF THE COURT RIVES, Judge: In this case, we further refine application of the Court of Military Appeals decision in United States v. Craig, 28 M.J. 321 (C.M.A.1989). Craig requires the record of trial and allied papers to demonstrate that the convening authority considered post-trial clemency submissions of an appellant. See Article 60(c)(2), UCMJ, 10 U.S.C. § 860(c)(2); R.C.M. 1107(b)(3)(A)(iii). To test questionable records for compliance, we will use our fact-finding power and draw appropriate conclusions. Article 66(c), UCMJ, 10 U.S.C. § 866(c). A precursor of Craig is United States v. Hallums, 26 M.J. 838 (A.C.M.R.1988). In that case, the Army Court of Military Review decided it would not be appropriate to “guess” whether a convening authority had considered clemency materials; the Court set aside the action and returned the record for new staff judge advocate recommendations and convening authority action. 26 M.J. at 841. The Court of Military Appeals approved that approach, concluding that a remand will usually be appropriate when it is uncertain whether a convening authority properly considered defense submissions. Craig, 28 M.J. at 325. Faced with an ambiguous record in United States v. Blanch, 29 M.J. 672, 673 (A.F.C.M.R.1989), this Court accepted an affidavit from the convening authority that he had in fact considered the appellant’s clemency matters before taking action. We did not require a new action. Subsequently, we published a series of decisions to help staff judge advocates avoid Craig issues. The combination of our decisions in United States v. Foy, 30 M.J. 664 (A.F.C.M.R.1990) (en banc), United States v. Pelletier, 31 M.J. 501 (A.F.C.M.R.1990), pet. denied, 32 M.J. 223 (C.M.A.1990), and United States v. Godreau, 31 M.J. 809 (A.F.C.M.R.1990) (en banc), pet. denied, 33 M.J. 178 (C.M.A.1991), provides guidance for staff judge advocates to help reviewing authorities infer from the record that the convening authority had considered an appellant’s submissions. We advised that when the defense submits such matters, staff judge advocates should— (1) prepare an addendum, (2) state in it that the defense matters are attached, (3) advise the convening authority that he must consider them, (4) refrain from implying otherwise," }, { "docid": "21786274", "title": "", "text": "asking our help, and a replica was sent to the military judge for review. Over 6 months after the trial, the military judge wrote to appellate defense counsel, presumably with as much certainty as he could muster, “Based on my recollection, the file appears to be a true and accurate copy of the file ... reviewed by me in camera....” His honest equivocation made a certificate of correction impractical. . One appellate solution to the problem of incomplete records is to approve only so much of the sentence as is consistent with a summarized record, no more than confinement for 6 months and no punitive discharge. See R.C.M. 1103(b)(2)(B). See, e.g., United States v. Harmon, 29 M.J. 732 (A.F.C.M.R.1989). . Trial counsel is the guardian of the record, with a statutory duty to \"prepare the record of the proceedings,\" 10 U.S.C. sec. 838(a) (1988), Article 38(a), UCMJ. See also R.C.M. 502(d)(5), 1103(b) & (i). The military judge perpetuated his error by authenticating a record which did not include the special documents. See R.C.M. 1104. The staff judge advocate overlooked the military judge’s mistake, despite his opportunity under R.C.M. 1104(e). Had anyone detected the error timely, the error might have been corrected through a post-trial session under R.C.M. 1102. . Some specifications were withdrawn, requiring that the remainder be redesignated. . See generally United States v. Holland, 1 M.J. 58 (C.M.A.1975), and decisions cited at note 8, below. Appellee has noted for us that the multiplicity provision can be read as binding the convening authority, requiring relief had the military judge ruled otherwise. We are dubious: The parties to the agreement could have reached the same point much more directly by agreeing to conventional caps on the components of the sentence, but they did not choose to do so. Presumably they had some reason to deviate from the sound advice at A.F.R. 111-1, para. 7-3 (30 September 1988), but we decline to speculate what it might be. . See generally, United States v. Phillips, 24 M.J. 812 (A.F.C.M.R.1987). . See, e.g., United States v. King, 3 M.J. 458 (C.M.A.1977); United States" }, { "docid": "14117095", "title": "", "text": "witnesses and in other aspects of the defense. When an accused is denied a substantial right conferred by Article 32 and makes timely and proper objection, he is entitled to relief whether or not there is or may be any prejudicial effect at the trial. United States v. Chuculate, 5 M.J. 143, 144-45 (C.M.A.1978). We already have determined that the pretrial investigating officer denied appellant a substantial right in failing to delay the investigation for a reasonable effort to seek out civilian counsel. The objection was timely. It follows that the military judge erred in denying the motion to reopen the Article 32 investigation. Whether the military judge also erred in denying a further continuance in the trial so that appellant could be represented by Mr. Roberts on a January date is subject to a different test. The determinant question is whether the ruling amounted to an abuse of discretion. See Conmy v. Williams, 20 U.S.C.M.A. 282, 43 C.M.R. 122 (1971); cf. United States v. Dunks, 1 M.J. 254, 255 (C.M.A.1976). In view of our disposition of this case, however, we need not decide that question nor are we required to discuss the remaining assigned errors. For the failure of proof previously noted, the findings of guilty of Specifications 1 through 9, inclusive, of Charge I are set aside and those charges are dismissed. The remaining findings of guilty and the sentence are set aside. The same or a different convening authority may order a rehearing, but any rehearing by a general court-martial necessitates compliance with Articles 32 and 34 of the Uniform Code of Military Justice, 10 U.S.C. §§ 832, 834 (1976). Judge O’DONNELL and Judge WATKINS concur. . Respectively, violations of Articles 92, 128, U.S.C. §§ 892, 928, 934 (1976). and 134, Uniform Code of Military Justice, 10 . The formal pretrial investigation that must precede general court-martial. Article 32, Uniform Code of Military Justice, 10 U.S.C. § 832 (1976). . There is such evidence outside the record in pretrial statements of the witnesses. In testifying, some used these statements to refresh recollection. However, the statements themselves were" }, { "docid": "1067315", "title": "", "text": "this court’s order of 10 June 1993. The information presented in their motion, when taken together with other matters contained in the record of trial and allied papers, is adequate to enable us to resolve some of the issues raised by the appellant in his allegations against his counsel. As to those portions of our order with which the movants have not complied, the record and allied papers are sufficient to enable us to decide the matters to which they relate; Thus, we need not issue supplementary orders for affidavits or order a limited evidentiary hearing to obtain the necessary information. See United States v. Wean, 37 M.J. 286 (C.M.A.1993); Dupas, 14 M.J. at 32; Burdine, 29 M.J. 834. D. In their supporting brief the movants have questioned the authority of this court to order them to file affidavits and have challenged the propriety of our action. Their specific objections are: 1. The Army Court of Military Review lacks jurisdiction to issue the order. 2. The order contravenes the Internal Operating Procedures of the Army Court of Military Review. 3. The order violates the attorney-client privilege. 4. Compliance with the order is not required because the allegations of ineffectiveness do not factually or legally substantiate the presumption of attorney competence. 5. Compliance with the order is not required unless prefaced with warnings required by Article 31, UCMJ, 10 U.S.C. § 831. 1. Jurisdiction The movants argue that we have no authority under Article 66, UCMJ, 10 U.S.C. § 866, to order them to file affidavits on the issue of ineffective assistance of counsel. The key points of their argument are: We are an Article I, U.S. Constitution, court whose jurisdiction is limited to reviewing approved findings and sentences; we have no statutory authority to independently hear evidence or compel the taking of evidence other than by remand of the case to a convening authority; only a convening authority may, in the exercise of his discretion, refer the matter to a military judge for an evidentiary hearing. In this connection, they claim that, “even when this Court orders a [United States" }, { "docid": "1101962", "title": "", "text": "actually considered the appellant’s submissions. Craig, 28 M.J. at 325. For these cases, we will require that the government submit an affidavit from the convening authority. At the risk of restating the obvious, we feel constrained to make one final point before leaving this issue. The best way to avoid a Craig problem is to prepare an addendum using the guidance in Foy and Pelletier to insure compliance with Craig and Article 60(c), UCMJ. If this method is used, there will be no need to have the convening authority initial submissions or prepare an affidavit. In appellant’s case, the government went back to the convening authority and obtained an affidavit establishing that the convening authority did consider both post-trial matters submitted by the accused. Considering this affidavit, we find the convening authority properly complied with the requirements of Article 60(c)(2), UCMJ. United States v. Youngren, 28 M.J. 255 (C.M.A.1989) (summary disposition). Appellant’s second assertion of error is that he was prejudiced by the military judge’s erroneous admission of four letters of reprimand (LOR) contained in his UIF. He contends that none of the LORs complied with the requirement in Air Force Regulation 111-1, Military Justice Guide, para. 13-4(b) (Sept. 1988) that each document contain some evidence that the accused had an opportunity to respond to the allegation contained in the document. There was no objection to this evidence at trial. Absent such an objection, we find any error by the military judge was waived. R.C.M. 1001(b)(2). Further, as we have previously ruled, such error does not rise to the level of “plain error”. United States v. Gadson, 30 M.J. 749 (A.F.C.M.R.1990). We have examined the record of trial, the assignment of errors, and the government’s reply and have concluded that the findings and sentence are correct in law and fact, the sentence is appropriate, and no error prejudicial to the substantial rights of the accused was committed. Accordingly, the findings of guilty and sentence are AFFIRMED. Senior Judge O’HAIR and Judge MILLS did not participate. . United States v. Craig, 28 M.J. 321 (C.M.A.1989). . See OTJAGL JAJ 90-2, 15" }, { "docid": "12105035", "title": "", "text": "statutory 10-day response period had expired, defense counsel asked for approximately a 36-day delay to respond to the SJA’s post-trial recommendation. This was denied, but defense counsel was granted an 8-day delay. In the meantime appellant filed a 17-page handwritten personal commentary on his trial. Civilian defense counsel never filed a document. Military defendants are entitled to the effective assistance of counsel during the post-trial appellate processes. United States v. Palenius, 2 MJ 86 (CMA 1977). After trial, when there is representation by civilian counsel, it is advisable for the military judge, as was done in this case, to determine on the record who will represent appellant. In determining whether this counsel was effective we apply the two-prong Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) standard: (1) whether counsel was reasonably competent and (2) if not, whether the accused was prejudiced. See also Lockhart v. Fretwell, — U.S.-, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993); United States v. Scott, 24 MJ 186 (CMA 1987). There are various post-trial responsibilities of defense counsel during the four levels of post-trial review. There are two mandatory reviews, first by the convening authority and second by the Court of Military Review. The third review is, in most cases, by a discretionary appeal to the United States Court of Military Appeals. Finally, if the case is decided by our Court, then the fourth review is by a writ or a discretionary appeal to the United States Supreme Court. As to the first review, the one at issue here, there are numerous actions appellant’s counsel can take. Counsel may petition for deferment of confinement, respond to the SJA’s recommendation, or even assist appellant in putting family affairs in order. Regardless of indigency, an appellant whose sentence includes a punitive discharge is entitled to a verbatim record of trial. Art. 54, UCMJ, 10 USC § 854. This record of trial is to be served on the defense, along with the SJA’s recommendation. Certainly there is a denial of effective assistance of counsel when counsel is not “conflict free.” United States v." }, { "docid": "7463315", "title": "", "text": "allegation. The United States Court of Military Appeals and this Court have unequivocally condemned conduct by those in positions of authority which result in needless military degradation, or public denunciation or humiliation of an accused. United States v. Cruz, 25 M.J. 326 (C.M.A.1987); United States v. Villamil-Perez, 32 M.J. 341 (C.M.A.1991); United States v. Fitzsimmons, 33 M.J. 710 (A.C.M.R.1991); United States v. Hatchett, 33 M.J. 839 (A.C.M.R.1991). We do so again here and will provide the appellant with meaningful relief in our decretal paragraph. In light of the relief we will grant to the appellant we need not address his other assignment of error. The findings of guilty are affirmed. Using our authority under Article 66(c), UCMJ, 10 U.S.C. § 866(c), to reassess the sentence, based on the error noted, the entire record, and United States v. Sales, 22 M.J. 305 (C.M.A.1986), the Court affirms only so much of the sentence as provides for a bad-conduct discharge, confinement for six months, and reduction to the grade of Private El. Senior Judge De GIULIO concurs. . Article 13, UCMJ, provides in part, \"No person, while being held for trial, may be subjected to punishment or penalty other than arrest or confinement upon the charges pending against him____” [emphasis added.] ARKOW, Judge (dissenting): Appellant, in an unsworn statement during the sentencing phase of the trial, indicated that he was humiliated by his first sergeant at a unit formation after he returned from an unauthorized absence. Trial defense counsel, during his argument on sentence, asked the military judge that this be “fairly considered prior punishment under Article 13, UCMJ,” and that it be taken into consideration when adjudging a sentence. Nothing further was submitted to the court on the issue although the appellant’s company commander was called as a rebuttal witness by the government. Thereafter, the military judge, without comment, adjudged a sentence which was considerably less than the maximum. I believe it is incorrect to decide the issue of whether there was an Article 13, UCMJ, violation for two reasons. First, appellant waived the issue at trial by failing to litigate it." }, { "docid": "19035177", "title": "", "text": "convening authority at any time before it has been published or before the accused has been officially notified.” (Emphasis added.) In his brief, Appellate Government counsel cites this rule and this Court’s decisions in United States v. Cruz, 38 M.J. 611 (N.M.C.M.R.1993) and United States v. Nelson, 35 M.J. 716 (N.M.C.M.R.1992), to argue that the issue of ambiguity in the convening authority’s action is mooted by the subsequent corrective action taken by the convening authority. We disagree. R.C.M. 1107(f)(2) by its terms places time limitations on the convening authority’s ability to modify an action already taken in a case. In United States v. Montesinos, 28 M.J. 38, 42 (C.M.A.1989), the Court of Military Appeals (now the Court of Appeals for the Armed Forces) interpreted the rule as depriving a convening authority of jurisdiction over a case once the initial action is published or the accused has been officially notified, unless the case is remanded to the convening authority or he is empowered to suspend or remit the sentence pursuant to R.C.M. 1108(b). More recently, the Court of Military Appeals interpreted the 1983 amendments to Article 61, UCMJ, as creating a 10-day period following service of the convening authority’s action on an accused or his defense counsel, during which the convening authority retains power over a case, including the power to correct administrative errors. United States v. Diaz, 40 M.J. 335, 344-45 (C.M.A.1994). This is the period in which an accused may waive appellate review by filing a notice of waiver with the convening authority. The 10 days may be extended by a convening authority for good cause for not more than 30 additional days. Article 61(a), UCMJ. Beyond these limits, a convening authority is without power to act unless directed by higher reviewing authority or the Judge Advocate General. R.C.M. 1107(f)(2) and 1107(g). The Government’s reliance on Cruz is misplaced. In that case, after examining Article 65, UCMJ, and R.C.M. 1107(f)(2), we held that the Judge Advocate General and his designees have authority to return a record forwarded for review under Article 66(c), UCMJ, to a convening authority with direction" }, { "docid": "12056780", "title": "", "text": "the sentence, as approved, extends to death, dismissal of a commissioned officer, cadet, or midshipman, dishonorable or bad-conduct discharge, or confinement for one year or more, and, except in the case of a sentence extending to death, the right to appellate review has not been waived or an appeal has not been withdrawn under Article 61. Unless the sentence approved by the convening authority extends to death, a punitive discharge, or confinement of one year or more, jurisdiction does not vest in the Court of Military Review. Article 66(b), UCMJ; United States v. Montesinos, 24 M.J. 682 (A.C.M.R.1987). Courts of Military Review have jurisdiction to review cases which have been returned to the trial court or the convening authority for additional proceedings — regardless of the sentences adjudged or approved below after their return. United States v. Wilson, 20 M.J. 335, 336 (C.M.A.1985) (citing United States v. Bullington, 13 M.J. 184 (C.M.A. 1982)). Once appellate jurisdiction has properly vested, it continues until completion of appellate review. United States v. Montesinos, supra. Just as we cannot divest the Court of Military Appeals of its jurisdiction, so the court below or the convening authority cannot divest us of ours. See United States v. Browers, 20 M.J. 356, 358 (C.M.A.1985). The plain meaning of Article 69 is that only those cases which are not reviewable by a Court of Military Review under Article 66 may be properly examined in the Office of the Judge Advocate General under Article 69. The Judge Advocate General does not have discretion to refuse to forward for review under Article 66 a case reviewable under Article 66. Therefore, examination of the case before us by the Judge Advocate General under Article 69 was not proper. A Court of Military Review’s appellate jurisdiction under Article 66 is mandatory. United States v. Roettger, 17 M.J. 453, 457 (C.M.A.1984). In the absence of a proper waiver by the accused of his right to appellate review or withdrawal of his appeal under Article 61, the Court must exercise such jurisdiction. The accused in this case cannot waive appellate review or withdraw his" }, { "docid": "11285072", "title": "", "text": "First, the military judge found that the maximum punishment was limited by multiplicity to 90 years, but the advice mistakenly reported the maximum considering them separately, 100 years. This mistake was waived by the failure of the trial defense counsel to correct it in his response under R.C.M. 1106(f)(4) to the recommendations. R.C.M. 1106(f)(6); United States v. Ralbovsky, 32 M.J. 921 (A.F.C.M.R.1991). See also United States v. Goode, 1 M.J. 3, 6 (C.M.A.1975) (establishing the waiver rule that was incorporated in R.C.M. 1106(f)(6), though under the prior statute). See generally United States v. Jordan, 32 M.J. 672 (A.F.C.M. R.1991). The other mistake assigned is that the addendum to the recommendations informed the convening authority that he “should read and consider all [the defense submissions].” If “should” can be taken in this context as hortatory (as opposed to politely deferential but clearly instructional in context) then it was the wrong word. A convening authority has no choice about considering the defense submissions; he has a statutory duty to consider them. Article 60(c)(2), UCMJ, 10 U.S.C. § 860(c)(2) (1988). See also R.C.M. 1107(b)(3)(A)(iii). To advise him that he “should” do so was probably incorrect. Assuming that the word choice was a mistake, we note that it is not waived (unlike the mistake above) because it occurred in the addendum, and the record gives no suggestion that the addendum was served for comment on the defense. However, if there is an error here, it is moot: Regardless of the advice given to the convening authority, his affidavit (filed by appellee) establishes that he did consider the defense submissions. Equally brief is our attention to the failure of the record to show that the convening authority considered the staff judge advocate’s addendum to his prior recommendations. See generally Article 60(d), UCMJ, 10 U.S.C. § 860(d)(1988); R.C.M. 1107(b)(3)(A)(ii). Appellant points out that the convening authority was asked to initial it to record his attention to it, but he didn’t. Appellant therefore infers that the convening authority did not see the addendum. The omission is also important because the defense post-trial submissions were conveyed to the" }, { "docid": "12030584", "title": "", "text": "judge ensured that the accused understood those rights. Accordingly, the requirements of R.C.M. 1010(b) were not met. Appellant has urged this Court to hold that this is reversible error per se and to “set aside the convening authority’s action and remand the case to the ... Court of Military Review with direction to order an Article 39(a) [,UCMJ, 10 U.S.C. § 839(a)] session so that R.C.M. 1010 may be satisfied, followed by a new review and action.” We decline to do either. Appellant obviously understood and indeed has exercised his judicial appellate rights. He did not waive review by the Court of Military Review; he requested representation by appellate defense counsel; and he appealed to this Court. Nevertheless, appellant suggests that, because the record does not show that he understood his right to personally submit matters to the convening authority, and his civilian attorney, not he, waived his right to submit matters, reversal is mandated. We do not agree. Trial defense counsel has long been charged with responding to the staff judge advocate’s review (now Recommendation). United States v. Smart, 21 M.J. 15 (C.M.A. 1985); United States v. Kincheloe, 14 M.J. 40 (C.M.A. 1982); United States v. Goode, 1 M.J. 3 (C.M.A. 1975). Furthermore and of equal significance, appellant has not alleged that he did not understand his post-trial and appellate rights, or that he would have taken any different action if the military judge had properly complied with R.C.M. 1010. See United States v. Smart, supra at 18. See also United States v. Johnson, 21 M.J. 211, 216 (C.M.A. 1986) (“court below could have required some showing by the accused as a precondition for his asserting a claim that he had been deprived of his statutory right.”) We have reviewed the entire record of trial and conclude, as did the Court of Military Review, that the military judge’s failure to comply with the requirements of R.C.M. 1010 did not prejudice the substantial rights of this appellant. The decision of the United States Army Court of Military Review is affirmed. APPENDIX APPELLATE RIGHTS ADVICE GENERAL COURT-MARTIAL IF SENTENCE INCLUDES A" }, { "docid": "19035178", "title": "", "text": "Court of Military Appeals interpreted the 1983 amendments to Article 61, UCMJ, as creating a 10-day period following service of the convening authority’s action on an accused or his defense counsel, during which the convening authority retains power over a case, including the power to correct administrative errors. United States v. Diaz, 40 M.J. 335, 344-45 (C.M.A.1994). This is the period in which an accused may waive appellate review by filing a notice of waiver with the convening authority. The 10 days may be extended by a convening authority for good cause for not more than 30 additional days. Article 61(a), UCMJ. Beyond these limits, a convening authority is without power to act unless directed by higher reviewing authority or the Judge Advocate General. R.C.M. 1107(f)(2) and 1107(g). The Government’s reliance on Cruz is misplaced. In that case, after examining Article 65, UCMJ, and R.C.M. 1107(f)(2), we held that the Judge Advocate General and his designees have authority to return a record forwarded for review under Article 66(c), UCMJ, to a convening authority with direction to remedy or correct errors, omissions, or ambiguities. Cruz, 38 M.J. at 612-13. In the case before us, the convening authority acted unilaterally — there was no direction from the Judge Advocate General or his designee. Similarly, this Court’s decision in Nelson does not aid the Government. In Nelson, following United States Army Court of Military Review precedents, we held that the convening authority could withdraw an action and substitute a new one, even after the appellant was notified of the initial action, provided the record had not yet been forwarded for review and where the new action resulted in no prejudice to the accused. Id., 35 M.J. at 719-20. The 1995 amendments to the Rules for Courts-Martial incorporated this rule into R.C.M. 1107 by adding the following sen tence to that set out previously: “The convening authority may also recall and modify any action at any time prior to forwarding the record for review, as long as the modification does not result in action less favorable to the accused than the earlier action,” R.C.M." }, { "docid": "14256877", "title": "", "text": "defense counsel at the second hearing, during which he was represented by the assistant defense counsel,- and that appellant showed no desire at either hearing to exercise his rights to be represented by either a civilian counsel or an individual military counsel, even though properly advised of his rights to have such counsel present. Furthermore, we do not believe, as appellant contends, that the lawyer who succinctly and perfunctorily advised a Government witness at the hearing not to exercise his Article 31(b), UCMJ, 10 U.S.C. § 831(b), rights, and who also was tasked with advising the non-lawyer investigating officer, formed such a relationship to the Government so as to fall within the prohibitive language of United States v. Payne, 3 M.J. 354 (C.M.A.1977). Appellant successfully argued, before the military judge, that he was denied the opportunity to cross-examine a fingerprint expert, whose sworn statement had been introduced at the Article 32 investigation. Inasmuch as the hearing was reopened to accommodate appellant and cross-examination was conducted, we perceive no prejudice. It must be noted, however, that appellant’s plea of guilty effectively waived the alleged defects discussed above, United States v. Williams, 1 M.J. 1042 (N.C.M.R.1976), including those allegations surrounding appellant’s representation by counsel and his alleged lack of representation thereof. See United States v. Courtier, 20 U.S.C.M.A. 278, 43 C.M.R. 118 (1971). See also United States v. Blakney, 2 M.J. 1135 (C.G.C.M.R.1976). This assignment of error, therefore, has no merit either in fact or in law. II THE MILITARY JUDGE ERRED TO THE SUBSTANTIAL PREJUDICE OF APPELLANT IN DENYING TRIAL DEFENSE COUNSEL’S MOTION TO COMPEL THE GOVERNMENT TO RE-REFER THE CHARGES. The military judge ordered that the Article 32 hearing be reopened to allow appellant to cross-examine a fingerprint expert. The charges were not thereafter re-referred by the convening authority; rather, the military judge was advised that the convening authority had considered the new testimony and the addendum to the staff judge advocate’s Article 34, UCMJ, 10 U.S.C. § 834, advice letter and that the convening authority reaffirmed his referral of the charges to a general court-martial. The trial forum did" } ]

[ { "docid": "20771916", "title": "", "text": "suggesting the product was environmentally-friendly. He also sought to challenge the defendant’s use of the identical label on Shout brand stain remover that he had not purchased. Id. at *1, 2010 U.S. Dist. LEXIS 654 at *2. Because the labels were identical, the court denied defendant’s motion to dismiss for lack of standing and deferred ruling on the standing question until class certification. Id. at *3, 2010 U.S. Dist. LEXIS 654 at *7. Where the alleged misrepresentations or accused products are dissimilar, courts tend to dismiss claims to the extent they are based on products not purchased. For example, in Larsen v. Trader Joe’s Co., No. 11-cv-5188-SI (Docket No. 41), 2012 WL 5458396 (N.D.Cal. filed June 14, 2012), the court found that the plaintiffs lacked standing to bring claims based on products they did not purchase. There, the plaintiffs challenged “a wide range of Trader Joe’s products (cookies, apple juice, cinnamon rolls,' biscuits, ricotta cheese, and crescent rolls) which bear little similarity.” Astiana, 2012 WL 2990766, at *13 (finding Larsen distinguishable). And in Stephenson v. Neutrogena, the court dismissed claims based on products not purchased where plaintiff brought suit over six Neutrogena Naturals products but had only purchased the purifying facial cleanser. 2012 U.S. Dist. LEXIS 1005099, at 1. This court finds the approach in Astiana, Jamba Juice, and Stephenson to be persuasive and considers whether there are substantial similarities in the accused products and whether there are similar misrepresentations across product lines. C. Whether Miller Has Standing The issue is whether the five products and the alleged misrepresentations about them are sufficiently similar so that Miller has standing as to the four products he did not buy. The court holds that they are not sufficiently similar and that Miller does not have standing. The products have some similarities in packaging, composition, and labeling: they are branded “Ghirardelli Chocolate,” they do not contain cacao butter, they are packaged, priced, and sold next to products that contain chocolate or white chocolate, the products’ labeling (by juxtaposition to the brand “Ghirardelli Chocolate”) suggests a connection to chocolate even though the products are" } ]

[ { "docid": "8499517", "title": "", "text": "eases” regarding whether differences among class members “is a matter of Article III standing at all or whether it goes to the propriety of class certification pursuant to Federal Rule of Civil Procedure 23(a).” Gratz v. Bollinger, 539 U.S. 244, 263 & 263, n. 15, 123 S.Ct. 2411,156 L.Ed.2d 257 (2003). Neither party cites controlling Ninth Circuit authority that directly addresses the precise question, and the Court is not aware of any. Courts in this district have reached different conclusions on similar facts. See Miller v. Ghirardelli Chocolate Co., 912 F.Supp.2d 861 (N.D.Cal.2012) (recognizing split and analyzing cases). Under one theory, “[w]hen a plaintiff asserts claims based both on products that she purchased and products that she did not purchase, claims relating to products not purchased must be dismissed for lack of standing.” Granfield v. NVIDIA Corp., C 11-05403 JW, 2012 WL 2847575, at *6 (N.D.Cal. July 11, 2012); see also Her-skowitz v. Apple Inc., 940 F.Supp.2d 1131 (N.D.Cal.2013); Carrea v. Dreyer’s Grand Ice Cream, Inc., C 10-01044 JSW, 2011 W L 159380 (N.D.Cal. Jan. 10, 2011). Another group of ease adopts a middle-ground position, in which “the critical inquiry seems to be whether there is sufficient similarity between the products purchased and [those] not purchased.” Astiana v. Dreyer’s Grand Ice Cream, Inc., 11-cv-2910-EMC, 2012 WL 2990766, at * 11 (N.D.Cal. July 20, 2012); Anderson v. Jamba Juice Co., 888 F.Supp.2d 1000, 1006 (N.D.Cal.2012). If the products are similar enough that “an individualized factual inquiry [is] not needed for each product,” then there should be no dismissal for lack of standing. Stephenson v. Neutrogena, No. 12-ev-00426 PJH, 2012 WL 8527784, at *1, 2012 U.S. Dist. LEXIS 105099, at *3 (N.D.Cal. July 27, 2012). But if there is insufficient similarity, this line of cases holds that dismissal for lack of standing is appropriate. A third group of courts holds that as long as the named plaintiff has individual standing to bring claims regarding the products he or she did actually purchase, the question of whether a proposed class can bring claims related to other products is an issue properly addressed at" }, { "docid": "17531438", "title": "", "text": "state.”). This specifically includes provisions of the FDCA and NLEA that set forth food labeling and packing requirements. B. Standing as to the Non-Purchased Products To satisfy Article III standing, plaintiffs must allege: (1) a concrete, particularized, actual or imminent injury-in-fact; (2) that the injury is traceable to the defendant’s action; and (3) that a favorable ruling could redress the injury. See Friends of the Earth, Inc. v. Laidlaw Envtl. Seros. (TOC), Inc., 528 U.S. 167, 180-81, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000). Plaintiffs in a case like this one can show Article III standing by alleging that they purchased a product they otherwise would not have purchased, or that they spent too much on such a product, in reliance on a defendant’s representations in ads or on labels. See, e.g., Brazil v. Dole Food Co., Inc., 935 F.Supp.2d 947, 960-962 (N.D.Cal. Mar. 25, 2013). It is Plaintiffs’ burden to show standing. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). The parties do not dispute whether Plaintiffs have pled standing as to the Purchased Products. The question is whether they have standing as to the Non-Purchased Products. In putative class actions like this one, this Court has often held that plaintiffs can demonstrate standing at the pleading stage if they plead sufficiently detailed facts that the non-purchased products are “substantially similar” to the purchased products for which they have standing. See, e.g., Astiana v. Dreyer’s Grand Ice Cream, Inc., No. C 11-2910 EMC, 2012 WL 2990766, at *11 (N.D.Cal. July 20, 2012). Factors that other courts have considered include whether the challenged products are of the same kind, whether they are comprised of largely the same ingredients, and whether each of the challenged products bears the same alleged mislabeling. See id. at * 13. Defendant argues that Plaintiffs fail to establish standing or state a claim for the Non-Purchased Products. MTD at 5-6. First, Defendant notes that Plaintiffs added eighty-five new products — the Non-Purchased Products — to their SAC. Plaintiffs do not plead to have bought these products. Instead they" }, { "docid": "4555321", "title": "", "text": "“Some federal courts have held, as a matter of law, that a plaintiff lacks standing to assert such claims.” Brown v. Hain Celestial Grp., Inc., 913 F.Supp.2d 881, 889 (N.D.Cal.2012); see Granfield v. NVIDIA Corp., 2012 WL 2847575, at *6 (N.D.Cal. July 11, 2012) (“[W]hen a plaintiff asserts claims based both on products that she purchased and products that she did not purchase, claims relating to products not purchased must be dismissed for lack of standing.”). Other courts have held that “the standing inquiry is more appropriately resolved on a motion for class certification.” Brown v. Hain Celestial Grp., Inc., 913 F.Supp.2d at 890. Accordingly, such courts routinely deny Rule 12(b)(1) motions to dismiss and, instead, reserve the standing analysis until a motion for class certification. See Forcellati v. Hyland’s, Inc., 876 F.Supp.2d. 1155, 1161 (C.D.Cal. 2012) (denying defendant’s motion to dismiss because the “argument is better taken under the lens of typicality or adequacy of representation, rather than standing”). “The majority of the courts that have carefully analyzed the question hold that a plaintiff may have standing to assert claims for unnamed class members based on products he or she did not purchase so long as the products and alleged misrepresentations are substantially similar.” Brown v. Hain Celestial Grp., Inc., 913 F.Supp.2d at 890. Courts have found products with only minor differences in ingredients or flavors to be substantially similar for standing purposes. See Astiana v. Dreyer’s Grand Ice Cream, Inc., 2012 WL 2990766, at *13 (N.D.Cal. July 20, 2012) (the fact different ice creams have different ingredients is “not dispositive as Plaintiffs are challenging the same basic mislabeling practice across different product flavors”); Anderson v. Jamba Juice Co., 888 F.Supp.2d 1000, 1006 (N.D.Cal.2012) (plaintiff, who purchased several flavors of at-home “smoothie” kits, had standing to bring claims on behalf of purchasers of other flavors because products were sufficiently similar and “same alleged misrepresentation was on all of the smoothie kit[s] regardless of flavor”); see also Brown v. Hain Celestial Grp., Inc., 913 F.Supp.2d at 890 (“Where product composition is less important, the cases turn on whether the alleged" }, { "docid": "17531439", "title": "", "text": "Plaintiffs have pled standing as to the Purchased Products. The question is whether they have standing as to the Non-Purchased Products. In putative class actions like this one, this Court has often held that plaintiffs can demonstrate standing at the pleading stage if they plead sufficiently detailed facts that the non-purchased products are “substantially similar” to the purchased products for which they have standing. See, e.g., Astiana v. Dreyer’s Grand Ice Cream, Inc., No. C 11-2910 EMC, 2012 WL 2990766, at *11 (N.D.Cal. July 20, 2012). Factors that other courts have considered include whether the challenged products are of the same kind, whether they are comprised of largely the same ingredients, and whether each of the challenged products bears the same alleged mislabeling. See id. at * 13. Defendant argues that Plaintiffs fail to establish standing or state a claim for the Non-Purchased Products. MTD at 5-6. First, Defendant notes that Plaintiffs added eighty-five new products — the Non-Purchased Products — to their SAC. Plaintiffs do not plead to have bought these products. Instead they simply provide long lists of products that they flatly state contain unlawful or misleading statements. SAC ¶¶ 44 (“All Natural” labeling), 62 (“All Natural” and “No MSG” labeling), 84 (“0 Grams Trans Fat” labeling). The SAC provides no other detail about these products. Defendant argues that because Plaintiffs allege no facts stating that the Non-Purchased Products are “the same or similar” to the Purchased Products with respect to Plaintiffs’ claims, Plaintiffs cannot — even in a putative class action — assert causes of action as to products that are not in fact substantially similar to the products they actually bought. See MTD at 6-9. Defendant also notes that while Plaintiffs include purported images of the Non-Purchased Products’ labels in their SAC, see SAC Ex. 8 (product labels), the SAC does not state that any Plaintiff actually saw these labels. MTD at 9-10. Plaintiffs oppose these arguments, contending that the eighty-five Non-Purchased Products are “substantially similar” to the five Purchased Products. According to Plaintiffs, all of the Products are “potato chips, corn chips, and puffed corn" }, { "docid": "20771912", "title": "", "text": "on a broader range of injuries.” Id. at 324, 120 Cal.Rptr.3d 741, 246 P.3d 877. B. Case Law On Standing to Sue Over Products the Named Plaintiff Never Purchased Ghirardelli argues that Miller lacks standing for the four products he did not buy. Mot., ECF No. 7 at 10. Miller counters that he has established standing and — in any event — the issue of whether he can bring claims based on the four products he did not purchase should be addressed at the class certification stage. Opp’n, ECF No. 16 at 11-12. There is no controlling authority on whether Plaintiffs have standing for products they did not purchase. See, e.g., Donohue v. Apple, Inc., 871 F.Supp.2d 913, 921-22 (N.D.Cal.2012) (collecting cases). Some federal courts have held, as a matter of law, that a plaintiff lacks standing to assert such claims. See, e.g., Granfield v. NVIDIA Corp., No. C 11-05403 JW, 2012 WL 2847575, at *6 (N.D.Cal. July 11, 2012) (“when a plaintiff asserts claims based both on products that she purchased and products that she did not purchase, claims relating to products not purchased must be dismissed for lack of standing”); Mlejnecky v. Olympus Imaging America Inc., No. 2:10-CV-02630 JAM-KJN, at *4 (N.D.Cal. Apr. 19, 2011) (dismissing claims based on products not purchased for failure to allege economic injury under the UCL); Carrea v. Dreyer’s Grand Ice Cream, Inc., No. C 10-01044 JSW, 2011 WL 159380, at *3 (N.D.Cal. Jan. 10, 2011) (dismissing claims based on products other than those purchased by the plaintiff). Other courts have held that the standing inquiry is more appropriately resolved on a motion for class certification. See, e.g., Cardenas v. NBTY, Inc., 870 F.Supp.2d 984, 992-93 (E.D.Cal.2012) (analyzing “solely under Rule 23” whether plaintiff may assert claims on behalf of purchasers of products she did not purchase); Forcellati v. Hyland’s, Inc., 876 F.Supp.2d 1155, 1161 (C.D.Cal.2012) (denying defendants’ motion to dismiss because the “argument is better taken under the lens of typicality or adequacy of representation, rather than standing”). The majority of the courts that have carefully analyzed the question hold that' a" }, { "docid": "8499518", "title": "", "text": "10, 2011). Another group of ease adopts a middle-ground position, in which “the critical inquiry seems to be whether there is sufficient similarity between the products purchased and [those] not purchased.” Astiana v. Dreyer’s Grand Ice Cream, Inc., 11-cv-2910-EMC, 2012 WL 2990766, at * 11 (N.D.Cal. July 20, 2012); Anderson v. Jamba Juice Co., 888 F.Supp.2d 1000, 1006 (N.D.Cal.2012). If the products are similar enough that “an individualized factual inquiry [is] not needed for each product,” then there should be no dismissal for lack of standing. Stephenson v. Neutrogena, No. 12-ev-00426 PJH, 2012 WL 8527784, at *1, 2012 U.S. Dist. LEXIS 105099, at *3 (N.D.Cal. July 27, 2012). But if there is insufficient similarity, this line of cases holds that dismissal for lack of standing is appropriate. A third group of courts holds that as long as the named plaintiff has individual standing to bring claims regarding the products he or she did actually purchase, the question of whether a proposed class can bring claims related to other products is an issue properly addressed at the class certification stage. See Kosta v. Del Monte Corp., 12-CV-01722-YGR, 2013 WL 2147413, at * 15 (N.D.Cal. May 15, 2013) (“any concerns regarding the differences among products at issue are better resolved at the class certification stage”); see also Koh v. S.C. Johnson & Son, Inc., C-09-00927 RMW, 2010 WL 94265 (N.D.Cal. Jan. 6, 2010). To these courts, “ ‘[representative parties who have a direct and substantial interest have standing; the question whether they may be allowed to present claims on behalf of others who have similar, but not identical, interests depends not on standing, but on an assessment of typicality and adequacy of representation.” Greenwood v. Compucredit Corp., CIV. 08-04878 CW, 2010 WL 4807095, at *3 (quoting 7AA Wright et al., Federal Practice and Procedure (3d.2005) § 1758.1, pp. 388-89 (N.D.Cal. Nov. 19, 2010); see also Fallick v. Nationwide Mut. Ins. Co., 162 F.3d 410, 423 (6th Cir.1998) (holding that, because plaintiff had standing to sue for injury arising from his own benefit plan, his ability to represent class members with different benefit" }, { "docid": "4555324", "title": "", "text": "who purchased any product in the supplement line. The court, in denying defendant’s motion to dismiss, found plaintiff had standing to assert claims relating to the product he had purchased, and noted the court would analyze solely under Rule 23 “whether Plaintiff may be allowed to present claims on behalf of purchasers of the remaining Osteo Bi-Flex products.” Id. at 992; accord Aguilar v. Boulder Brands, Inc., 2013 WL 2481549, at *3 (S.D.Cal. June 10, 2013). The Court finds the reasoning in Cardenas v. NBTY, Inc. persuasive. There is no question plaintiffs have standing to assert claims relating to the product they did purchase. Further, there are substantial similarities between all of defendants’ Glucosamine Supplements, and the alleged misrepresentations on the labels of the Glucosamine Supplements are nearly identical. Therefore, the Court finds the appropriate time to consider whether plaintiffs can bring claims on behalf of purchasers of all of the various Glucosamine Supplements is at the class certification stage, not on a motion to dismiss. See Cardenas v. NBTY, Inc., 870 F.Supp.2d at 992; Brown v. Hain Celestial Grp., Inc., 913 F.Supp.2d at 890-92; Koh v. S.C. Johnson & Son, Inc., 2010 WL 94265, at *3 (N.D.Cal. Jan. 6, 2010) (denying defendants motion to dismiss plaintiffs claims relating to products he did not purchase, noting “this is not a case in which plaintiff is asserting claims against defendants that never harmed him,” and “defer[ing] ruling on the issue until the class certification stage”); see also Elias v. Ungar’s Food Products, Inc., 252 F.R.D. 233, 243 (D.N.J.2008) (granting in part motion for class certification and noting, “the fact that the named plaintiffs did not purchase some of the products at issue does not render plaintiffs’ claims atypical from the potential class members nor does it defeat commonality”). Accordingly, the motion to dismiss plaintiffs’ claims relating to products they did not purchase is denied. C. Failure to State a Claim 1. New York and Connecticut Consumer Protection Statutes New York General Business Law § 349 provides “[deceptive acts or practices in the conduct of any business, trade or commerce or in" }, { "docid": "2225244", "title": "", "text": "(N.D.Cal.2012); Stephenson v. Neutrogena Corp., C 12-0426 PJH, 2012 WL 8527784, at *1 (N.D.Cal. July 27, 2012); Astiana v. Dreyer’s Grand Ice Cream, Inc., No. C-11-2910 EMC, 2012 WL 2990766, at *11 (N.D.Cal. July 20, 2012)). A final group holds that the issue should be addressed not in a motion to dismiss but in a motion for certification. See Miller, 912 F.Supp.2d at 869 (citing Cardenas v. NBTY, Inc., 870 F.Supp.2d 984, 992-93 (E.D.Cal.2012); Forcellati v. Hyland’s, Inc., 876 F.Supp.2d 1155, 1161 (C.D.Cal.2012)); Clancy v. The Bromley Tea Co., 12-CV-03003-JST, 2013 WL 4081632, at *5 (N.D.Cal. Aug. 9, 2013) (citations and internal quotation marks omitted); accord Cardenas, 870 F.Supp.2d at 992; see also In re Frito-Lay N. Am., Inc. All Natural Litig., 12-MD-2413 RRM RLM, 2013 WL 4647512, at *13 (E.D.N.Y. Aug. 29, 2013). Here, Plaintiffs’ claims encompass hundreds of different products. Some claims involve local in-store representations that are not on actual product labels. Plaintiffs likely do not meet the substantially similar test or requirements for class certification on many of their claims. However, it is not necessary to resolve this issue since Plaintiffs’ claims are dismissed for lack of plausible reliance (see below). 2. Unseen Representations Whole Foods argues Plaintiffs failed to plead they actually viewed false representations before purchasing the products and the representations were a reason for making the purchases. See Cattie v. Wal-Mart Stores, Inc., 504 F.Supp.2d 939, 947 (S.D.Cal.2007) (“[Fjailure to allege reliance leaves open the possibility that Plaintiff is attempting to sue on behalf of other injured parties even though she herself was not injured.”); Brazil v. Dole Food Co., Inc., 12-CV01831-LHK, 2013 WL 5312418, at *9 (N.D.Cal. Sept. 23, 2013) (plaintiff did not have standing under the UCL, FAL, or CLRA when he failed to allege that he either viewed or relied on the defendant’s alleged misrepresentations). The complaint in this case includes allegations that Plaintiffs “saw the false, misleading, and deceptive representations detailed.” (Doc. 1 ¶ 126). The complaint further alleges: [Plaintiffs] reasonably believed the 365 Organic products were organic, as labeled and the ‘ORGANIC’ representation was a significant reason for" }, { "docid": "17180372", "title": "", "text": "party invoking federal jurisdiction bears the burden of establishing these elements.” Lujan, 504 U.S. at 561, 112 S.Ct. 2130. Defendants argue that Brazil cannot prove that he suffered an “injury in fact” because his alleged injury arises from the allegation that the products he purchased are “legally worthless.” Mot. at 13 (citing to FAC ¶¶ 80, 92, 105, 126, 128, 138, 148, 171, 172, 216, 226, 236, 245, 254, 276, 286, 297). Defendants characterize this as “a lawyer’s musings,” rather than a “real harm.” But see Lanovaz v. Twinings North America, Inc., No. 12-02646, 2013 WL 675929, *6 (N.D.Cal. Feb. 25, 2013) (holding, in the context of a similar putative class action lawsuit asserting claims based on defendant’s alleged misbranding of green tea, that defendant’s argument regarding injury based on “legally worthless” products “misses the mark” because plaintiff “would not have purchased the product if she had known that the label was unlawful.”). Defendants also contend that Brazil does not satisfy the “injury in fact” requirement as he does not allege any physical harm caused by eating the fruit. In support of this argument, Defendants cite to Boysen v. Walgreen Co., No. 11-CV-06262, 2012 WL 2953069 (N.D.Cal. July 19, 2012), in which Judge Illston dismissed for lack of Article III standing a complaint brought by a purchaser of fruit juice who claimed injury attributable to trace amounts of lead and arsenic in the products. Specifically, Judge Illston dismissed the complaint because “[plaintiff] does not allege that had defendant’s juice been differently labeled, he would have purchased an alternative juice ... plaintiff only alleges that he purchased and consumed the fruit juices, but that the levels of lead and arsenic in defendant’s product were unsatisfactory to him.” Id. *7. In opposition, Brazil contends that his allegations are clearly sufficient to plead standing. Opp’n at 12. Specifically, Brazil alleges economic injury based on the following: (1) purchasing products he would not have otherwise purchased had he known the truth about Defendants’ “unlawful labeling practices and actions,” see FAC ¶¶ 77, 91, 104, 125, and 127; and (2) paying an “unwarranted premium” due" }, { "docid": "18089912", "title": "", "text": "the accused products and whether there are similar misrepresentations across product lines such that Plaintiffs’ injury is sufficiently similar to that suffered by class members who purchased other accused products. C. Plaintiffs Have Standing to Bring Claims Based on Products They Did Not Purchase Here, • Plaintiffs argue that the court should address Hain’s standing argument in the context of a motion for class certification under Rule 23, rather than a motion to strike, because they allege uniform misrepresentations across product lines. MTS Opp’n, ECF No. 95-at 12-16. Based on the record presented, the court agrees. This court recently issued an order on this subject in another labeling case,' finding that plaintiff lacked standing to bring claims based on products he did not purchase. See Miller v. Ghirardelli Chocolate Co., 912 F.Supp.2d 861, No. C 12-04936 LB, 2012 WL 6096593 (N.D.Cal. Dec., 2012). There, Miller sought to bring claims based on Ghirardelli’s alleged misrepresentations on the packaging of the white baking chips he purchased and four products he did not purcháse. The accused products varied widely in composition (baking chips, three drink powders, and baking wafers), an'd some .were sold in commercial, rather than consumer markets. Miller’s false labeling claims were based on various alleged misrepresentations, including the use of the word “flavored” on two products, the words “classic” and “white” on other products, and “romance language” that differed from product to product. All of the accused products, however, were marked with the same “Ghirardelli Chocolate” logo. Miller argued that the logo — when viewed in the context of the entire label — misled consumers into thinking that the accused products contained white chocolate when they did not. The court found that Miller lacked standing because the logo claim— the only common misrepresentation across product lines — was relatively unimportant considered in the context of the varying alleged misrepresentations. Thus, the court held, Miller’s injury was not sufficiently similar to the injury suffered by purchasers of other products. This case is different from Ghirardelli Chocolate. Like that case, Plaintiffs com plain about labels on products they did not purchase and" }, { "docid": "11441581", "title": "", "text": "pleaded a claim under the “unfair” prong of the UCL. Id. at 25. 1. Standing to Bring Restitution Claims for ColdFusion Customers Some courts reserve the question of whether plaintiffs may assert claims based on products they did not buy until ruling on a motion for class certification. See, e.g., Forcellati v. Hyland’s, Inc., 876 F.Supp.2d 1155, 1161 (C.D.Cal.2012); Cardenas v. NBTY, Inc., 870 F.Supp.2d 984, 992 (E.D.Cal.2012). Others “hold that a plaintiff may have standing to assert claims for unnamed class members based on products he or she did not purchase so long as the products and alleged misrepresentations are substantially similar.” Miller v. Ghirardelli Chocolate Co., 912 F.Supp.2d 861, 869 (N.D.Cal.2012) (citing cases); see also, e.g., Coined v. ZonePerfect Nutrition Co., No. 12-2907, 2012 WL 6737800, at *4 (N.D.Cal. Dec. 28, 2012); Astiana v. Dreyer’s Grand Ice Cream, Inc., No. 11-2910, 2012 WL 2990766, at *11-13 (ND.Cal. July 20, 2012). Still other courts have dismissed claims for lack of standing when the plaintiff did not purchase the product on which the claim is based. See, e.g., Granfield v. NVIDIA Corp., No. 11-5403, 2012 WL 2847575, at *6 (N.D.Cal. July 11, 2012) (“[W]hen a plaintiff asserts claims based both on products that she purchased and products that she did not purchase, claims relating to products not purchased must be dismissed for lack of standing.”); Carrea v. Dreyer’s Grand Ice Cream, Inc., No. 10-1044, 2011 WL 159380, at *3 (N.D.Cal. Jan. 10, 2011), aff'd on other grounds, 475 Fed.Appx. 113 (9th Cir.2012), This Court has previously applied the “substantially similar” approach and will do so again here. E.g., Werdebaugh v. Blue Diamond Growers, No. 12-2724, 2013 WL 5487236, at *12 (N.D.Cal. Oct. 2, 2013); Brazil v. Dole Food Co., No. 12-1831, 2013 WL 5312418, at *7 (N.D.Cal. Sep 23, 2013). Under this approach, both the products themselves and the misrepresentations the plaintiff challenges must be similar, though not identical. In this case, the misrepresentations and omissions at issue are the same for both ColdFusion and Creative Cloud, as all Adobe products are governed by the same privacy policy. See Compl." }, { "docid": "18089911", "title": "", "text": "on the standing question until class certification. Id. at *3, 2010 U.S. Dist. LEXIS 654, at *7. Where the alleged misrepresentations or accused products are dissimilar, courts tend .to dismiss claims to the extent they are based on products not purchased. For example, in Larsen v. Trader Joe’s Co., No. 11-cv-5188-SI (Docket No. 41), 2012 WL 5458396 (N.D.Cal. filed June 14, 2012), the court found that the plaintiffs lacked standing to bring claims based on products they did not purchase. There, the plaintiffs challenged “a wide range of Trader Joe’s products (cookies, apple juice, cinnamon rolls, biscuits, ricotta cheese, and crescent rolls) which bear little similarity,” Dreyer’s, 2012 WL 2990766, at *13 (finding Larsen distinguishable). And in Stephenson v. Neutrogena, the court dismissed claims based on products not purchased where plaintiff brought suit over six Neutrogena Naturals products but had only purchased the purifying facial cleanser. 2012 U.S. Dist. LEXIS 1005099, at 1. This court finds the approach in Dreyer’s, Jamba Juice, and Stephenson to be persuasive and considers whether there are substantial similarities in the accused products and whether there are similar misrepresentations across product lines such that Plaintiffs’ injury is sufficiently similar to that suffered by class members who purchased other accused products. C. Plaintiffs Have Standing to Bring Claims Based on Products They Did Not Purchase Here, • Plaintiffs argue that the court should address Hain’s standing argument in the context of a motion for class certification under Rule 23, rather than a motion to strike, because they allege uniform misrepresentations across product lines. MTS Opp’n, ECF No. 95-at 12-16. Based on the record presented, the court agrees. This court recently issued an order on this subject in another labeling case,' finding that plaintiff lacked standing to bring claims based on products he did not purchase. See Miller v. Ghirardelli Chocolate Co., 912 F.Supp.2d 861, No. C 12-04936 LB, 2012 WL 6096593 (N.D.Cal. Dec., 2012). There, Miller sought to bring claims based on Ghirardelli’s alleged misrepresentations on the packaging of the white baking chips he purchased and four products he did not purcháse. The accused products varied" }, { "docid": "4555322", "title": "", "text": "may have standing to assert claims for unnamed class members based on products he or she did not purchase so long as the products and alleged misrepresentations are substantially similar.” Brown v. Hain Celestial Grp., Inc., 913 F.Supp.2d at 890. Courts have found products with only minor differences in ingredients or flavors to be substantially similar for standing purposes. See Astiana v. Dreyer’s Grand Ice Cream, Inc., 2012 WL 2990766, at *13 (N.D.Cal. July 20, 2012) (the fact different ice creams have different ingredients is “not dispositive as Plaintiffs are challenging the same basic mislabeling practice across different product flavors”); Anderson v. Jamba Juice Co., 888 F.Supp.2d 1000, 1006 (N.D.Cal.2012) (plaintiff, who purchased several flavors of at-home “smoothie” kits, had standing to bring claims on behalf of purchasers of other flavors because products were sufficiently similar and “same alleged misrepresentation was on all of the smoothie kit[s] regardless of flavor”); see also Brown v. Hain Celestial Grp., Inc., 913 F.Supp.2d at 890 (“Where product composition is less important, the cases turn on whether the alleged misrepresentations are sufficiently similar across product lines.”). Recently, district courts have disagreed on this issue in the specific context of glucosamine supplements. In Pearson v. Target Corp., plaintiff alleged defendant violated an Illinois consumer protection statute by selling and distributing a line of glucosamine supplements it knew to be ineffective. 2012 WL 7761986, at *1 (N.D.Ill. Nov. 9, 2012). The court held the plaintiff did not have standing to assert claims relating to products he did not purchase, rhetorically asking, “how could he possibly have been injured by representations made on a product he did not buy?” Id.; accord Padilla v. Costco Wholesale Co., 2013 WL 195769, at *3 (N.D.Ill. Jan. 16, 2013). Other courts have taken a different— and, in this Court’s view, better — approach. For example, in Cardenas v. NBTY, Inc., 870 F.Supp.2d 984 (E.D.Cal. 2012), a consumer brought a putative class action against the seller of a line of glucosamine supplements. There, plaintiff purchased only one of eight “Osteo Bi-Flex” glucosamine products, and sought to certify a class consisting of consumers" }, { "docid": "8499516", "title": "", "text": "Clancy lacks standing to “assert[] claims regarding products he never bought and website statements he never saw.” Motion, at 4:20-21. 1. Products Clancy Did Not Buy Clancy, the named plaintiff, has alleged that he bought two of the defendant’s tea products. FAC, 115. Defendants do not dispute that this is sufficient for him personally to establish standing to assert a cause of action relating to those purchases. “In a class action, standing is satisfied if at least one named plaintiff meets the requirements.” Bates, 511 F.3d at 985. As this is a proposed class action complaint, however, the complaint also describes claims that would be brought on behalf of the proposed class, and those claims relate to different Bromley products that Clancy did not buy. Bromley argues that since “[y]ou can’t be injured by what you didn’t buy,” Clancy cannot assert injury-in-fact as to those proposed class allegations, and that claims relating to those products should be dismissed and the relating averments stricken. The Supreme Court has noted that “there is tension in [its] prior eases” regarding whether differences among class members “is a matter of Article III standing at all or whether it goes to the propriety of class certification pursuant to Federal Rule of Civil Procedure 23(a).” Gratz v. Bollinger, 539 U.S. 244, 263 & 263, n. 15, 123 S.Ct. 2411,156 L.Ed.2d 257 (2003). Neither party cites controlling Ninth Circuit authority that directly addresses the precise question, and the Court is not aware of any. Courts in this district have reached different conclusions on similar facts. See Miller v. Ghirardelli Chocolate Co., 912 F.Supp.2d 861 (N.D.Cal.2012) (recognizing split and analyzing cases). Under one theory, “[w]hen a plaintiff asserts claims based both on products that she purchased and products that she did not purchase, claims relating to products not purchased must be dismissed for lack of standing.” Granfield v. NVIDIA Corp., C 11-05403 JW, 2012 WL 2847575, at *6 (N.D.Cal. July 11, 2012); see also Her-skowitz v. Apple Inc., 940 F.Supp.2d 1131 (N.D.Cal.2013); Carrea v. Dreyer’s Grand Ice Cream, Inc., C 10-01044 JSW, 2011 W L 159380 (N.D.Cal. Jan." }, { "docid": "4555323", "title": "", "text": "misrepresentations are sufficiently similar across product lines.”). Recently, district courts have disagreed on this issue in the specific context of glucosamine supplements. In Pearson v. Target Corp., plaintiff alleged defendant violated an Illinois consumer protection statute by selling and distributing a line of glucosamine supplements it knew to be ineffective. 2012 WL 7761986, at *1 (N.D.Ill. Nov. 9, 2012). The court held the plaintiff did not have standing to assert claims relating to products he did not purchase, rhetorically asking, “how could he possibly have been injured by representations made on a product he did not buy?” Id.; accord Padilla v. Costco Wholesale Co., 2013 WL 195769, at *3 (N.D.Ill. Jan. 16, 2013). Other courts have taken a different— and, in this Court’s view, better — approach. For example, in Cardenas v. NBTY, Inc., 870 F.Supp.2d 984 (E.D.Cal. 2012), a consumer brought a putative class action against the seller of a line of glucosamine supplements. There, plaintiff purchased only one of eight “Osteo Bi-Flex” glucosamine products, and sought to certify a class consisting of consumers who purchased any product in the supplement line. The court, in denying defendant’s motion to dismiss, found plaintiff had standing to assert claims relating to the product he had purchased, and noted the court would analyze solely under Rule 23 “whether Plaintiff may be allowed to present claims on behalf of purchasers of the remaining Osteo Bi-Flex products.” Id. at 992; accord Aguilar v. Boulder Brands, Inc., 2013 WL 2481549, at *3 (S.D.Cal. June 10, 2013). The Court finds the reasoning in Cardenas v. NBTY, Inc. persuasive. There is no question plaintiffs have standing to assert claims relating to the product they did purchase. Further, there are substantial similarities between all of defendants’ Glucosamine Supplements, and the alleged misrepresentations on the labels of the Glucosamine Supplements are nearly identical. Therefore, the Court finds the appropriate time to consider whether plaintiffs can bring claims on behalf of purchasers of all of the various Glucosamine Supplements is at the class certification stage, not on a motion to dismiss. See Cardenas v. NBTY, Inc., 870 F.Supp.2d at 992;" }, { "docid": "20771913", "title": "", "text": "she did not purchase, claims relating to products not purchased must be dismissed for lack of standing”); Mlejnecky v. Olympus Imaging America Inc., No. 2:10-CV-02630 JAM-KJN, at *4 (N.D.Cal. Apr. 19, 2011) (dismissing claims based on products not purchased for failure to allege economic injury under the UCL); Carrea v. Dreyer’s Grand Ice Cream, Inc., No. C 10-01044 JSW, 2011 WL 159380, at *3 (N.D.Cal. Jan. 10, 2011) (dismissing claims based on products other than those purchased by the plaintiff). Other courts have held that the standing inquiry is more appropriately resolved on a motion for class certification. See, e.g., Cardenas v. NBTY, Inc., 870 F.Supp.2d 984, 992-93 (E.D.Cal.2012) (analyzing “solely under Rule 23” whether plaintiff may assert claims on behalf of purchasers of products she did not purchase); Forcellati v. Hyland’s, Inc., 876 F.Supp.2d 1155, 1161 (C.D.Cal.2012) (denying defendants’ motion to dismiss because the “argument is better taken under the lens of typicality or adequacy of representation, rather than standing”). The majority of the courts that have carefully analyzed the question hold that' a plaintiff may have standing to assert claims for unnamed class members based on products he or she did not purchase so long as the products and alleged misrepresentations are substantially similar. See, e.g., Stephenson v. Neutrogena, No. 12-cv-00426 PJH, 2012 U.S. Dist. LEXIS 1005099 (N.D.Cal. July 27, 2012) (dismissing claims based on products not purchased because the purchased products were not “similar enough to the unpurchased products such that an individualized factual inquiry was not needed for each product”); see Astiana v. Dreyer’s Grand Ice Cream, Inc., No. C-11-2910 EMC, 2012 WL 2990766, at *11 (N.D.Cal. July 20, 2012) (noting that in most reasoned opinions, “the critical inquiry seems to be whether there is sufficient similarity between the products purchased and not purchased”); see also Anderson v. Jamba Juice, 888 F.Supp.2d 1000, 1005-06 (N.D.Cal.2012) (relying on Astiana for the same proposition). For example, in Astiana, the plaintiffs found sufficient similarity where the plaintiffs challenged: the same kind of food products (i.e., ice cream) as well as the same labels for all of the products —" }, { "docid": "21850211", "title": "", "text": "107 L.Ed.2d 603 (1990) (internal quotation marks and citations omitted). “It is the burden of the party who seeks the exercise of jurisdiction in his favor clearly to allege facts demonstrating he is a proper party to invoke judicial resolution of the dispute.” Id. (internal quotation marks and citations omitted). When considering whether a plaintiff has established standing, however, district courts may permit a plaintiff to amend its complaint or consider affidavits containing particularized facts supporting standing. Thompson, 15 F.3d at 249 (quoting Warth, 422 U.S. at 501, 95 S.Ct. 2197); Spann v. Colonial Village, Inc., 899 F.2d 24, 28 n.1 (D.C.Cir.1990). A. Small’s Standing Defendant argues that plaintiff Small lacks standing to assert any claims against it because the Third Amended Complaint fails to identify (a) any specific stores at which Small has experienced discrimination, (b) when he experienced discrimination at any of defendant’s stores, and (c) a sufficiently specific intent to return to those stores at some time in the imminent future. The Third Amended Complaint states that Small “lives in the immediate neighborhood” of defendant’s store at 58 Court Street in Brooklyn and that he cannot enter that store because of an architectural barrier. Third Am. Compl. ¶¶ 10-12. The Third Amended Complaint further states that Small “regularly travels in the immediate vicinity of several of the GNC stores” in New York City, specifically naming seven stores, including the one at 58 Court Street in Brooklyn. Id. at ¶ 14. The Third Amended Complaint states that Small regularly purchases vitamins and other nutritional supplements and that he has purchased such products from various GNC stores that have no architectural barriers to entry. Id. at ¶¶ 15-16. The Complaint alleges that, in those stores, Small has often had to seek assistance from employees because product bins prevent him from accessing the entirety of those stores. Id. at ¶ 17. Finally, the Complaint states that Small “will continue to purchase” products from various GNC stores “along his usual routes of travel” and that he “would like to be able to purchase them at all the stores on his routes" }, { "docid": "18089910", "title": "", "text": "Co., the court held that the plaintiff, who purchased several flavors of at-home smoothie kits labeled “All Natural,” had standing to bring claims on behalf of purchasers of other flavors because the products were sufficiently similar and because the “same alleged misrepresentation was on all of the smoothie kit[s] regardless of flavor____” 888 F.Supp.2d 1000, 1006 (N.D.Cal.2012). Where product composition is less important, the cases turn on whether the alleged misrepresentations are sufficiently similar across product lines. For example, in Koh v. S.C. Johnson & Son, Inc, No. C-09-00927 RMW, 2010 WL 94265, at *1, *2-3, 2010 U.S. Dist. LEXIS 654, at *2, *6-7 (Jan. 5, 2010), the plaintiff purchased Windex brand glass cleaner that bore a “Greenlist” label suggesting the product was environmentally-friendly. He also sought to challenge the defendant’s use of the identical label on Shout brand stain remover that he had not purchased. Id. at *1, 2010 U.S. Dist. LEXIS 654, at *2. Because the labels were identical, the court denied defendant’s motion to dismiss for lack of standing and deferred ruling on the standing question until class certification. Id. at *3, 2010 U.S. Dist. LEXIS 654, at *7. Where the alleged misrepresentations or accused products are dissimilar, courts tend .to dismiss claims to the extent they are based on products not purchased. For example, in Larsen v. Trader Joe’s Co., No. 11-cv-5188-SI (Docket No. 41), 2012 WL 5458396 (N.D.Cal. filed June 14, 2012), the court found that the plaintiffs lacked standing to bring claims based on products they did not purchase. There, the plaintiffs challenged “a wide range of Trader Joe’s products (cookies, apple juice, cinnamon rolls, biscuits, ricotta cheese, and crescent rolls) which bear little similarity,” Dreyer’s, 2012 WL 2990766, at *13 (finding Larsen distinguishable). And in Stephenson v. Neutrogena, the court dismissed claims based on products not purchased where plaintiff brought suit over six Neutrogena Naturals products but had only purchased the purifying facial cleanser. 2012 U.S. Dist. LEXIS 1005099, at 1. This court finds the approach in Dreyer’s, Jamba Juice, and Stephenson to be persuasive and considers whether there are substantial similarities in" }, { "docid": "3650281", "title": "", "text": "lost money due to Defendants’ unlawful representations is sufficient to establish Plaintiffs standing to bring a claim under the CLRA for any misrepresentations she relied upon relating to the Osteo Bi-Flex Regular Strength product that she purchased. It is less clear whether Plaintiff has standing to bring claims under the UCL and the CLRA as to the Osteo Bi-Flex products that she did not purchase and the advertising she did not view. The court in Bayer Corp. provided, in dicta, that a plaintiff “cannot expand the scope of his claims to include a product he did not purchase or advertisements relating to a product that he did not rely upon.” Bayer Corp., 2010 WL 476688, at *5. Some district courts in the Ninth Circuit have followed this view. See, e.g., Carrea v. Dreyer’s Grand Ice Cream, Inc., No. 3:10-cv-01044-JSW, 2011 WL 159380, at *3 (N.D.Cal. Jan. 10, 2011) (holding that plaintiff has standing to bring UCL and CLRA claims for the Drumstick ice cream products purchased, but dismissing plaintiffs claims for the Dibs ice cream product, which plaintiff never alleged he purchased or suffered a loss), aff'd, 475 Fed.Appx. 113, No. 11-15263, 2012 WL 1131526 (9th Cir. April 5, 2012) (unpublished) (declining to address the district court’s standing determination); Mlejnecky v. Olympus Imaging Am. Inc., No. 2:10-cv-2630, 2011 WL 1497096, at *4 (E.D.Cal. April 19, 2011) (Mendez, J.) (dismissing plaintiffs CLRA and UCL claims relating to a camera model that has the “same underlying defects” and used the same advertisements as the model she purchased, but for which she did not allege any economic injury). Other recent court decisions, however, have applied a different approach when facing, in a class action, a named plaintiffs assertion of claims related to products that she did not buy. For example, in Carideo v. Dell, Inc., the court upheld claims by the named plaintiffs for computer models that they had not purchased, but that were subject to the “same core factual allegations and causes of action.” 706 F.Supp.2d 1122, 1134 (W.D.Wash.2010). And in Hewlett-Packard v. Superior CL, the court upheld class certification for UCL," }, { "docid": "11441580", "title": "", "text": "McGlynn, Kar, and McHenry have adequately pleaded both standing and the necessary elements to bring their UCL injunction claim. Accordingly, the Court DENIES Adobe’s Motion to Dismiss this claim as to those Plaintiffs. D. UCL Restitution Claim Plaintiffs’ fourth and final cause of action is for restitution under the UCL on behalf of purchasers of Adobe’s ColdFu sion and Creative Cloud products and services (“UCL restitution claim”). See Compl. ¶¶ 133-140. Plaintiffs assert claims under both the “fraudulent” and “unfair” prongs of the UCL on the basis that Adobe “fail[ed] to disclose that it does not enlist industry standard security practices.” Compl. ¶ 135. Adobe objects to Plaintiffs’ UCL restitution claim on three grounds. First, Adobe contends that the proposed representatives of a restitution class, Plaintiffs Halpain and McGlynn, lack standing to represent ColdFusion customers as both allege only that they subscribed to Creative Cloud. Mot. at 20. Second, Adobe contends that Plaintiffs have not adequately pleaded an omission under the “fraudulent” prong of the UCL. Id. Third, Adobe contends that Plaintiffs have not adequately pleaded a claim under the “unfair” prong of the UCL. Id. at 25. 1. Standing to Bring Restitution Claims for ColdFusion Customers Some courts reserve the question of whether plaintiffs may assert claims based on products they did not buy until ruling on a motion for class certification. See, e.g., Forcellati v. Hyland’s, Inc., 876 F.Supp.2d 1155, 1161 (C.D.Cal.2012); Cardenas v. NBTY, Inc., 870 F.Supp.2d 984, 992 (E.D.Cal.2012). Others “hold that a plaintiff may have standing to assert claims for unnamed class members based on products he or she did not purchase so long as the products and alleged misrepresentations are substantially similar.” Miller v. Ghirardelli Chocolate Co., 912 F.Supp.2d 861, 869 (N.D.Cal.2012) (citing cases); see also, e.g., Coined v. ZonePerfect Nutrition Co., No. 12-2907, 2012 WL 6737800, at *4 (N.D.Cal. Dec. 28, 2012); Astiana v. Dreyer’s Grand Ice Cream, Inc., No. 11-2910, 2012 WL 2990766, at *11-13 (ND.Cal. July 20, 2012). Still other courts have dismissed claims for lack of standing when the plaintiff did not purchase the product on which the claim is" } ]

[ { "docid": "8929405", "title": "", "text": "contracts was a gift to her at the time the annuities were purchased and, therefore, not the subject of any estate tax at all upon the death of the husband who purchased the policies. The second point is that the basis of valuation is so inaccurate as to be arbitrary. Finally, the taxpayer says that if th i value of the contracts is to be included Li the decedent’s estate such value must be determined according to a Regulation claimed to be applicable at the time of the decedent’s death and not by amendments to the Regulations subsequently incorporated. I. Were the annuities to be included in the decedent’s estate? The executor of the estate admits that he opens argument upon this point with a heavy burden to overcome. The statute involved is § 302 (c) of the Revenue Act of 1926 as amended. Last year both the Fifth Circuit and the Ninth Circuit held, in cases indistinguishable with the one presented here, that the value of the annuities is to be included in decedent’s estate for estate tax purposes. Commissioner of Internal Revenue v. Wilder’s Estate, 5 Cir., 1941, 118 F.2d 281, certiorari denied 1941, 314 U.S. 634, 62 S.Ct. 67, 86 L.Ed.-; Commissioner of Internal Revenue v. Clise, 9 Cir., 1941, 122 F.2d 998, certiorari denied 1942, 62 S.Ct. 914, 86 L.Ed. -. Even without the authority of these decisions in the other Circuits we should be constrained to reach the same result. However, the question was so thoroughly dis cussed in the opinion of the court in the Clise decision that it would smack of pedantry to repeat, so soon thereafter, an analysis of the problems dealt with in that opinion. We agree with that court that the practical effect of such annuity contracts is to reserve to the annuitant the enjoyment of the property transferred and to postpone the fruition of the economic benefits to the second annuitant until after the death of the first, and that such transfers are “ ‘too much akin to testamentary dispositions not to be subjected to the same excise.’ ”" } ]

[ { "docid": "21330440", "title": "", "text": "effect “a bona fide sale for a full and adequate consideration in money or money’s worth”, because of the wife’s- surrender of her marital rights on creation of the trust. But the contention that the wife gave any consideration in return for her husband’s retention of a future estate in himself (or in his legal representatives) would be fantastic. Whatever consideration she furnished was only in return for the promised annuity and the equitable life estate created for her benefit. That consideration was her release of dower and of other rights in her husband’s property and of her claim for support. But we have held that a release of dower and of the right to support are not adequate considerations “in money or money’s worth” within the meaning of the section allowing deductions in computing the amount of an estate subject'to tax, Meyer’s Estate v. Commissioner, 2 Cir., 110 F.2d 367; Helvering v. United States Trust Co., 2 Cir., 111 F.2d 576, and are not disposed to recede from the position taken in those decisions. From the foregoing it is plain that the corpus of the trust created in 1912 may be taxed under Section 302 (a) as a reversion, or under Section 302 (c) as an in terest of which the decedent made a transfer by trust “intended to take effect in possession or enjoyment at or after his death.” Taxation of the Equitable Life Estate of the Decedent’s Widow in the 1912 Trust. The taxpayer claims a deduction from the gross estate of a sum equal to the value of the widow’s remaining life estate in the trust as computed at the time of his death. While this contention may seem reasonable prima facie, it cannot, in our opinion, be sustained. The trust was created as security for the payment of the $4,500 annuity. The annuity was in refurn for a release of dower and other marital rights including the right to support. The.husband had agreed to pay any deficiency of income of the trust which might be required to make good the annuity and the trust agreement" }, { "docid": "8425530", "title": "", "text": "Follansbee for profits alleged to have been acquired by the decedent in violation of law. After giving consideration to the above claims for refund, the District Director notified the executors proposing to allow the claims to the extent of approving a refund of $2,112.13 and to reject them as to the balance. The District Director disallowed the item of $5,000 claimed as legal fees paid to the firm of Boyle, Feller and Stone. He also included as part of the statutory gross estate an additional item which had not theretofore been included as part of the decedent’s statutory gross estate. The item included was the amount of the proceeds, $10,000, of the annuity policy paid to the estate by Assurance pursuant to the assignment executed by Follansbee. On April 24, 1950, the Orphans’ Court of Beaver County, Pennsylvania, ordered the distribution of the estate. This order awarded the proceeds of the Assurance annuity contract as income to Beaver Trust Company and Helen Darby Stone, trustees, pending final audit of the federal estate tax return and the amended fiduciary income tax return for the year 1948, and, after audit thereof, any balance to Helen Darby Stone, widow of the decedent, as income beneficiary as provided in the last will and testament of Stone. I Section 811(a) of the Internal Revenue Code of 1939, provides that property shall be included in a decedent’s gross estate to the extent of the interest therein of the decedent at the time of his death, 26 U.S.C.A. § 811(a). The government contends that the annuity paid to Stone’s estate by Assurance was includible in his gross estate predicated upon this provision of law. Upon a review of the factual circumstances under which the annuity was credited, it would appear that this action is governed by a recent decision of this circuit which concluded that an annuity perfected under similar conditions was includible in decedent’s gross estate, Estate of Garber v. Commissioner, 3 Cir., 271 F.2d 97. Death benefits includible in the gross estate of the decedent are those derived either from funds which represent deferred compensation" }, { "docid": "8080899", "title": "", "text": "Hurd v. CIR, 160 F.2d 610, 612 (1st Cir. 1947), and Davis v. CIR, supra, 27 T.C. at 381-382, with Kramer v. United States, supra, 406 F.2d at 1368-1369. Affirmed. . Three judges concurred on the ground that the death benefits were taxable under § 2033, which taxes the value of all property to the extent of the decedent’s interest therein at the time of death. Two judges dissented on the ground that the decedent never had any interest in the death benefits during his lifetime. . 26 U.S.C. § 2033 requires that the decedent possess an interest in the property at the time of his death, and §§ 2035-2038 require that the decedent transfer an interest in property prior to death. . Under Massachusetts law, where there is no employment contract, employment is terminable at will by either party. Fenton v. Federal Street Building Trust, 310 Mass. 609, 612, 39 N.E.2d 414, 435 (1942). . The only case cited by petitioners in which a court has held that a death benefit was not subject to estate taxation, without explicitly finding the benefit to be a mere gratuity, is Libbey v. United States, 147 F.Supp. 383 (N.D.Cal.1956). In that case the employee had to choose whether to accept a ten-year annuity granted by the company which provided death benefits for his wife or to convert the ten-year annuity into a life annuity, which would have deprived his wife of any death benefits. The court held that the employee’s failure to convert the annuity was not sufficient action on his part to constitute a “transfer” to his wife under the Code. The theory under which we decide this case might require the contrary result in Libbey since it suggests that Porter’s agreement to render services to the company was the type of consideration that might make the death benefits agreements a “transfer” under the Code. See discussion infra. . We note that the taxpayers in many of the pre-1954 cases cited supra would now be taxed under § 2039, e. g., Hanner v. Glenn, supra; Estate of Barr, supra; and Estate" }, { "docid": "11891582", "title": "", "text": "annuity when it became payable to his former wife. This was done on the ground that, when the decedent elected to receive a reduced annuity himself, and to have an annuity paid to a designated dependent after his death, he made a transfer within the meaning of Section 811(c) of the Internal Revenue Code, 26 U.S.C.A. § 811(c). 'A majority of the Tax Court reversed the Commissioner “on the theory that the decedent’s right to receive an annuity mas property, part of which he transferred to his wife” but that, nevertheless, the property was not includible in the decedent’s gross estate since \"the decedent did not make a transfer within the meaning of section 811(c) of the Code, as amended by P. L. 378 (1949), in electing to receive a reduced annuity.” Three judges concurred only in the result, apparently because they •were unwilling to overrule Estate of Higgs, 12 T.C. 280, reversed, 3 Cir., 184 F.2d 427, where it was held that a similar request by an employee under a like plan was a transfer within section 811(c). These three judges relied on the fact that the statute had since been changed “to require that the transferor must retain a reversionary interest if the transfer is to be taxable under section 811(c)” and that no reversion was here retained by the decedent. With that we agree and consequently need not decide whether a transfer within the meaning of section 811(c) was made. The sole contention of the Commissioner now is that the value of the annuity payable to Theresa C. Twogood was includible in the decedent’s gross estate by virtue of section 811(c) (1) (B) in that the decedent made a transfer of property under which he retained for his life the possession or enjoyment of, or the right to, the income from the property. We also have no occasion to pass upon whether the decedent’s election under the plan was a transfer of property within the meaning of this section of the statute since, as we view the facts, no life interest was retained by the •decedent in" }, { "docid": "8080900", "title": "", "text": "to estate taxation, without explicitly finding the benefit to be a mere gratuity, is Libbey v. United States, 147 F.Supp. 383 (N.D.Cal.1956). In that case the employee had to choose whether to accept a ten-year annuity granted by the company which provided death benefits for his wife or to convert the ten-year annuity into a life annuity, which would have deprived his wife of any death benefits. The court held that the employee’s failure to convert the annuity was not sufficient action on his part to constitute a “transfer” to his wife under the Code. The theory under which we decide this case might require the contrary result in Libbey since it suggests that Porter’s agreement to render services to the company was the type of consideration that might make the death benefits agreements a “transfer” under the Code. See discussion infra. . We note that the taxpayers in many of the pre-1954 cases cited supra would now be taxed under § 2039, e. g., Hanner v. Glenn, supra; Estate of Barr, supra; and Estate of Saxton, supra. See Gray v. United States, 410 F.2d 1094 (3d Cir. 1969). . Most of the oases c-ited by the Tax Court and by respondent deal with a statutory exception to the rule, which allows certain third-party creditor beneficiaries to bring a “bill to reach and apply” in equity. Mass.Gen.Laws eh. 214, § 3(7). The one case cited involving a third party donee beneficiary makes clear that such a beneficiary can sue only if some of the consideration for the agreement moves from him. Green v. Green, 298 Mass. 19, 21, 9 N.E.2d 413, 415 (1937). Despite the broad dictum in Choate v. Assessors of Boston, 304 Mass. 298, 303-304, 23 N.E,2d 882, 886 (1939), the only cases that we have found in which a beneficiary was allowed to sue in the name of the party who made the contract are Grime v. Borden, 166 Mass. 198, 44 N.E. 216 (1896), and Pay v. Guynon, 131 Mass.31 (1881). Both are cases in which a husband and wife made a covenant with a third" }, { "docid": "11315877", "title": "", "text": "control over her capital but protected her from such claims as resulted in the suit mentioned. Other than being handicapped by blindness, the decedent was in good health until September, 1935, when symptoms of disease appeared which progressed until her death from cancer. A firm and active belief in her professed religion led her to state, during her lifetime, that her blindness was nonexistent and that death was merely a manifestation of error, which she would not recognize as a possible fact. In the circumstances, the Board found that “The purchase of the foregoing annuities was not made in contemplation of death.” The parties pose two questions for answer : I. Whether the proceeds of each of the two life insurance policies, issued June 30, 1933, and December 28, 1934, respectively, were to be regarded as “insurance” for the purposes of estate tax under § 302(g) of the Revenue Act of 1926, 26 U.S.C.A. Int. Rev.Code, § 811(g), and not includible in the gross estate, or subject to the provisions of § 302(c) of said Act, as amended, and not exempt? II. Whether the value at decedent’s death of the sixteen joint and survivor annuity contracts was required to be included in the decedent’s gross estate as transfers “in contemplation of or intended to take effect in possession or enjoyment at or after” the donor’s death, or were the rights of the second annuitants simply gifts inter vivos ? The statutes necessary to intelligent consideration of the problems involved are set forth in a marginal note. Respecting the first question, the Commissioner contends, “The combined effect of the simultaneous issuance of the single-premium life insurance policies and annuity contracts was to eliminate the risk inherent in life insurance, thus precluding exclusion of the funds as insurance.” No argument is made, but attention is drawn to what is termed an “identical issue” confronting the Supreme Court at the time of filing of the Commissioner’s brief here. The respondent concurred in this suggestion. The Supreme Court handed down its opinion in Helvering v. LeGierse, 312 U.S. 531, 61 S.Ct. 646, 649, 85" }, { "docid": "18399771", "title": "", "text": "JAMESON, District Judge. Plaintiff seeks recovery of federal estate taxes paid on decedent’s interest in certain life insurance and annuity policies. Ashby and Mary Stewart were married in 1906 and their marital relationship continued until Mary’s death on February 21, 1951. They were residents of California. At the time of the wife’s death there were 26 insurance and annuity policies on the life of the husband, and seven annuity policies naming the wife as annuitant. The premiums on all of the policies were paid with community property funds. Two questions are presented: (1) whether one-half of the cash value of the 26 policies on the life of the husband was properly includable in the wife’s gross estate; and (2) whether all, or one-half, of the proceeds of five of the annuity policies in the name of the wife should be included. Policies on Husband’s Life The Government contends that under the California law the decedent had a vested ownership interest of one-half of the cash value of the 26 policies on her husband’s life, and that the policies are accordingly includable under Section 811 (a), Int.Rev.Code of 1939 to the extent of her interest, and if not includable under § 811(a), her interest is includable under either § 811(c)(1)(C) as a transfer intended to take effect in possession or enjoyment after her death or under § 811(d) as a revocable transfer. Appellee contends that decedent’s community interest in the insurance policies was merely the right to object to a payment of the proceeds to a third party beneficiary or to secure the proceeds where she was named beneficiary, both of which rights were contingent upon her surviving her husband; and that when she died before her husband these community property rights of protection died with her and were extinguished. In determining whether one-half of the cash surrender value of these policies was includable in decedent’s gross estate, three questions are presented with respect to each of the 26 policies: (1) Was the policy community property under California law at the time of decedent’s death? (2) If so, what was the" }, { "docid": "23163684", "title": "", "text": "his death. The Equitable Life Assurance Society thereupon paid the widow $6,071.46 under the annuity contract, $18,928 under the life contract and $182.24 as accumulated dividends, making a total of $25,181.70. On these facts the Commissioner of Internal Revenue determined that the proceeds of the two contracts were includible in decedent's estate for estate tax purposes. The petitioners, as executors of the estate, were assessed a deficiency of $5,376.11. After paying that amount they filed a claim for refund. The claim was rejected. They then brought this suit for refund. The District Court sustained the action of the Commissioner and dismissed the complaint. 52 F. Supp. 704. The Second Circuit Court of Appeals affirmed this judgment. 144 F. 2d 373. An apparent conflict of authority among lower courts on the question presented led us to grant certiorari. Helvering v. Le Gierse, 312 U. S. 531, makes it plain that these two contracts, which must be considered together, contain none of the true elements of insurance risk. Section 302 (g) of the Act, relating to amounts receivable “as insurance under policies taken out by the decedent upon his own life,\" is therefore inapplicable. The sole question, then, is whether the proceeds of the contracts are includible in the decedent’s gross estate under § 302 (c) as the subject of a transfer intended to take effect in possession or enjoyment at or after the decedent’s death. That question we answer in the affirmative. Section 302 (c), as demonstrated by Helvering v. Hallock, 309 U. S. 106, reaches all inter vivos transfers which may be resorted to, as a substitute for a will, in making dispositions of property operative at death. It thus sweeps into the gross estate all property the ultimate possession or enjoyment of which is held in suspense until the moment of the decedent’s death or thereafter. Fidelity-Philadelphia Trust Co. v. Bothensies, 324 U. S. 108, 111. In so doing, § 302 (c) pierces all the verbiage of “unwitty diversities of the law of property.” Helvering v. Hallock, supra, 118. Testamentary dispositions of an inter vivos nature cannot escape the" }, { "docid": "9665611", "title": "", "text": "regular Service Retirement Annuity, a Joint and Survivor Retirement Annuity of a reduced amount for himself and his wife, commencing at his retirement on or after that date. Such reduced amount shall be payable to them jointly while both are living and two-thirds (%’s) of such reduced amount will be payable thereafter to the survivor while living. “If the member, upon request of the Board of Directors, continues in active service after the normal retirement date, such Joint and Survivor Retirement Annuity will not commence until he actually retires. * * The Government claims that the value of the joint and survivor annuity is includible as part of the decedent’s gross estate under section 811(c)(1)(B) of the Internal Revenue Code, as amended by section 7 of the Technical Changes Act of 1949, 26 U.S.C.A. 811(c)(1)(B). This section provides that the gross estate of a. decedent shall include the value at the time of .his death of property to the extent of any interest therein of which he had made a transfer by trust or otherwise, “under which he has retained for his life * * * (i) the possession or enjoyment of, or the right to the income from, the property,, * * * » In support of its position, the Government cites such cases as Commissioner of Internal Revenue v. Clise, 9 Cir., 1941, 122 F.2d 998, certiorari denied 315 U.S. 821, 62 S.Ct. 914, 86 L.Ed. 1218; Commissioner of Internal Revenue v. Wilder’s Estate, 5 Cir., 1941, 118 F.2d 281, certiorari denied 314 U.S. 634, 62 S.Ct. 67, 86 L.Ed. 509 and Mearkle’s Estate v. Commissioner of' Internal Revenue, 3 Cir., 1942, 129 F.2d 386. These cases involve situations in which the taxpayer made an outright purchase of an annuity contract providing for the payment of annuities to himself for ■ life and at his death to a surviving annuitant for life. It is contended that the result of the election made by the decedent on April 30 was, in effect, a purchase by him. of a joint and survivor annuity contract and a transfer under which the" }, { "docid": "11891581", "title": "", "text": "designating -his then wife, Theresa C. Twogood, as his dependent who was to be entitled to receive an annuity of $416.67 monthly if he lived to retire and she survived him. Subsequently, on June 18, 1938, the decedent and -his wife executed a separation agreement, incident to a decree of divorce he obtained from her in that year, in which he agreed never to change his designation of her under the plan. When he reached his normal retirement date, June 1, 1942, the decedent was still interned by the Japanese but, after he returned to this country, he retired, on July 1, 1943, and was paid his annuity at the reduced amount elected until his death. After his death, in 1944, monthly payments to his former wife were made in accordance with the terms of the plan. A federal estate tax return was duly filed. After an audit, the Commissioner increased the amount of the gross estate, as shown in the return, by adding $107,945.-59 which was the value at the decedent’s death of the annuity when it became payable to his former wife. This was done on the ground that, when the decedent elected to receive a reduced annuity himself, and to have an annuity paid to a designated dependent after his death, he made a transfer within the meaning of Section 811(c) of the Internal Revenue Code, 26 U.S.C.A. § 811(c). 'A majority of the Tax Court reversed the Commissioner “on the theory that the decedent’s right to receive an annuity mas property, part of which he transferred to his wife” but that, nevertheless, the property was not includible in the decedent’s gross estate since \"the decedent did not make a transfer within the meaning of section 811(c) of the Code, as amended by P. L. 378 (1949), in electing to receive a reduced annuity.” Three judges concurred only in the result, apparently because they •were unwilling to overrule Estate of Higgs, 12 T.C. 280, reversed, 3 Cir., 184 F.2d 427, where it was held that a similar request by an employee under a like plan was a" }, { "docid": "43512", "title": "", "text": "sum of one thousand dollars ($1,000.00) ; and should Morris M. Hirsh survive said Amalie Hirsh then in such case said ” (naming the child with whom the agreement was made) “ agrees to pay after the death of said Amalie Hirsh to said Morris M. Hirsh on the first day of May, and on the first day of November of each year thereafter, only, however, that said Morris M. Hirsh is then living, the sum of one thousand dollars ($1,000.00).” These four agreements were all signed by Morris M. Hirsh and one by each of the children with whom each agreement was separately made, respectively. Pursuant to these agreements securities of the value of $50,000.00 were transferred to each of decedent’s four children — an aggregate of $200,-000.00. The value of the securities transferred to the children as aforesaid was at the time of said transfer and of the decedent’s death $200,000.00, and the rate of interest in the securities so transferred was 6 per cent per annum. At the time the said contracts of November 1, 1919, were made each of the said four children was financially able, in his or her own right, to pay the agreed annuity, regardless of said securities. When plaintiffs made return for the estate tax they did not include in the value of the gross estate the value of any of the four transfers, or any part of them, and upon audit of the return the Commissioner of Internal Revenue held that the transfer of the securities in the sum of $50,000 to each of the children was in part a transfer intended to take effect in possession or enjoyment at or after the death of Morris M. Hirsh, within the meaning of section 402 (c) of the revenue act of 1918, 40 Stat. 1057, 1097. The commissioner determined this value to be two-thirds of the amount of $200,000, or $133,333.33, as being the sum which invested at 6% would produce an annuity of $8,000 per annum (each child stipulating to pay $2,000 as stated). The sum of $133,333.33 was accordingly included" }, { "docid": "2276252", "title": "", "text": "survive said Amalie Hirsh then in such ease said” (naming the child with whom the agreement was made) “agrees to pay after the death of said Amalie Hirsh to said Morris M. Hirsh on the first day of May, and on the first day of November of each year thereafter, only, however, that said Morris M. Hirsh is then living, the sum of one thousand dollars ($1,000,00).” These four agreements were all signed by Morris M. Hirsh and one by each of the children with whom each agreement was separately made, respectively. Pursuant to these agreements securities of the value of $50,000 were transferred to each of decedent’s four children — an aggregate of $200,-000. The value of the securities transferred to the children as aforesaid was at the time of said transfer and of the decedent’s death $200,000, and the rate of interest in the securities so transferred was 6 per cent, per annum. At the time the said contracts of November 1, 1919, were made each of the said four children was financially able, in his or her own right, to pay the agreed annuity, regardless of said securities. When plaintiffs made return for the estate tax they did not include in the value of the gross estate the value of any of the four transfers, or any part of them, and upon audit of the return the Commissioner of Internal Revenue held that the transfer of the securities in the sum of $50,000 to each of the children was in part a transfer intended to take effect in possession or enjoyment at or after the death of Morris M. Hirsh, within the meaning of section 402(c) of the Revenue Act of 1918, 40 Stat. 1057, 1097. The Commissioner determined this value to be two-thirds of the amount of $200,000, or $133,333.33, as being the sum which invested at 6 per cent, would produce an annuity of $8,000 per annum (each child stipulating to pay $2,000 as stated). The sum of $133,-333.33 was accordingly included in the value of the gross estate. The additional estate tax caused by" }, { "docid": "6401207", "title": "", "text": "payment was payable to the decedent, or the decedent possessed the right to receive such annuity or payment, either alone or in conjunction with another for his life or for any period not ascertainable without reference to his death or for any period which does not in fact end before his death. (b) Amount Includible. — Subsection (a) shall apply to only such part of the value of the annuity or other payment receivable under such contract or agreement as is proportionate to that part of the purchase price therefor contributed by the decedent. For purposes of this section, any contribution by the decedent’s employer or former employer to the purchase price of such contract or agreement (whether or not to an employee’s trust or fund forming part of a pension, annuity, retirement, bonus or profit sharing plan) shall be considered to be contributed by the decedent if made by reason of his employment. These provisions were new in the 1954 Code. Under the prior 1939 Code, there were no provisions specifically applicable to annuities or other types of payments made under pension, profit-sharing, or retirement plans of employers. Hence under that Code, the taxability of annuities or such other payments had to be determined by reference to the general provisions of section 811 — particularly those in sections 811(c) (1) (B) and 811(c) (1) (C) which pertained to transfers with possession or enjoyment retained, and transfers intended to take effect in possession or enjoyment at or after death. Also, Congress recognized in its drafting of the bill that became the 1954 Code, that it was not clear under existing law whether a joint and survivor annuity purchased by the decedent’s employer (as distinguishable from one purchased by the decedent) or an annuity to which both the decedent and his employer made contributions, was includable in the decedent’s gross estate. See S. Rept. No. 1622, 83d Cong., 2d Sess., p. 123. Thus, section 2039 was added 1o (he estate tax by the 1954 Code in an effort to supply a satisfactory system for taxing employee death benefits. It is significant" }, { "docid": "43513", "title": "", "text": "of November 1, 1919, were made each of the said four children was financially able, in his or her own right, to pay the agreed annuity, regardless of said securities. When plaintiffs made return for the estate tax they did not include in the value of the gross estate the value of any of the four transfers, or any part of them, and upon audit of the return the Commissioner of Internal Revenue held that the transfer of the securities in the sum of $50,000 to each of the children was in part a transfer intended to take effect in possession or enjoyment at or after the death of Morris M. Hirsh, within the meaning of section 402 (c) of the revenue act of 1918, 40 Stat. 1057, 1097. The commissioner determined this value to be two-thirds of the amount of $200,000, or $133,333.33, as being the sum which invested at 6% would produce an annuity of $8,000 per annum (each child stipulating to pay $2,000 as stated). The sum of $133,333.33 was accordingly included in the value of the gross estate. The additional estate tax caused by such inclusion is the basis of the present suit. The commissioner determined that decedent did not make any of the transfers here involved in contemplation of death and based his action on section 402 of the revenue act of 1918, 40 Stat. 1097, which provides, in part, as follows: “ That the value of the gross estate of the decedent shall be determined by including the value at the time of his death of all property, real and personal, tangible or intangible, wherever situated— “(c) To the extent of any interest therein of which the decedent has at any time made a transfer, or with respect to which he has at any time created a trust, * * * intended to take effect in possession or enjoyment at or after his death * * * except in a case of a bona fide sale for a fair consideration in money or money’s worth.” In order that the issue which arises in this" }, { "docid": "2276253", "title": "", "text": "able, in his or her own right, to pay the agreed annuity, regardless of said securities. When plaintiffs made return for the estate tax they did not include in the value of the gross estate the value of any of the four transfers, or any part of them, and upon audit of the return the Commissioner of Internal Revenue held that the transfer of the securities in the sum of $50,000 to each of the children was in part a transfer intended to take effect in possession or enjoyment at or after the death of Morris M. Hirsh, within the meaning of section 402(c) of the Revenue Act of 1918, 40 Stat. 1057, 1097. The Commissioner determined this value to be two-thirds of the amount of $200,000, or $133,333.33, as being the sum which invested at 6 per cent, would produce an annuity of $8,000 per annum (each child stipulating to pay $2,000 as stated). The sum of $133,-333.33 was accordingly included in the value of the gross estate. The additional estate tax caused by such inclusion is the basis of the present suit. The Commissioner determined that decedent did not make any of the transfers here involved in contemplation of death, and based his action on section 402 of the Revenue Act of 1918, 40 Stat. 1097, which provides, in part, as follows: “That the value of the gross estate of the decedent shall be determined by including the value at the time of his death of all property, real or personal, tangible or intangible, wherever situated— * \" * “(c) To the extent of any interest therein of which the decedent has at any time made a transfer, or with respect to which he has at any time created a trust, * * ° intended to take effect in possession or enjoyment at or after his death * * • except in ease of a bona fide sale \"for a fair consideration in money or money’s worth.” In order that the issue which arises in this case may be clearly understood, it should be stated that, while the" }, { "docid": "11315894", "title": "", "text": "to determine whether we are to adhere to a harmonizing principle in the construction of § 302(c), or whether we are to multiply gossamer distinctions between the present cases, and the three earlier ones. Freed from the distinctions introduced by the St. Louis Trust cases, the Klein case furnishes such a harmonizing principle.” [page 118 of 309 U.S., page 451 of 60 S.Ct., 84 L.Ed. 604, 125 A.L.R. 1368] See, also, Commissioner v. Wilder’s Estate, 5 Cir., 118 F.2d 281. It is not coining a phrase to say that taxation is a practical matter, dealing with practical problems. The practical effect of the annuity contracts was to reserve to Mrs. Clise the enjoyment of the property transferred and to postpone the fruition of the economic benefits thereof to the second annuitants until her death. In the light of the Hallock case the transfers were “too much akin to testamentary dispositions not to be subjected to the same excise.” As we read the statute and understand the law of the Klein and Hallock cases, the Commissioner’s position here is well taken. Because there is a lack of agreement between the taxpayers and the Commissioner as to the precise value of at least some of the annuity contracts, as of the date of the decedent’s death, it becomes necessary to remand the case to the Board of Tax Appeals for a finding of true value. Reversed and remanded. Revenue Act of 1926, 44 Stat. 9, 70, as amended by tbe Act of June 6, 1932, 47 Stat. 279: “Sec. 302. Tbe value of tbe gross estate of the decedent shall be determined by including the value at the time of his death of all property, real or personal, tangible or intangible, wherever situated— ****** “(c) To the extent of any interest therein of which the decedent has at any time made a transfer, by trust or otherwise, in contemplation of or intended to take effect in possession or enjoyment at or after his death, or of which he has at any time made a transfer, by trust or otherwise, under which he" }, { "docid": "9665613", "title": "", "text": "decedent retained enjoyment within the meaning of section 811(c), as construed in the Clise and other cases referred to above. The plaintiffs, on the other hand, deny that the joint and survivor annuity here was purchased outright by the decedent as an independent insurance contract; contrariwise they contend it was an alternative benefit provided for in the general retirement plan for employees, available to the employee-members of the plan through the exercise of the right of election as an integral part of the plan. They assert that the annuity is non-taxable under section 811(c). In support they cite Higgs’ Estate, v. Commissioner of Internal Revenue, 3 Cir., 1950, 184 F.2d 427, and Commissioner of Internal Revenue v. Twogood’s Estate, 2 Cir., 1952, 194 F.2d 627, 629. In his letter rejecting the executor’s claim for refund, the Commissioner stated: “The claim is based mainly on the decision of the United States Court of Appeals for the Third Circuit in estate of William J. Higgs v. Commissioner of Internal Revenue, and $10,682.25 of the refund claimed represents that portion of the tax paid due to the inclusion in the taxable estate of the value of a survivorship annuity payable to his wife on his death. However, the Bureau is not following the Higgs case and takes the position that this annuity was properly included in the taxable estate.” This letter of rejection is dated December 19, 1951. Subsequently, on February 25, 1952, the Court of Appeals of this Circuit decided the Twogood case, supra. There, as here, the decedent was, while living, a member of an employees’ retirement plan which contained a right of election in the ■employee to request payment under the plan to a reduced annuity upon his retirement and to designate a dependent to whom annuity payments would be made after his death in a further reduced amount if that designated person survived him. During his life, the decedent there also made the election and the Bureau claimed the value of the annuity payable to the surviving widow was taxable under section 811(c). The court held that the annuity" }, { "docid": "8425531", "title": "", "text": "the amended fiduciary income tax return for the year 1948, and, after audit thereof, any balance to Helen Darby Stone, widow of the decedent, as income beneficiary as provided in the last will and testament of Stone. I Section 811(a) of the Internal Revenue Code of 1939, provides that property shall be included in a decedent’s gross estate to the extent of the interest therein of the decedent at the time of his death, 26 U.S.C.A. § 811(a). The government contends that the annuity paid to Stone’s estate by Assurance was includible in his gross estate predicated upon this provision of law. Upon a review of the factual circumstances under which the annuity was credited, it would appear that this action is governed by a recent decision of this circuit which concluded that an annuity perfected under similar conditions was includible in decedent’s gross estate, Estate of Garber v. Commissioner, 3 Cir., 271 F.2d 97. Death benefits includible in the gross estate of the decedent are those derived either from funds which represent deferred compensation to the decedent or granted under plans which explicitly give the decedent direct contractual rights in the funds, Estate of Garber v. Commissioner, supra. I am satisfied that the proceeds of the annuity contract qualify under both. It is stipulated that plaintiffs were advised by Follansbee that Follansbee treated said annuity as an expense and that the Stone Estate should consider the proceeds as additional compensation. The plaintiffs in conformity with this advice filed an amended income tax return for 1948 including therein the proceeds of the annuity as additional compensation to the estate and paid the income tax thereon. Moreover the minutes of February 28, 1947 specify that the annuity was to be purchased in consideration for decedent’s continued services. It is therefore apparent that the parties intended that the annuity represented additional, though deferred, compensation to the decedent. This fact of itself would be sufficient to render the annuity in-cludible in the gross estate. But even assuming that I were in error in holding the annuity arrangement as deferred compensation, I believe an" }, { "docid": "13701660", "title": "", "text": "SIBLEY, Circuit Judge. A, M. Wilder died May 19, 1937, resident in Louisiana, survived by. his wife, Josephine.. In computing estate taxes the Commissioner included in the estate one-half of $104,356, which he determined to be the then value of four annuity contracts issued by New York Life Insurance Company. The Board of Tax Appeals, following its decision in Qise v. Commissioner, 41 B.T.A. 820, now pending on review before the Circuit Court of Appeals for the Ninth Circuit, held the half value of the contracts not includable in Wilder’s estate. The correctness of that determination is the sole question. Wilder and his wife had a community estate under the laws of Louisiana. In 1934 he .obtained three annuity contracts, and in 1936 a fourth, paying for them lump sums from the community estate. The aggregate investment was $119,830. The contracts, all of the same form, promise to pay each month sums which aggregate $500 per month to Wilder during his lifetime and upon his death to the wife Josephine, if she be living, until her death. The contracts are irrevocable, and provide for no change of beneficiary or cash surrender or loan values. Wilder was fifty-six years old in 1934 and his wife nine years younger. The pertinent part of the estate tax statute, 26 U.S.C.A. Internal Revenue Code § 811, reads: “The value of the gross estate of the decedent shall be determined by including the value at the time of his death of all property, real or personal, tangible or intangible * * * (c) to the extent of any interest therein of which the decedent has at any time made a transfer, by trust or otherwise, in contemplation of.or intended to.take effect in possession or enjoyment at or after his death, or of which he has at any time made a transfer, by trust or otherwise, under which he has retained for his life * * * (1) the possession or enjoyment of, or the right to the income from, the property * * The taxability of a transfer is not to be determined by the" }, { "docid": "9665612", "title": "", "text": "“under which he has retained for his life * * * (i) the possession or enjoyment of, or the right to the income from, the property,, * * * » In support of its position, the Government cites such cases as Commissioner of Internal Revenue v. Clise, 9 Cir., 1941, 122 F.2d 998, certiorari denied 315 U.S. 821, 62 S.Ct. 914, 86 L.Ed. 1218; Commissioner of Internal Revenue v. Wilder’s Estate, 5 Cir., 1941, 118 F.2d 281, certiorari denied 314 U.S. 634, 62 S.Ct. 67, 86 L.Ed. 509 and Mearkle’s Estate v. Commissioner of' Internal Revenue, 3 Cir., 1942, 129 F.2d 386. These cases involve situations in which the taxpayer made an outright purchase of an annuity contract providing for the payment of annuities to himself for ■ life and at his death to a surviving annuitant for life. It is contended that the result of the election made by the decedent on April 30 was, in effect, a purchase by him. of a joint and survivor annuity contract and a transfer under which the decedent retained enjoyment within the meaning of section 811(c), as construed in the Clise and other cases referred to above. The plaintiffs, on the other hand, deny that the joint and survivor annuity here was purchased outright by the decedent as an independent insurance contract; contrariwise they contend it was an alternative benefit provided for in the general retirement plan for employees, available to the employee-members of the plan through the exercise of the right of election as an integral part of the plan. They assert that the annuity is non-taxable under section 811(c). In support they cite Higgs’ Estate, v. Commissioner of Internal Revenue, 3 Cir., 1950, 184 F.2d 427, and Commissioner of Internal Revenue v. Twogood’s Estate, 2 Cir., 1952, 194 F.2d 627, 629. In his letter rejecting the executor’s claim for refund, the Commissioner stated: “The claim is based mainly on the decision of the United States Court of Appeals for the Third Circuit in estate of William J. Higgs v. Commissioner of Internal Revenue, and $10,682.25 of the refund claimed represents" } ]

[ { "docid": "11266386", "title": "", "text": "is actually innocent). But see id. at-, 113 S.Ct. at 874-875 (Scalia, J., concurring, joined by Thomas, J.) (suggesting that the Constitution does not forbid the execution of an innocent person). . In Townsend v. Sain Chief Justice Warren noted that \"the existence merely of newly discovered evidence relevant to the guilt of a state prisoner is not a ground for relief on federal habeas corpus.\" 372 U.S. 293, 317, 83 S.Ct. 745, 759, overruled in other respects by Keeney v. Tamayo-Reyes, - U.S. -, 112 S.Ct. 1715. Many federal courts have concluded that innocence alone is not cognizable as a constitutional claim. See, e.g., Spencer v. Murray, 5 F.3d 758, 765 (4th Cir.1993), certiorari denied, -U.S. -, 114 S.Ct. 1208, 127 L.Ed.2d 555 (1994); Ellis v. Collins, 956 F.2d 76, 78-79 (5th Cir.1992), certiorari denied,-U.S.-, 112 S.Ct. 1285, 117 L.Ed.2d 510; Swindle v. Davis, 846 F.2d 706, 707 (11th Cir.1988) (per curiam). Some courts, however, have suggested — apparently on due process grounds — that newly discovered evidence tending to show innocence is grounds for the issuance of the writ if the evidence is so strong that it would probably lead to an acquittal upon retrial. See, e.g., Jeffries v. Blodgett, 5 F.3d 1180, 1187-1188 (9th Cir.1993), certiorari denied, -U.S.-, 114 S.Ct. 1294, 127 L.Ed.2d 647 (1994); Lewis v. Erickson, 946 F.2d 1361, 1362 (8th Cir.1991). But see Swan v. Peterson, 6 F.3d 1373, 1384 (9th Cir.1993) (the newly discovered evidence must both bear on the constitutionality of the petitioner's conviction and be so strong that it probably would lead to an acquittal). We do not believe that the latter position can survive Herrera v. Collins, in which Chief Justice Rehnquist stated for the Court, \"Claims of actual innocence based on newly discovered evidence have never been held to state a ground for federal habeas relief absent an independent constitutional violation occurring in the underlying state criminal proceeding. * * * Few rulings would be more disruptive of our federal system than to provide for federal habeas review of free-standing claims of actual innocence.” - U.S. at -, 113" } ]

[ { "docid": "8223855", "title": "", "text": "facts that (i) could not have been discovered previously through the exercise of due diligence, and that (ii), if proven, would “establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.” 28 U.S.C. § 2244(b)(2)(A)-(B) (2006). A “prima facie showing” of these requirements is “simply a sufficient showing of possible merit to warrant a fuller exploration by the district court.” Bennett v. United States, 119 F.3d 468, 469 (7th Cir.1997) (cited in In re Holladay, 331 F.3d 1169, 1173-74 (11th Cir.2003)); Reyes-Requena v. United States, 243 F.3d 893, 899 (5th Cir.2001). After painstaking review of this case, we conclude that Davis has completely failed to meet the procedural requirements of § 2244(b)(2), and, therefore, we are constrained to reject Davis’s application to file a second or successive habeas petition in the district court. We begin by observing that it is not clear at all under the case law whether the claim that Davis now raises — a freestanding actual innocence claim — is viable on federal habeas corpus review. In Herrera v. Collins, 506 U.S. 390, 417, 113 S.Ct. 853, 869, 122 L.Ed.2d 203 (1993), the Supreme Court assumed “for the sake of argument in deciding [the] case, that in a capital case a truly persuasive demonstration of ‘actual innocence’ made after trial would render the execution of a defendant unconstitu tional, and warrant federal habeas relief if there were no state avenue open to process such a claim.” We likewise have recognized the possibility of freestanding actual innocence claims, see Felker v. Turpin, 88 F.3d 1303, 1312 (11th Cir.1996), cert. granted, 517 U.S. 1182, 116 S.Ct. 1588, 134 L.Ed.2d 685 (1996) and cert. dismissed, 518 U.S. 651, 116 S.Ct. 2333, 135 L.Ed.2d 827 (1996), (“[Herrera] left open the difficult question of whether federal habeas courts may entertain convincing claims of actual innocence.”), but have also recognized that “[c]laims of actual innocence based on newly discovered evidence have never been held to state a ground for federal habeas relief absent an independent constitutional violation occurring in" }, { "docid": "83854", "title": "", "text": "“actual innocence” claim for relief to any state court as a stand-alone point of error or ground for habeas corpus relief. C. Procedural Default For the same reasons set forth in Section III.C. above, petitioner procedurally defaulted on his “actual innocence” claim by failing to present the state courts with that claim until he filed his third state habeas application, which the Texas Court of Criminal Appeals dismissed under Texas writ-abuse principles. However, respondent did not point out this obvious fact and this Court is precluded from noting sua sponte petitioner’s procedural default no matter how egregious and overt that default. See Prieto v. Quarterman, 456 F.3d at 518-19 (holding this Court abused its discretion in sua sponte dismissing as procedurally defaulted an unexhausted claim). Therefore, this Court must address the merits of this otherwise procedurally defaulted claim. D.No Merits Because no state court has ever addressed the merits of petitioner’s “actual innocence” claim, this Court’s review of same is de novo. See Rompilla v. Beard, 545 U.S. 374, 390, 125 S.Ct. 2456, 2467, 162 L.Ed.2d 360 (2005)(holding de novo review of the prejudice prong of Strickland was required where the state courts rested their rejection of an ineffective assistance claim on the deficient performance prong and never addressed the issue of prejudice); Wiggins v. Smith, 539 U.S. at 534, 123 S.Ct. at 2542 (holding the same); Wright v. Quarterman, 470 F.3d 581, 591 (5th Cir.2006) (holding claims which had not been presented to state court but nonetheless were not procedurally defaulted were entitled to de novo federal habeas review), cert. denied, — U.S. -, 127 S.Ct. 2996, 168 L.Ed.2d 707 (2007). In Herrera v. Collins, 506 U.S. 390, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993), the United States Supreme Court unequivocally declared that claims of “actual innocence” based on newly discovered evidence do not constitute an independent ground for granting federal habeas corpus relief. Herrera v. Collins, 506 U.S. at 400-01, 113 S.Ct. at 860-61. However, in Herrera, the Supreme Court also reaffirmed that a state prisoner who supplements his federal habeas claims with “a colorable showing of actual" }, { "docid": "14439595", "title": "", "text": "claim. On the ineffective assistance claim raising trial counsel’s failure to move to suppress petitioner’s statements, the magistrate judge similarly concluded that petitioner had failed to establish either the requisite deficiency of trial counsel’s performance or prejudice resulting therefrom. Slip op. at 25-27. Finally, the magistrate judge found no merit to petitioner’s claim that the state trial court should have granted petitioner’s motion for a new trial based upon newly discovered evidence showing actual innocence. Slip op. at 28-30. The evidence which petitioner relies upon is the testimony of Ronald Ratigen, who was Reimers’ jail cellmate following Reimers’ arrest. Ratigen testified at Billy Allen’s trial regarding an alleged statement made by Reimers while in jail, in which Reimers allegedly stated that he was in jail for “killing [Welling]” and that “it wasn’t supposed to happen that way.” Petitioner argues that this evidence reveals that he is actually innocent of first degree murder. Without considering whether petitioner had procedurally defaulted on his claim that the denial of a new trial violated his due process rights, the magistrate judge concluded that petitioner was not entitled to federal habeas review based upon his claim of actual innocence because petitioner had failed to show an independent constitutional violation occurring in the underlying state criminal proceeding. Slip op. at 28-30 (citing Herrera v. Collins, — U.S.-,-, 113 S.Ct. 853, 860, 122 L.Ed.2d 203 (1993) (Herrera) (“[c]laims of actual innocence based on newly discovered evidence have never been held to state a ground for federal habeas relief absent an independent constitutional violation occurring in the underlying state criminal proceeding”)). The magistrate judge thus recommended that the .petition be denied. The district court adopted the magistrate judge’s report and recommendation and denied the petition. This appeal followed. Upon careful review of the record in the present case,' we agree with the district court’s conclusion that petitioner has not established a violation of his constitutional rights or his Miranda rights; nor has he established grounds for review of his actual innocence claim. ‘ We note, however, with respect to petitioner’s claim of actual innocence based on newly discovered" }, { "docid": "1756335", "title": "", "text": "evidentiary hearings on his CPL §§ 330.30 and 440.10 motions in part because the motions were not supported by affidavits and were based on hearsay. (See 1/19/96 & 4/30/96 Decisions.) Its actions, therefore, were based on and in compliance with state statutory law. This procedure is not constitutionally deficient. See, e.g., Rodriguez v. Hoke, 89 Civ. 7618, 1990 WL 91739 at *2 (S.D.N.Y. June 25, 1990). In any event, Jones’ “newly discovered evidence” goes only to his guilt or innocence, not to the constitutionality of his conviction. The Supreme Court has explained that “newly discovered evidence relevant to the guilt of a state prisoner is not a ground for relief on federal habeas corpus.” Townsend v. Sain, 372 U.S. 293, 317, 83 S.Ct. 745, 759, 9 L.Ed.2d 770 (1963); accord, e.g., Herrera v. Collins, 506 U.S. 390, 400, 113 S.Ct. 853, 860, 122 L.Ed.2d 203 (1993) (“Claims of actual innocence based on newly discovered evidence have never been held to state a ground for federal habeas relief absent an independent constitutional violation occurring in the underlying state criminal proceeding.”); White v. Keane, 51 F.Supp.2d 495, 502 (S.D.N.Y.1999); McCool v. New York State, 29 F.Supp.2d 151, 160 (W.D.N.Y.1998) (“Newly discovered evidence relevant only to the guilt or innocence of the defendant is not sufficient to grant habeas relief.... For habeas relief to be available, the newly discovered evidence must bear on the constitutionality of the petitioner’s conviction.”); Rodriguez v. Hoke, 1990 WL 91739 at *2; Roberts v. LeFevre, 88 Civ. 4114, 1990 WL 6556 at *6 (S.D.N.Y. Jan.22, 1990); United States v. Coughlin, 657 F.Supp. 433, 436 (S.D.N.Y.1987); Mapp v. Clement, 451 F.Supp. 505, 511 (S.D.N.Y.1978) (“newly discovered evi dence only warrants habeas corpus relief where it bears on the ‘constitutionality of the applicant’s detention; the existence merely of newly discovered evidence relevant to the guilt of a state petitioner is not a ground for relief on federal habeas corpus’ ”), aff'd, mem., 591 F.2d 1330 (2d Cir.1978), cert. denied, 440 U.S. 948, 99 S.Ct. 1428, 59 L.Ed.2d 637 (1979). CONCLUSION For the reasons set forth above, Jones’ petition is denied." }, { "docid": "22211105", "title": "", "text": "effective, “ ‘[cjounsel need not appeal every possible question of law....’” Gustave v. United States, 627 F.2d 901, 906 (9th Cir.1980). As we discuss below, trial counsel’s failure to test the P.C.P. content of blood samples taken six days after the offense and four days after Turner’s arrest did not constitute ineffective assistance of counsel because the jury could have attributed P.C.P. content to Turner’s admitted post-offense use. Thus, there can be no debate that the district court was correct in concluding that appellate counsel was not ineffective for failing to raise this meritless claim or that this failure compounded trial counsel’s original error. A failure to raise untenable issues on appeal does not fall below the Strickland standard. Featherstone v. Estelle, 948 F.2d 1497, 1507(9th Cir.1991) (Where “trial counsel’s performance, although not error-free, did not fall below the Strickland standard[,] ... petitioner was not prejudiced by appellate counsel’s decision not to raise issues that had no merit.”); Gustave, 627 F.2d at 906 (“There is no requirement that an attorney appeal issues that are clearly untenable.”). 13. Newly Discovered Evidence (Claim Twenty). Turner also fails to satisfy the threshold requirements for consideration of a newly discovered evidence claim. “Claims of actual innocence based on newly discovered evidence have never been held to state a ground for federal habeas relief absent an independent constitutional violation occurring in the underlying state criminal proceeding.” Herrera v. Collins, 506 U.S. 390, 400, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993) (“[Federal habeas courts sit to ensure 2458 that individuals are not imprisoned in violation of the Constitution — not to correct errors of fact.”). The one exception is when a defendant introduces affirmative proof of actual innocence based on newly discovered evidence. As we stated in Carriger v. Stewart, 132 F.3d 463(9th Cir.1997) (en banc): We conclude that the Herrera majority’s statement that the threshold for a freestanding claim of innocence would have to be ‘extraordinarily high’ contemplates a stronger showing than insufficiency of the evidence to convict. We therefore decline to adopt the modified Jackson standard. We believe that the required showing would have" }, { "docid": "15272952", "title": "", "text": "he saw Basten and Johnson carrying something toward the vat applies directly to Basten and Johnson. The defendants were in this conspiracy together. Trying them together allowed the State to present a chronology of what happened. Had each of the defendants been tried separately (and there is no reason to believe Basten is more entitled to a separate trial than any of the others), the story would have had to be presented six times. This case is a fairly good illustration of why joint trials are preferred. Finally, Basten argues that his due process rights were violated because he was denied a new trial on the basis of newly discovered evidence. That evidence is Kellner’s partial recantation of his trial testimony and testimony from various inmates with whom Wiener was incarcerated, which allegedly cast doubt on his trial testimony. On this claim, Basten must shoulder a' heavy burden. Again he must show that the decision denying him a new trial was “contrary to” or an “unreasonable application of’ Supreme Court precedent. And the Court has expressly held that “the existence merely of newly discovered evidence relevant to the guilt of a state prisoner is not a ground for relief on federal habeas corpus.” Townsend v. Sain, 372 U.S. 293, 317, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963). For claims based on newly discovered evidence to state a ground for federal habeas relief, they must relate to a constitutional violation independent of any claim of innocence. Herrera v. Collins, 506 U.S. 390, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993). We have said that the “refusal to grant a new trial on the basis of newly discovered evidence is not actionable in habeas corpus.” Guinan v. United States, 6 F.3d 468, 470 (7th Cir.1993). And further, we have said that [w]here the “newly discovered evidence” consists of witness recantations of trial testimony or confessions by others of the crime, most courts decline to consider it in the absence of any showing that the prosecution knowingly proffered false testimony or failed to disclose exculpatory evidence, or that petitioner’s counsel was ineffective. Coogan v." }, { "docid": "7866762", "title": "", "text": "of the district court, that no credible testimony existed to establish that the government directed Plangman, was not clearly erroneous. On the facts of this case, Plangman was not a government agent. Creel failed to meet the two-pronged test formulated by the district court. Plangman did not receive, nor was she promised, any benefits in exchange for eliciting information from Creel. Plangman acted at her own discretion in her dealings with Creel. In the absence of a quid pro quo between Plangman and Cuellar, and in the absence of instruction or control by the State, we hold that Plangman was not a government agent. Even if Plangman had “deliberately elicited” incriminating information from Creel, his right to counsel was not violated because she was not an agent of the state. See Massiah, 377 U.S. at 206, 84 S.Ct. at 1203. V Creel alleges that the district court should have extended the federal evidentiary hearing to include his claim of actual innocence based on newly discovered evidence. Irrespective of whether a case is capital or noncapital, we have reaffirmed that newly discovered evidence of innocence, “absent an independent constitutional violation occurring in the underlying state criminal proceeding,” is not a ground for habeas relief. Jacobs v. Scott, 31 F.3d 1319, 1324 (5th Cir.1994) (quoting Herrera v. Collins, 506 U.S. 390, 400, 113 S.Ct. 853, 860, 122 L.Ed.2d 203 (1993)). The district court correctly denied Creel an evidentiary hearing on this issue because Jacobs forecloses Creel’s argument. VI Creel argues lastly that the district court erred in finding that his trial lawyer Charles Conaway was not ineffective. In order to prove ineffective assistance of counsel, Creel must show that (1) Conaway’s representation “fell below an objective standard of reasonableness” and (2) that the performance resulted in actual prejudice. Strickland v. Washington, 466 U.S. 668, 689, 692, 104 S.Ct. 2052, 2055, 2067, 80 L.Ed.2d 674 (1984). Both prongs of the Strickland test present a mixed question of law and fact. We review independently whether counsel’s representation passes constitutional muster. We apply the § 2254(d) presumption of correctness to factual findings of the state" }, { "docid": "4104942", "title": "", "text": "Because such evidence is obviously unavailable in the vast majority of cases, claims of actual innocence are rarely successful.” Id. at 324, 115 S.Ct. 851. A showing of actual innocence serves merely as a gateway to the airing of the petitioner’s defaulted claim and is not itself cognizable in habeas as a freestanding claim. See Herrera v. Collins, 506 U.S. 390, 400, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993) (“[C]laims of actual innocence based on newly discovered evidence have never been held to state a ground for federal habeas relief absent an independent constitutional violation occurring in the underlying state criminal proceeding.”). A habeas court is, in short, concerned “ ‘not [with] the petitioners’ innocence or guilt but solely [with] the question whether their constitutional rights have been preserved.’ ” Id. (quoting Moore v. Dempsey, 261 U.S. 86, 87-88, 43 S.Ct. 265, 67 L.Ed. 543 (1923)); cf. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (habeas court may review an independent constitutional claim that the evidence adduced at trial was insufficient to convict a criminal defendant beyond a reasonable doubt); Thompson v. Louisville, 362 U.S. 199, 80 S.Ct. 624, 4 L.Ed.2d 654 (1960) (reversing conviction of “Shuffling Sam” on direct review from conviction in Louisville’s police court where there was no evidence that defendant violated city ordinances). E. Ineffective Assistance of Counsel 1. In General a. Ineffective Assistance of Trial Counsel The Counsel Clause of the Sixth Amendment provides that a criminal defendant “shall enjoy the right ... to have the Assistance of Counsel for his defence.” U.S. Const. amend. VI. This right to counsel is “the right to effective assistance of counsel.” McMann v. Richardson, 397 U.S. 759, 771 n. 14, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970) (emphasis added). The Supreme Court has explained that in giving meaning to this requirement we must be guided by its purpose—“to ensure a fair trial”—and that therefore the “benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on" }, { "docid": "21706173", "title": "", "text": "any personal knowledge regarding David Cook’s murder. The Texas Court of Criminal Appeals rejected this claim on the merits when it adopted the state habeas trial court’s findings and conclusions. C. AEDPA Analysis In Herrera v. Collins, 506 U.S. 390, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993), the United States Supreme Court declared that claims of “actual innocence” based on newly discovered evidence do not constitute an independent ground for granting federal habeas corpus relief. Herrera v. Collins, 506 U.S. at 400-01, 113 S.Ct. 853. However, in Herrera, the Supreme Court also reaffirmed that a state prisoner who supplements his federal habeas claims with “a colorable showing of actual innocence” can thereby circumvent procedural barriers to obtaining federal habeas review on the merits for his constitutional claims. Herrera v. Collins, 506 U.S. at 404, 113 S.Ct. 853. The Supreme Court’s holding in Herrera precludes petitioner’s argument suggesting his belated attacks on the quality of the police investigation into David Cook’s murder independently warrant federal habeas corpus relief. Under Herrera, even new evidence establishing a state prisoner’s actual innocence beyond any doubt does not independently authorize federal habeas corpus relief, Herrera v. Collins, 506 U.S. at 400-02, 113 S.Ct. 853; Parr v. Quarterman, 472 F.3d 245, 252 (5th Cir.2006), cert. denied, — U.S. -, 127 S.Ct. 2974, 168 L.Ed.2d 707 (2007); Foster v. Quarterman, 466 F.3d 359, 367 (5th Cir.2006), cert. denied, — U.S. -, 127 S.Ct. 2099, 167 L.Ed.2d 817 (2007); Dowthitt v. Johnson, 230 F.3d 733, 741 (5th Cir.2000), cert. denied, 532 U.S. 915, 121 S.Ct. 1250, 149 L.Ed.2d 156 (2001). However, the foreclosure of petitioner’s contention does not end this Court’s examination of petitioner’s actual innocence claim. The Supreme Court has held that a showing of “actual innocence” opens the door to federal habeas review of procedurally defaulted claims and claims that would otherwise be barred by abuse-of-the-writ principles. Schlup v. Delo, 513 U.S. 298, 326-27, 115 S.Ct. 851, 130 L.Ed.2d 808, (1995); Herrera v. Collins, 506 U.S. at 404, 113 S.Ct. 853; Parr v. Quarterman, 472 F.3d at 252. In Schlup v. Delo, the Supreme Court explained" }, { "docid": "17063937", "title": "", "text": "now address each of Lucas’s contentions to determine whether the district court erred when it refused to award Lucas habeas relief. Ill A Lucas contends that evidence, newly discovered and accumulated after his conviction, conclusively establishes that he is innocent of the crime for which he was sentenced to death. At the outset, we should observe that much of the evidence alleged by Lucas to be newly discovered is neither new nor newly discovered, but in its essence and character, was presented, or available to present, to the trial jury. See United States v. Freeman, 77 F.3d 812, 816-17 (5th Cir.1996) (setting forth the “Berry” rule for other relief based on newly discovered evidence) (citing Berry v. Georgia, 10 Ga. 511 (1851)). Lucas’s trial jury had ample opportunity to consider whether such evidence was convincing of actual innocence and obviously determined that it was not. In any event, it has long been a habeas rule that “the existence merely of newly discovered evidence relevant to the guilt of a state prisoner is not a ground for relief on federal habeas corpus.” Herrera v. Collins, 954 F.2d 1029, 1034 (5th Cir.1992)(quoting Townsend v. Sain, 372 U.S. 293, 317, 83 S.Ct. 745, 759, 9 L.Ed.2d 770 (1963)), aff'd, 506 U.S. 390, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993). Contrary to what Lucas argues, the Supreme Court’s Herrera opinion does not alter this entrenched habeas principle. Claims of actual innocence based on newly discovered evidence have neve£ been held to state a ground for federal habeas relief absent an independent constitutional violation occurring in the underlying state criminal proceeding.... This rule is grounded in the. principle that federal habeas courts sit to ensure that individuals are not imprisoned in violation .of the Constitution— not to correct errors of fact. Herrera, 506 U.S. at 400, 113 S.Ct. at 860. Throughout the opinion, the Court returns to its original premise that “a claim of ‘actual innocence’ is not itself a constitutional claim, but instead a gateway through which a habe-as petitioner must pass to have his otherwise barred constitutional claim considered on the merits.” Id." }, { "docid": "514558", "title": "", "text": "in light of the new evidence of Kellner’s recantation. “As a general rule, newly discovered evidence that bears only on the question of guilt or innocence is not reviewable by a federal court on a motion for habeas corpus relief.” Coogan v. McCaughtry, 958 F.2d 793, 801 (7th Cir.1992). Nonetheless, we have held that “in some situations newly discovered evidence is so compelling that it would be a violation of the fundamental fairness embodied in the Due Process Clause not to afford a defendant a new trial in which the evidence could be considered.” Id. (internal quotation marks and citations omitted). We have noted that [w]here the “newly discovered evidence” consists of witness recantations of trial testimony or confessions by others of the crime, most courts decline to consider it in the absence of any showing that the prosecution knowingly proffered false testimony or failed to disclose exculpatory evidence, or that petitioner’s counsel was ineffective. Id. In the words of the Supreme Court, [c]laims of actual innocence based on newly discovered evidence have never been held to state a ground for federal relief absent an independent constitutional violation occurring in the underlying state criminal proceeding.... This rule is grounded in the principle that federal habeas courts sit to ensure that individuals are not imprisoned in violation of the Constitution — not to correct errors of fact. Herrera v. Collins, 506 U.S. 390, 400, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993). Under AEDPA, as noted above, Mr. Moore must show that the 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). Mr. Moore has not even attempted to meet this standard. His primary contentions to the district court and to this court are that the Wisconsin appellate court erred in finding that the recanted testimony did not create a reasonable probability of a different outcome at trial, see Petitioner’s Br. at 56-59, and that the recantation would have had an enormous impact on the trial evidence against" }, { "docid": "22976817", "title": "", "text": "to factual determinations made by the state courts. See 28 U.S.C. § 2254(e)(1). While we presume such determinations to be correct, the petitioner can rebut this presumption by clear and convincing evidence. See id. Absent an unreasonable determination in light of the record, we will give deference to the state court’s fact findings. See id. § 2254(d)(2). Dowthitt seeks a COA from this court on the following issues : (1) actual innocence, (2) ineffective assistance of counsel, (3) admission of DNA evidence without a factual predicate, (4) State misconduct, (5) failure to instruct the jury on lesser-included offenses, and (6) the district court’s limited evidentiary hearing. A. Actual Innocence “Claims of actual innocence based on newly discovered evidence have never been held to state a ground for federal habeas relief absent an independent constitutional violation occurring in the underlying state criminal proceeding.” Herrera v. Collins, 506 U.S. 390, 400, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993). Rather, a claim of actual innocence is “a gateway through which a habeas petitioner must pass to have his otherwise barred constitutional claim considered on the merits.” Id. at 404, 113 S.Ct. 853. In order for Dowthitt to obtain relief on this claim, “the evidence must establish substantial doubt about his guilt to justify the conclusion that his execution would be a miscarriage of justice unless his conviction was the product of a fair trial.” Schlup v. Delo, 513 U.S. 298, 316, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995) (emphasis added). The Herrera Court did assume, arguen-do, “that in a capital case a truly persuasive demonstration of ‘actual innocence’ made after trial would ... warrant habeas relief if there were no state avenue open to process such a claim.” 506 U.S. at 417, 113 S.Ct. 853. However, this circuit has rejected this theory. See Graham v. Johnson, 168 F.3d 762, 788 (5th Cir.1999), cert, denied, -U.S.-, 120 S.Ct. 1830, 146 L.Ed.2d 774 (2000). Thus, Dowthitt must first raise substantial doubt about his guilt, which would then cause us to examine any barred constitutional claims. Dowthitt’s main argument in support of his innocence is that" }, { "docid": "15272953", "title": "", "text": "expressly held that “the existence merely of newly discovered evidence relevant to the guilt of a state prisoner is not a ground for relief on federal habeas corpus.” Townsend v. Sain, 372 U.S. 293, 317, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963). For claims based on newly discovered evidence to state a ground for federal habeas relief, they must relate to a constitutional violation independent of any claim of innocence. Herrera v. Collins, 506 U.S. 390, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993). We have said that the “refusal to grant a new trial on the basis of newly discovered evidence is not actionable in habeas corpus.” Guinan v. United States, 6 F.3d 468, 470 (7th Cir.1993). And further, we have said that [w]here the “newly discovered evidence” consists of witness recantations of trial testimony or confessions by others of the crime, most courts decline to consider it in the absence of any showing that the prosecution knowingly proffered false testimony or failed to disclose exculpatory evidence, or that petitioner’s counsel was ineffective. Coogan v. McCaughtry, 958 F.2d 793, 801 (7th Cir.1992). Recently we decided that Kellner’s “recantation” did not require a new trial for Reynold Moore. We again come to that conclusion. In his trial testimony, Kellner said that Kutska named all six defendants as involved in the confrontation with Monfils. At the postconviction hearing, he testified that Kutska said all were present immediately before the confrontation but that Kutska named only Hirn and Moore specifically at the confrontation. Kutska did this by drawing a diagram and labeling where people were standing. While the diagram showed several people, only Hirn and Moore were named. The testimony, even if we could consider it as a basis for habeas corpus, does not clear Basten. The second basis for Basten’s claim is that there is new evidence that Wiener’s trial testimony was false and that Wiener was actually the killer. As we said above, after the Monfils’ murder, Wiener went to prison for reckless homicide in the killing of his brother. At the postconviction hearing in the present case there was testimony" }, { "docid": "21031857", "title": "", "text": "for which he was convicted, see, e.g., Schlup v. Delo, 513 U.S. 298, 326-27, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995), or of the sentencing factors that rendered him eligible for the death penalty, see, e.g., Sawyer v. Whitley, 505 U.S. 333, 350, 112 S.Ct. 2514, 120 L.Ed.2d 269 (1992). However, as the district court recognized, the Supreme Court has strongly suggested that claims of actual innocence standing alone do not serve as an independent basis for habeas relief: “Claims of actual innocence based on newly discovered evidence have never been held to state a ground for federal habeas relief absent an independent constitutional violation occurring in the underlying state criminal proceeding.” Herrera v. Collins, 506 U.S. 390, 400, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993). Citing Herrera, in Rouse v. Lee, 339 F.3d 238, 255 (4th Cir.2003), this court noted that “claims of actual innocence are not grounds for habeas relief even in a capital case.” While acknowledging authority to the contrary, Buckner nevertheless contends that the point is subject to debate. According to Buckner, Herrera does not completely foreclose free-standing claims of actual innocence. We need not address the issue here, however. As the Supreme Court has suggested, and Buckner recognizes, if free-standing actual innocence claims were cognizable on federal habeas review, “the threshold showing for such an assumed right would necessarily be extraordinarily high.” Herrera, 506 U.S. at 417, 113 S.Ct. 853. On the facts before us, Buckner has failed to meet even the presumptively less stringent standard of proof by which gateway innocence claims are measured. B. Buckner’s new evidence does not establish his actual innocence of first-degree murder. Petitioners who wish to use a claim of actual innocence as a gateway to raising an otherwise defaulted constitutional claim must demonstrate by a preponderance of the evidence that a reason able juror could not have convicted the petitioner in light of the new evidence. See Schlup, 513 U.S. at 327, 115 S.Ct. 851. The jury found Buckner guilty of first-degree murder under three separate theories, including felony murder. As the district court recognized, Buckner’s “evidence speaks" }, { "docid": "1756334", "title": "", "text": "842 F.2d 1288 (2d Cir.), cert. denied, 487 U.S. 1240, 108 S.Ct. 2913, 101 L.Ed.2d 944 (1988). This Court reiterates its agreement with the majority view. See Franza v. Stinson, 58 F.Supp.2d at 152. Thus, Jones’ assertion that the failure to hold a hearing on his CPL §§ 440.10 and 330.30 newly discovered evidence motions violated due process is not cognizable on federal habeas review. B. Even if the Court Were to Address Jones’ Claim on the Merits, He is Not Entitled to Habeas Relief Even if the Court were to address Jones’ claim on the merits, the Court would not find that the state court’s failure to hold a hearing before denying Jones’ CPL §§ 440.10 and 330.30 motions violated his constitutional rights. In order to warrant an evidentiary hearing pursuant to CPL §§ 330.30 and 440.10, a defendant’s moving papers must be supported by “sworn allegations of fact.” See CPL § 330.40(2)(a) & (e)-(f) (governing CPL § 330.30(3) motions); CPL § 440.30(4)(b) (governing CPL § 440.10 motions). Here, the trial court denied Jones evidentiary hearings on his CPL §§ 330.30 and 440.10 motions in part because the motions were not supported by affidavits and were based on hearsay. (See 1/19/96 & 4/30/96 Decisions.) Its actions, therefore, were based on and in compliance with state statutory law. This procedure is not constitutionally deficient. See, e.g., Rodriguez v. Hoke, 89 Civ. 7618, 1990 WL 91739 at *2 (S.D.N.Y. June 25, 1990). In any event, Jones’ “newly discovered evidence” goes only to his guilt or innocence, not to the constitutionality of his conviction. The Supreme Court has explained that “newly discovered evidence relevant to the guilt of a state prisoner is not a ground for relief on federal habeas corpus.” Townsend v. Sain, 372 U.S. 293, 317, 83 S.Ct. 745, 759, 9 L.Ed.2d 770 (1963); accord, e.g., Herrera v. Collins, 506 U.S. 390, 400, 113 S.Ct. 853, 860, 122 L.Ed.2d 203 (1993) (“Claims of actual innocence based on newly discovered evidence have never been held to state a ground for federal habeas relief absent an independent constitutional violation occurring in the" }, { "docid": "83855", "title": "", "text": "L.Ed.2d 360 (2005)(holding de novo review of the prejudice prong of Strickland was required where the state courts rested their rejection of an ineffective assistance claim on the deficient performance prong and never addressed the issue of prejudice); Wiggins v. Smith, 539 U.S. at 534, 123 S.Ct. at 2542 (holding the same); Wright v. Quarterman, 470 F.3d 581, 591 (5th Cir.2006) (holding claims which had not been presented to state court but nonetheless were not procedurally defaulted were entitled to de novo federal habeas review), cert. denied, — U.S. -, 127 S.Ct. 2996, 168 L.Ed.2d 707 (2007). In Herrera v. Collins, 506 U.S. 390, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993), the United States Supreme Court unequivocally declared that claims of “actual innocence” based on newly discovered evidence do not constitute an independent ground for granting federal habeas corpus relief. Herrera v. Collins, 506 U.S. at 400-01, 113 S.Ct. at 860-61. However, in Herrera, the Supreme Court also reaffirmed that a state prisoner who supplements his federal habeas claims with “a colorable showing of actual innocence” can thereby circumvent procedural barriers to obtaining federal habeas review on the merits for his constitutional claims. Herrera v. Collins, 506 U.S. at 404, 113 S.Ct. at 862. The Supreme Court’s holding in Herrera precludes petitioner’s argument that the new evidence he presented for the first time during his third state habeas corpus proceeding, i.e., Mr. Huel’s hearsay-within-hearsay affidavit, independently warrants federal habeas corpus relief. Under Herrera, even new evidence establishing a state prisoner’s actual innocence beyond any doubt does not independently authorize federal habeas corpus relief. Herrera v. Collins, 506 U.S. at 400-02, 113 S.Ct. at 860-61; Parr v. Quarterman, 472 F.3d 245, 252 (5th Cir.2006), cert. denied, — U.S. - — , 127 S.Ct. 2974, 168 L.Ed.2d 707 (2007); Foster v. Quarterman, 466 F.3d 359, 367 (5th Cir.2006), cert. denied, — U.S.-, 127 S.Ct. 2099, 167 L.Ed.2d 817 (2007); Dowthitt v. Johnson, 230 F.3d 733, 741 (5th Cir.2000), cert. denied, 532 U.S. 915, 121 S.Ct. 1250, 149 L.Ed.2d 156 (2001). However, the foreclosure of petitioner’s frontal assault upon his conviction does not" }, { "docid": "16391827", "title": "", "text": "petitioner cannot claim constitutionally ineffective assistance of counsel in such proceedings. Coleman v. Thompson, 501 U.S. 722, 752, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991); Abdur’Rahman v. Bell, 999 F.Supp. 1073, 1084 (M.D.Tenn.1998). Where there is no constitutional right to counsel, there can be no deprivation of effective assistance. Waimuright v. Toma,- 455 U.S. 586, 587-588, 102 S.Ct. 1300, 71 L.Ed.2d 475 (1982). Because petitioner had no constitutional right to the assistance of counsel in his post-conviction proceedings, his claim that his attorney was ineffective in represent ing him in his post-conviction motion and appeal in Michigan does not entitle him to relief from this Court. Petitioner’s third claim must fail. IV. DID THE STATE COURTS ERR IN DENYING PETITIONER A NEW TRIAL WHERE PETITIONER PRESENTED NEWLY DISCOVERED EVIDENCE IN THE FORM OF NORMAN WAYNE ROBINSON’S AFFIDAVIT, IN WHICH ROBINSON RECANTED HIS TRIAL TESTIMONY? Petitioner next contends that the state trial court erred in denying his motion for a new trial based upon newly discovered evidence in the form of Norman Robinson’s affidavit, in which Robinson recanted his earlier testimony against petitioner. Petitioner claims that this evidence supports his claim of innocence. A claim of actual innocence based upon newly discovered evidence is not grounds for federal habeas relief. Federal habeas courts sit to ensure that individuals are not imprisoned in violation of the constitution, not to correct errors of fact. Herrera v. Collins, 506 U.S. 390, 400, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993). A claim that a habeas petitioner is entitled to relief based upon the failure of a state trial judge to grant him a trial on the basis of newly discovered evidence is not cognizable in a habeas proceeding. J.C. Dickey v. Dutton, 595 F.Supp. 1, 2 (M.D.Tenn. 1983). The refusal of a state trial judge to credit a co-defendant’s repudiation of testimony implicating a habeas petitioner did not raise any constitutional errors cognizable in a habeas corpus proceeding. Collins v. Brierley, 336 F.Supp. 1024, 1025 (W-D.Pa.1971); rev on other grds 492 F.2d 735 (3rd Cir.1974); cert. den. 419 U.S. 877, 95 S.Ct. 140, 42 L.Ed.2d" }, { "docid": "6533267", "title": "", "text": "petition. The magistrate judge’s report and recommendation analyzes Kavanagh’s claims in exhaustive factual detail. Such detail is unnecessary for our review, and we will discuss the pertinent facts as they are relevant to our analysis. ANALYSIS Federal courts are authorized to grant a writ of habeas corpus when a person is held in custody under a state court judgment in violation of the United States Constitution. 28 U.S.C. § 2254. In reviewing the state court proceedings, we presume that the factual findings of the state court are correct if those findings are made after a hearing on the merits and are fairly supported by the record. Armstrong v. Young, 34 F.3d 421, 426 (7th Cir.1994), cert. denied, — U.S. -, 115 S.Ct. 1369, 131 L.Ed.2d 224 (1995). We review the district court’s findings of fact under a clearly erroneous standard. Griffin v. Camp, 40 F.3d 170, 172 (7th Cir.1994). We review the merits of the district court’s legal conclusions de novo. Rodriguez v. Peters, 63 F.3d 546, 554 (7th Cir.1995). In particular, we review de novo the district court’s legal conclusion that Kavanagh’s counsel rendered effective assistance. U.S. ex reí. Partee v. Lane, 926 F.2d 694, 700 (7th Cir.1991), cert. denied, 502 U.S. 1116, 112 S.Ct. 1230, 117 L.Ed.2d 464 (1992). A. Ineffective Assistance of Counsel To succeed on his claim for ineffective assistance of counsel, Kavanagh must demonstrate that his counsel’s performance was deficient and that the deficient performance prejudiced Kavanagh. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). Counsel’s performance is deficient if it falls below an “objective standard of reasonableness” under “prevailing professional norms.” Id. at 688, 104 S.Ct. at 2065. In order for Kavanagh to establish prejudice, he must show “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694, 104 S.Ct. at 2068. In sum, counsel’s errors must result in a proceeding that is “fundamentally unfair or unreliable.” Lockhart v. Fretwell, 506 U.S. 364, 368, 113 S.Ct. 838, 842, 122 L.Ed.2d 180 (1993). We examine the performance" }, { "docid": "23143555", "title": "", "text": "an Assistant Federal Public Defender filed in the district court a memorandum of law in support of the petition for writ of habeas corpus. That memorandum conceded, on behalf of Jordan, that a freestanding claim of actual innocence did not provide a basis for federal habeas relief. This is that concession: A bare claim of actual innocence based upon newly discovered evidence, without “an independent constitutional violation” does not establish a basis for federal habeas relief. Herrera v. Collins, 506 U.S. 390, 400, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993). While “the federal court must grant an evidentiary hearing” in the presence of newly discovered evidence, the “evidence must bear upon the constitutionality of the applicant’s detention.” Id., quoting Townsend v. Sain, 372 U.S. 293, 317, 83 S.Ct. 745, 9 L.Ed.2d 770. “[T]he existence merely of newly discovered evidence relevant to the guilt of a state prisoner is not a ground for relief on federal habeas corpus.” Id. (Petr.’s Mem. of Law in Supp. of Pet. for Writ of Habeas Corpus 2, Feb. 23, 2004.) Immediately after making that concession, the memorandum argued that Jordan’s petition did assert a constitutional claim, which it identified as the allegations that his confession had been coerced and, as a result, its use against him at trial had violated the Fifth and Fourteenth Amendments to the Constitution. This is how the memorandum explained that theory: In Mr. Jordan’s case, the petition states the grounds for habeas relief as being “newly discovered evidence supporting claim of actual innocence.” At first blush, looking simply at the title of the claim, one might prematurely determine that Herrera and Townsend preclude relief. However, upon review of the facts supporting the claim, Mr. Jordan identifies “an independent constitutional violation.” Mr. Jordan claims that his confession was [injvoluntary. Within a declaration attached to the petition, Mr. Jordan states the reason for making the statement was the result of the detectives telling him that his “mother could be charged for criminal negligence since he was a minor.” Exhibit C of the Petition. Mr. Jordan further states in the declaration that he" }, { "docid": "8223856", "title": "", "text": "— is viable on federal habeas corpus review. In Herrera v. Collins, 506 U.S. 390, 417, 113 S.Ct. 853, 869, 122 L.Ed.2d 203 (1993), the Supreme Court assumed “for the sake of argument in deciding [the] case, that in a capital case a truly persuasive demonstration of ‘actual innocence’ made after trial would render the execution of a defendant unconstitu tional, and warrant federal habeas relief if there were no state avenue open to process such a claim.” We likewise have recognized the possibility of freestanding actual innocence claims, see Felker v. Turpin, 88 F.3d 1303, 1312 (11th Cir.1996), cert. granted, 517 U.S. 1182, 116 S.Ct. 1588, 134 L.Ed.2d 685 (1996) and cert. dismissed, 518 U.S. 651, 116 S.Ct. 2333, 135 L.Ed.2d 827 (1996), (“[Herrera] left open the difficult question of whether federal habeas courts may entertain convincing claims of actual innocence.”), but have also recognized that “[c]laims of actual innocence based on newly discovered evidence have never been held to state a ground for federal habeas relief absent an independent constitutional violation occurring in the underlying state criminal proceeding;” Brownlee v. Haley, 306 F.3d 1043, 1065 (11th Cir.2002) (quoting Herrera, 506 U.S. at 400, 113 S.Ct. at 860). In any event, for purposes of the instant application, we need not address whether a petitioner can bring a freestanding actual innocence claim as described in Herrera v. Collins in his first federal habeas petition. That question is not before us because Davis did not bring an actual innocence claim pursuant to Herrera in his first federal habeas petition. Rather, the only question we face is whether Davis can bring such a claim in a second or successive petition. Because it is undisputed that Davis’s current application does not rely on a new rule of constitutional law as provided for under § 2244(b)(2)(A), Davis must satisfy the two procedural requirements embodied in § 2244(b)(2)(B) in order to bring a Herrera claim now. He has failed to meet either requirement. Congress enacted § 2244(b)(2)(B), as it now stands, as part of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). Plainly" } ]

[ { "docid": "16567924", "title": "", "text": "must subjectively believe her working conditions have been altered”). “[I]f the victim does not subjectively perceive the environment to be abusive, the conduct has not actually altered the conditions of the victim’s employment, and there is no Title VII violation.” Harris, 510 U.S. at 21-22, 114 S.Ct. 367. We first consider Cottrill’s hostile work environment claim. Cottrill was not aware of the peeping, stating in her deposition that she did not know that Adkins was viewing her. Because she did not subjectively perceive the peeping, Cottrill may not rely on the peeping to establish that her work environment was hostile. A Title VII plaintiff “may only rely on evidence relating to harassment of which she was aware during the time that she was allegedly subject to a hostile work environment.” Hirase-Doi v. U.S. West Communications, Inc., 61 F.3d 777, 782 (10th Cir.1995). Where the plaintiff and her female coworkers were harassed by a male coworker, the Tenth Circuit stated in Hirase-Doi that the plaintiff “could not subjectively perceive [her coworker’s] behavior towards others as creating a hostile work environment unless she knew about that behavior.” Id.; cf. Pryor v. Seyfarth, Shaw, Fairweather & Geraldson, 212 F.3d 976, 978 (7th Cir.2000) (noting that supervisor’s alleged leering at employee without employee knowing it was irrelevant to employee’s Title VII sexual harassment claim); Burnett v. Tyco Corp., 203 F.3d 980, 981 (6th Cir.2000) (holding that the allegations of plaintiffs co-employees of sexual harassment by manager were irrelevant to plaintiffs hostile work environment claim absent evidence that plaintiff was contemporaneously aware of the alleged harassment); Bradshaw v. Golden Rd. Motor Inn, 885 F.Supp. 1370, 1381 (D.Nev.1995) (holding that supervisor’s routine vulgar references to plaintiff could not support a hostile work environment claim because plaintiff was unaware of the comments and “to show that he or she perceived the ‘environment’ as ‘hostile,’ [a Title VII plaintiff] must at least have been aware of those comments”). In addition, this case is factually distinguishable from Liberti v. Walt Disney World Co., 912 F.Supp. 1494 (M.D.Fla. 1995), cited by the appellants, where the district court denied Disney’s motion" } ]

[ { "docid": "11527275", "title": "", "text": "VII, it must be sufficiently pervasive so as to alter the conditions of employment and create an abusive working environment.”) See also Edwards, 49 F.3d at 1521 (“[T]he racial slurs allegedly spoken by co-workers had to be so ‘commonplace, overt and denigrating that they created an atmosphere charged with racial hostility.’ ”) (quoting E.E.O.C. v. Beverage Canners, Inc., 897 F.2d 1067, 1068 (11th Cir.1990)); Walker v. Ford Motor Co., 684 F.2d 1355, 1359 (11th Cir.1982). In Edwards, the court stated that “[i]n deciding whether a hostile work environment was created factors to consider include the frequency of the discriminatory conduct, whether the conduct is threatening or humiliating, and whether the conduct unreasonably interferes with the plaintiffs performance at work.” 49 F.3d at 1521-22. Plaintiff simply has not presented evidence that the racially derogatory comments allegedly made by Herren were sufficiently severe or pervasive to create a hostile work environment. In fact, as she and Herren did not even work together and only occasionally passed each other on shift changes, she has not demonstrated how Herren’s behavior even affected her work environment. The mere complaint by a white woman that she “heard through the grapevine” that a co-worker was making negative remarks against blacks does not .constitute opposition to an unlawful employment practice. Accordingly, the Court concludes that plaintiffs belief that she was complaining of race discrimination was not held in objective good faith and could not form the basis of her retaliation claim. Regarding the “gay comments,” as discussed in the Report and Recommendation, sexual orientation is not a classification protected under Title VII. See Hamner v. St. Vincent Hosp. and Health Care Ctr., Inc., 224 F.3d 701, 705 (7th Cir.2000). Accordingly, although plaintiff may have found Her-ren’s behavior offensive, because it is not illegal under Title VII to discriminate against homosexuals, these comments cannot provide the basis of a discrimination claim. In addition, because it is clear under the law that Herren’s alleged behavior, if true, was hot illegal, these allegations provide no support for plaintiffs claim that she had a good faith belief that she was opposing an" }, { "docid": "11527360", "title": "", "text": "all of the behavior was targeted at her. See Edwards v. Wallace Cmty. Coll., 49 F.3d 1517, 1522 (11th Cir.1995). In addition, the Court also assumes that it may consider conduct that plaintiff did not witness first-hand, but that was later reported to her by others. See id.; see also Schwapp v. Town of Avon, 118 F.3d 106, 111 (2d Cir.1997) (\"The mere fact that [the employee] was not present when a racially derogatory comment was made will not render that comment irrelevant to his hostile work environment claim.”). Nonetheless, it is well-established that slurs and insults heard second-hand do not carry the same weight as those made directly to the plaintiff. See, e.g., Black v. Zaring Homes, Inc., 104 F.3d 822, 826 (6th Cir.1997) (holding that fact that most comments were not made in front of plaintiff contributed to con-elusion that they were \"merely offensive\" rather than objectively hostile); Mitchell v. Carrier Corp., 954 F.Supp. 1568, 1577 (M.D.Ga.1995) (holding that severity of remarks was greatly diminished by fact plaintiff learned of them second-hand). Also important is the fact that plaintiff has to show that she knew of the behavior at the time she complained, as one cannot oppose behavior of which one is not aware. See Clover, 176 F.3d at 1352 (\"[W]hat counts is only the conduct that person opposed, which cannot be more than what she was aware of.”). Accordingly, in regard to her retaliation claim, the Court discusses only that allegedly discriminatory conduct of which plaintiff claimed to have been aware at the time she complained in November. While other conduct discovered later may have been relevant to plaintiffs underlying harassment claim, it is not relevant to the retaliation claim. Nonetheless, the Court has reviewed all of the evidence and concludes that even if plaintiff claimed to have been aware of all of the alleged acts of harassment that came to light during discovery, it would not change the outcome of the Court's decision regarding the retaliation claim. . The Court notes the irony in plaintiff's allegation that she was opposing a hostile racial environment created by" }, { "docid": "11527308", "title": "", "text": "be with the railroad much longer; (9) got into a disagreement with co-worker Gary Joiner about Herren’s habit of smoking in the office with the windows open that nearly escalated into violence; (10) made a limp-wristed gesture to mock Joiner’s homosexuality during a conversation with supervisor Taylor over the open-window controversy; (11) called Plaintiff, outside her presence, a “lying bitch” and said he hated her during an August 1997 tirade in the office that was overheard by coworker Scott Pickard; (12) gave the impression of a violent propensity due to his constant talk about guns and his Marine Corps background, and his ritual of practicing martial-arts moves in the office; (13) made insulting remarks about obesé women, including a reference to an overweight female co-worker as “thunder thighs”; and (14) regularly used the term “faggot” to refer to gays and told insulting jokes about gays while at work. It is not fatal to Plaintiffs claim that most of the remarks attributed to Herren were not targeted at her. A plaintiff may have a viable hostile work environment claim under Title VII even if the remarks were not directed at her. Edwards v. Wallace Community College, 49 F.3d 1517, 1522 (11th Cir.1995) citing Busby v. City of Orlando, 931 F.2d 764, 772 (11th Cir. 1991). Even remarks that were not directed at the protected class to which Plaintiff belongs (here, women) may be considered in evaluating the overall level of workplace harassment. Remarks targeting members of other minorities may contribute to the overall hostility of the working environment for a minority employee. Cruz v. Coach Stores, Inc., 202 F.3d 560, 570 (2nd Cir.2000); see also Pospicil v. Buying Office, Inc., 71 F.Supp.2d 1346, 1357 (N.D.Ga.1999) (Plaintiff may make out claim by showing the existence of other conduct, not expressly involving her, intentionally designed to create an abusive or hostile work environment, which was designed to demean and minimize her importance in the workplace). Moreover, Plaintiff may support a claim of hostile work environment by the use of harassing conduct she learned of through hearsay, so long as she was aware of" }, { "docid": "22909136", "title": "", "text": "spoken by co-workers had to be so “commonplace, overt and denigrating that they created an atmosphere charged with racial hostility.” E.E.O.C. v. Beverage Canners, Inc., 897 F.2d 1067, 1068 (11th Cir.1990). In deciding whether a hostile environment was created factors to consider include the frequency of the discriminatory conduct, the severity of the discrimina tory conduct, whether the conduct is threatening or humiliating, and whether the con-’ duct unreasonably interferes with the plaintiffs performance at work. Harris, — U.S. at-, 114 S.Ct. at 372. The employer will be held liable if it fails to discover a hostile atmosphere and to take appropriate remedial steps. Busby, 931 F.2d at 785. See also Henson v. City of Dundee, 682 F.2d 897, 901 (11th Cir.1982). A plaintiff may have a viable hostile environment claim even if the racial remarks were not directed at her. Busby, 931 F.2d at 785. The district court did not err in holding that the summary judgment record did not substantiate a hostile work environment claim. We have reviewed the summary judgment material. As the court held, some of the incidents relied upon were not made known to Edwards until after her termination and, therefore, could not have contributed to her subjective view of a hostile environment. See Harris, — U.S. at-, 114 S.Ct. at 370 (the plaintiff must subjectively view the conduct as hostile). Other alleged incidents, as the court correctly held, were purely speculation by Edwards. Still others concerned statements said to have been made to third parties by fourth parties. Apart from hearsay problems, there was insufficient information as to when the statements were made, how knowledge of them was acquired, and when Edwards was informed of them (if she was). In her answers to interrogatories, Edwards refers generally to racial references concerning her made by co-worker Vardaman. These too were not identified as to how they were' made, to whom they were made, and how and when they were made known to Edwards. Edwards also says that she did not receive information pertinent to. her employment that Caucasian employees did receive. However, in her deposition" }, { "docid": "5641176", "title": "", "text": "of workplace life.”). To “[prevent] Title VII from expanding into a general civility code,” the Supreme Court has emphasized as “crucial” the requirement that the behavior be “so objectively offensive as to alter the ‘conditions’ of the victim’s employment.” Oncale, 523 U.S. at 81, 118 S.Ct. 998; see also Faragher, 524 U.S. at 788, 118 S.Ct. 2275 (“[C]on-duct must be extreme to amount to a change in the terms and conditions of employment. ...”). The facts alleged to support the plaintiffs hostile work environment claim are essentially identical to those alleged in support of her retaliation and disparate treatment claims. Namely, the plaintiff alleges that the defendant engaged in behavior that created a hostile work environment when supervising Officer Sypher “staffed] in a loud and aggressive manner, that if he were to put any statements in writing, those statements would include an evaluation that would lead to a demotion” while he “slammed his hands on the desk” during a meeting regarding her reassignment. Compl. ¶¶ 21, 39. Additionally, the plaintiff alleges that Officer Sypher’s “demeaning” response to her request for personnel assistance (suggesting she was “confused”), her “supervisors’ subtle discriminatory conduct,” and her exclusion from the planning and presentation of training courses by the Training Division supervisors contributed to the hostile work environment. PL’s Opp’n Mem. at 12. The defendant naturally argues that this conduct falls short of creating a hostile work environment. Def.’s Mem. at 13-14. The Court agrees. Although the conduct alleged by the plaintiff may have been offensive, it cannot be reasonably inferred from the plaintiffs allegations that the defendant’s conduct meets the demanding standard articulated by the Supreme Court. Even if taken as true, the supervising officer’s “demeaning manner” and loud, aggressive words are neither severe nor pervasive enough to create a hostile work environment. See Freedman v. MCI Telecomms. Corp., 255 F.3d 840, 848-49 (D.C.Cir.2001) (finding supervisor’s “nasty attitude” insufficient to establish a hostile work environment); Johnson, 699 F.Supp.2d at 302 (dismissing hostile work environment claim where plaintiff admitted that supervisor’s tone was only “negative,” “harsh,” “unkind,” and “dismissive”). The plaintiffs exclusion from the planning" }, { "docid": "9351077", "title": "", "text": "n. 1, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998)); see also Indest v. Freeman Decorating, Inc., 164 F.3d 258, 264 (5th Cir.1999) (“All of the sexual hostile environment cases decided by the Supreme Court have involved patterns or allegations of extensive, long lasting, unredressed, and uninhibited sexual threats or conduct that permeated the plaintiffs’ work environment.”). It is not enough, furthermore, that the plaintiff feel intimidated or abused. To be actionable, the offensive conduct must create “an objectively hostile or abusive work environment — an environment that a reasonable person would find hostile or abusive .... ” Harris, 510 U.S. at 21, 114 S.Ct. 367 (1993); see also Oncale, 523 U.S. at 81, 118 S.Ct. 998 (“the objective severity of the harassment should be judged from the perspective of a reasonable person in the plaintiffs position, considering all the circumstances”) (internal quotation and citation omitted). Assuming that Mr. Carter’s allegations that Ms. Edwards “caressed [him] on his knee,” “placed her breast on [his] arm,” and “placed her fingers on [his] buttocks” are true, as one must do at this stage, these three isolated incidents are not sufficiently severe in quantity or quality to unreasonably interfere with plaintiffs work performance or create a hostile work environment. Workplace sexual harassment claims based on such minor allegations are dismissed because “isolated incidents (unless extremely serious) will not amount to discriminatory changes in the ‘terms and conditions of employment.’ ” Faragher, 524 U.S. at 788, 118 S.Ct. 2275. See, e.g., Hilt-Dyson v. City of Chicago, 282 F.3d 456, 463-64 (7th Cir.2002) (allegations that supervisor twice rubbed plaintiffs back and shoulders and stared at her inappropriately were insufficient to create hostile work environment); Gupta v. Fla. Bd. of Regents, 212 F.3d 571, 585 (11th Cir.2000) (claim that coworker momentarily put his hand on plaintiffs knee, touched the hem of her dress, touched her ring and bracelet, and repeatedly asked her to lunch did not establish a hostile environment claim); Valentine-Johnson v. Roche, 238 F.Supp.2d 911, 917 (E.D.Mich.2003) (claim that supervisor put his arm around plaintiff without her consent and stood too close to her did" }, { "docid": "21203003", "title": "", "text": "the conduct reasonably interferes with the employee’s performance. These standards for judging hostility are sufficiently demanding to ensure that Title VII does not become a “general civility code.” See Oncale, 523 U.S. at 80, 118 S.Ct. 998 (explaining that Title VII “does not prohibit all verbal or physical harassment in the workplace,” only discriminatory harassment that satisfies the requirements of the statute). Properly applied, this will filter out complaints attacking “the ordinary tribulations of the workplace, such as the sporadic use of abusive language, gender-related jokes, and occasional teasing.” Faragher, 524 U.S. at 787, 118 S.Ct. 2275 (citations omitted); see also Breeden, 532 U.S. at 271, 121 S.Ct. 1508 (“simple teasing, offhand comments, and isolated incidents (unless extremely serious)” are insufficient); Neuren, 43 F.3d at 1513. Moreover, it must be clear that the hostile work environment was the result of discrimination based on a protected status. As the Second Circuit has explained: Everyone can be characterized by sex, race, ethnicity, or (real or perceived) disability; and many bosses are harsh, unjust, and rude. It is therefore important in hostile work environment cases to exclude from consideration personnel decisions that lack a linkage or correlation to the claimed ground of discrimination. Otherwise, the federal courts will become a court of personnel appeals. Alfano v. Costello, 294 F.3d 365, 377 (2d Cir.2002). To sustain her hostile work environment claim, then, plaintiff must produce evidence that she was discriminated against because of her race or gender. See, e.g., Hardin v. S.C. Johnson & Son, Inc., 167 F.3d 340, 345-46 (7th Cir.1999) (hostile work environment claim failed where there was insufficient evidence that the alleged harassing behavior was motivated by discrimination); Jones, 12 F.Supp.2d at 12 (hostile work environment claim failed where plaintiff had “not demonstrated that any of the conduct of which he eomplain[ed] was related to his race, or that his workplace was permeated with racially discriminatory behavior”). Plaintiffs hostile work environment claim is based upon several distinct allegations. First, plaintiff relies on the same set of facts underlying her disparate treatment claims. As discussed above, however, the Court has found no" }, { "docid": "22141338", "title": "", "text": "114 S.Ct. 367). The courts should examine the conduct in context, not as isolated acts, and determine under the totality of the circumstances whether the harassing conduct is sufficiently severe or pervasive to alter the terms or conditions of the plaintiffs employment and create a hostile or abusive working environment. Id; see Harris, 510 U.S. at 23, 114 S.Ct. 367; Henson, 682 F.2d at 904; Faragher, 118 S.Ct. at 2283 (citing Harris, 510 U.S. at 23, 114 S.Ct. 367, and explaining that “[w]e directed courts to determine whether an environment is sufficiently hostile or abusive by ‘looking at all the circumstances’ ”). Other circuits have applied these factors to delineate a minimum level of severity or pervasiveness necessary for harassing conduct to constitute discrimination in violation of Title VII. Many decisions throughout the circuits have rejected sexual-harassment claims based on conduct that is as serious or more serious than the conduct at issue in this appeal. Shepherd v. Comptroller of Public Accounts of Texas, 168 F.3d 871, 872-75 (5th Cir.1999) (holding that several incidents over a two-year period, including comment “your elbows are the same color as your nipples,” another comment that plaintiff had big thighs, touching plaintiffs arm, and attempts to look down the plaintiffs dress, were insufficient to support hostile-environment claim); Indest v. Freeman Decorating, Inc., 164 F.3d 258, 264-67 (5th Cir.1999) (noting it was “dubious” whether several sexually oriented comments and gestures and an implied threat of retaliation for refusing a sexual advance would be sufficient to establish a hostile environment); Quinn v. Green Tree Credit Corp., 159 F.3d 759, 768 (2d Cir.1998) (holding that statement that plaintiff had the “sleekest ass” in office plus single incident of “deliberately” touching plaintiffs “breasts with some papers that he was holding in his hand” were insufficient to alter the terms or conditions of the plaintiffs employment); Adusumilli v. City of Chicago, 164 F.3d 353, 357 (7th Cir.1998) (holding actions insufficient to support hostile environment claim where co-employees teased plaintiff, made sexual jokes aimed at her, asked her what “putting one rubber band on top and another on the bottom" }, { "docid": "18986960", "title": "", "text": "See Faragher, 524 U.S. at 788, 118 S.Ct. 2275 (observing that “ ‘simple teasing’ ... offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the ‘terms and conditions of employment’ ”); Tomasello v. Rubin, 167 F.3d 612, 620 (D.C.Cir.1999) (holding that summary judgment was appropriate because the nondiscriminatory memoranda and isolated comments were insufficient to support a claim of hostile work environment). The court, however, declines the defendant’s invitation to take “judicial notice” that calling a person “loud” cannot be a racially derogatory comment. Def.’s Mot. at 8. It should at this point be common knowledge that the most pervasive expressions of racial animus are often cloaked in neutral language. Statements regarding an individual’s personal appearance, work ethic or personality, for instance, while containing no overt references to the individual’s race, can, in a broader context, be plainly understood expressions of racial hostility. In this case, however, the plaintiffs deposition testimony reveals that she perceived a clear distinction between “racial” comments and other denigrating comments that she considered “character assassination.” See PL’s Opp’n, Ex. 1 at 7 (remarking that “[w]e can take the race out of it, just offensive, period, character assassinations, disrespect of another person’s character”); see also id., Ex. 1 at 28-29 (disavowing her prior allegation that Grafeld made “racially derogatory” comments about her in 1999 by testifying, “I’m not alleging that [the comments] were ra cial. I’m alleging that they were derogatory and denigrating”). This testimony further indicates that she did not perceive the statements that she was loud and potentially violent as drawing upon the stereotype of the “angry black woman” but rather as part of her supervisors’ efforts to assassinate her character: Q Was there anything else that constituted such character assassination? A If it’s been said I would barricade myself in a door in my office as Mrs. Thain told [others]. And that I’m antisocial and I don’t get along with managers. That is character assassination. That has nothing to do with work or work performance. That is painting me up as a difficult person and incompetency follows" }, { "docid": "3452105", "title": "", "text": "Supreme Court emphasized “that conduct must be extreme to amount to a change in the terms and conditions of employment.” Id. at 788, 118 S.Ct. 2275. Guided by Harris, we have ruled workplace conduct does not violate Title VII unless it is “severe or pervasive enough to create an objectively hostile or abusive work environment — an environment that a reasonable person would find hostile or abusive.” Gipson v. KAS Snacktime Co., 171 F.3d 574, 579 (8th Cir.1999) (quoting Harris, 510 U.S. at 21, 114 S.Ct. 367). We must “ensure that Title VII does not become a ‘general civility code.’ ” Faragher, 524 U.S. at 788, 118 S.Ct. 2275 (quoting Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998)). Not all unpleasant and uncivil conduct creates a hostile work environment. See Woodland, 302 F.3d at 843; Ross v. Kansas City Power & Light Co., 293 F.3d 1041, 1051 (8th Cir.2002); Willis v. Henderson, 262 F.3d 801, 808-10 (8th Cir.2001). “[Ijsolated incidents (unless extremely serious) will not amount to discriminatory changes in the ‘terms and conditions of employment.’” Faragher, 524 U.S. at 788, 118 S.Ct. 2275 (quoting Oncale, 523 U.S. at 82, 118 S.Ct. 998). 1. Harassment Based on Race The DSS argues, and the magistrate judge found, the evidence established nothing more than Lee had an extreme, intense dislike for Bowen unrelated to her race. We do not agree. Viewing, as we must, the evidence in the light most favorable to Bowen, we conclude she produced sufficient evidence from which reasonable jurors could infer that Lee’s conduct toward Bowen was based on race. Lee’s two “white bitch” epithets were explicitly racial and were directed specifically to Bowen, a white woman. Because the epithets carried clear racial overtones, they permit an inference that racial animus motivated not only her overtly discriminatory conduct but all of her offensive conduct towards Bowen. See O’Shea v. Yellow Tech. Servs., Inc., 185 F.3d 1093, 1097 (10th Cir.1999) (hostile work environment based on sex) (agreeing with Carter v. Chrysler Corp., 173 F.3d 693, 701 (8th Cir.1999)). 2. Severe" }, { "docid": "11527309", "title": "", "text": "work environment claim under Title VII even if the remarks were not directed at her. Edwards v. Wallace Community College, 49 F.3d 1517, 1522 (11th Cir.1995) citing Busby v. City of Orlando, 931 F.2d 764, 772 (11th Cir. 1991). Even remarks that were not directed at the protected class to which Plaintiff belongs (here, women) may be considered in evaluating the overall level of workplace harassment. Remarks targeting members of other minorities may contribute to the overall hostility of the working environment for a minority employee. Cruz v. Coach Stores, Inc., 202 F.3d 560, 570 (2nd Cir.2000); see also Pospicil v. Buying Office, Inc., 71 F.Supp.2d 1346, 1357 (N.D.Ga.1999) (Plaintiff may make out claim by showing the existence of other conduct, not expressly involving her, intentionally designed to create an abusive or hostile work environment, which was designed to demean and minimize her importance in the workplace). Moreover, Plaintiff may support a claim of hostile work environment by the use of harassing conduct she learned of through hearsay, so long as she was aware of the harassing incidents at the relevant time at which she alleges she experienced the hostile environment. See Carter v. Chrysler Corp., 173 F.3d 693, 701 (8th Cir.1999) (hostile work environment claimant may introduce evidence of offensive mens’ room graffiti she learned about through hearsay during her employ, even though she had never been inside the men’s room); Schwapp v. Town of Avon, 118 F.3d 106, 111 (2nd Cir.1997) (allowing use of eight hearsay incidents of racially offensive re marks made outside Plaintiffs presence to be considered in hostile work environment claim, because “the fact that a plaintiff learns second-hand of a racially derogatory comment or joke by a fellow employee or supervisor also can impact the work environment”). The incidents alleged by Plaintiff, viewed in their entirety and accepted as true, as they must be at this stage of the litigation, leave no doubt that Herren was a boorish and unpleasant co-worker. Title VII, however, does not guarantee an environment free of such irritants. The Court finds that Herren’s conduct falls short of the severity" }, { "docid": "11527320", "title": "", "text": "statement that “engenders offensive feelings in an employee” would not affect the conditions of employment sufficiently to violate Title VII). On occasion, courts have held that nonstop use of abusive language, even unaccompanied by touching or other conduct that escalates the harassment, can be enough to sustain a complaint. See, e.g., Frazier v. Smith, 12 F.Supp.2d 1362, 1370 (S.D.Ga.1998) (“repeated barrage of racially offensive remarks,” including some addressed directly to Plaintiffs face, suffice to overcome motion for summary judgment on hostile work environment claim). The prevailing view, however, appears to be that mere insults by non-supervisors are insufficient to support a claim of hostile work environment absent some aggravating factor, such as physically intimidating conduct accompanying the slurs. See, e.g., Cruz v. Coach Stores, Inc., 202 F.3d 560, 571 (2nd Cir.2000) (fact that co-worker not only “constantly made racially derogatory remarks,” but also frequently backed Plaintiff against a wall while leering at her, “brings this case over the line separating merely offensive or boorish conduct from actionable harassment”). Wherever the exact boundary lies between a sporadic and non-actionable irritation versus persistent and actionable harassment, this Court is persuaded that Plaintiffs claim falls on the side of the former. Her complaint is fatally flawed because she fails to differentiate repetitive office gossip about the same conduct from repeated and distinct incidents of conduct. Without such a distinction, this Court cannot conclude from the record at hand that Herren’s racist statements were truly pervasive as opposed to merely isolated. This illustrates a weakness that infects any complaint relying primarily on hearsay from co-workers — the same few incidents, repeated in the echo chamber of a small workplace, may be magnified into the proverbial “federal case.” See Edwards v. Wallace Community College, 49 F.3d 1517, 1522 (11th Cir.1995) (Plaintiff may not sustain complaint of hostile work environment on the basis of “statements said to have been made to third parties by fourth parties” where record fails to show when the statements were made, how knowledge of them was acquired, and when Plaintiff learned of them). While repeatedly hearing about the same episodes no" }, { "docid": "18251771", "title": "", "text": "Ms. Webb-Edwards’s figure and good looks severely hostile or abusive. Ms. Webb-Edwards has failed to demonstrate that Sgt. Mankewich’s inappropriate comments about Ms. Webb-Ed wards’s appearance unreasonably interfered with her work performance or the terms and conditions of her employment. Sgt. Mankewich’s taunting jest about eating Ms. Webb-Edwards for lunch is more troubling. It was directed at her husband in Ms. Webb-Edward’s presence. The record shows, however that she did not report it to Lt. McKinley on April 21, 2004, when she complained about Sgt. Mankewich’s unwelcome comments about her appearance. Her husband made a report of the lunch comment on June 10, 2004. Furthermore, it is the only comment that could be construed as referring to sexual activity involving Ms. Webb-Edwards. It was rather clearly a disgusting attempt at humor, unaccompanied by any other improper conduct. The Supreme Court held in Faragher v. Boca Raton, 524 U.S. 775, 788, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998), that “offhand comments and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the terms and conditions of employment.” In Gupta, this Court noted that: [a]ll the sexual hostile work environment cases decided by the Supreme Court has involved patterns or allegations of extensive, long lasting, unredressed and uninhibited sexual threats or conduct that permeated the plaintiffs work environment. Gupta, 212 F.3d at 586 (quoting Indest v. Freeman Decorating, Inc., 164 F.3d 258, 264 (5th Cir.1999)). In this matter, the record shows that Ms. Webb-Edwards’s employer took immediate action to redress her grievances by granting her request to be transferred to a different office and required Sgt. Mankewich to apologize for his behavior. After looking at the totality of the circumstances independently, we agree with the District Court that Ms. Webb-Edwards failed to demonstrate that Sgt. Mankewich’s boorish remarks were severe or pervasive. They did not alter the terms and conditions of her employment. The District Court did not err in granting summary judgment on Ms. Webb-Edwards’s sexual harassment claim. B Ms. Webb-Edwards further contends the District Court erred in concluding that she failed to demonstrate that she was not" }, { "docid": "20128079", "title": "", "text": "of Boca Raton, 524 U.S. 775, 788, 118 S.Ct. 2275, 2284, 141 L.Ed.2d 662 (1998) (citation omitted). In other words, the “standards for judging hostility are sufficiently demanding to ensure that [discrimination laws do] not become a general civility code.” Id. at 788, 118 S.Ct. at 2283-84 (citing Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80, 118 S.Ct. 998, 1002, 140 L.Ed.2d 201 (1998)) (specifically applying in Title VII context). A plaintiff may have a viable hostile environment claim even if the racial remarks were not directed at him. Edwards, 49 F.3d at 1522 (citing Busby, 931 F.2d at 785). Remarks and conduct targeted at others “may contribute to the overall hostility of the working environment.” Brantley v. City of Macon, 390 F.Supp.2d 1314,1324 (M.D.Ga.2005) (citation omitted). A plaintiff may also support a claim of hostile work environment by the use of harassing conduct he learned of through hearsay, “so long as he was aware of the harassing incidents at the relevant time at which he alleges he experienced the hostile environment.” Id. (citing Carter v. Chrysler Corp., 173 F.3d 693, 701 (8th Cir.1999); Schwapp v. Town of Avon, 118 F.3d 106, 111 (2nd Cir.1997)). However, the Court must first look to whether the conduct is threatening or humiliating, and whether it unreasonably interfered with plaintiffs performance at work. Edwards, 49 F.3d at 1522. A. Plaintiffs’ Complaints Melton specifically complains about (1) a racially inappropriate joke told to him by Wayne Brown, (2) Melton’s belief that Holt opined others were racists, (3) an overheard conversation between Onorato and Holt pertaining to the termination of a black employee, (4) a racially offensive joke told to Onorato in Melton’s presence, (5) black employees were subject to harsher discipline than whites and (6) various incidences unrelated to Melton. See Doc. 120 at p. 75-77; see also Doc. 97, Tab 9, Melton Depo 167: 20-168:16, 283:1-285:5. The only specific racial comments on which Melton relies are the two racially offensive jokes. The conversation between Holt and Onorato had no specific reference to race, but Melton still asserts his unsupported assumption as a" }, { "docid": "9351076", "title": "", "text": "assuming arguendo that Mr. Carter did exhaust the necessary administrative remedies, his sexual harassment claim would nonetheless fail for several reasons. Title VII is not a “general civility code for the American workplace.” Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998). It does not serve as a remedy for all instances of verbal or physical harassment, but only those creating a hostile work environment. Id. A workplace is not “hostile” under Title VII unless the offensive conduct “permeates the workplace with discriminatory intimidation, ridicule or insult that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.” Williams v. Verizon Washington, D.C., Inc., 266 F.Supp.2d 107, 124 (D.D.C.2003) (quoting Barbour v. Browner, 181 F.3d 1342, 1347 (D.C.Cir.1999)). Therefore, to sustain a sexual harassment claim, the alleged incidents must be “more than episodic; they must be sufficiently continuous and concerted in order to be deemed pervasive.” Id. (quoting Faragher v. City of Boca Raton, 524 U.S. 775, 787 n. 1, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998)); see also Indest v. Freeman Decorating, Inc., 164 F.3d 258, 264 (5th Cir.1999) (“All of the sexual hostile environment cases decided by the Supreme Court have involved patterns or allegations of extensive, long lasting, unredressed, and uninhibited sexual threats or conduct that permeated the plaintiffs’ work environment.”). It is not enough, furthermore, that the plaintiff feel intimidated or abused. To be actionable, the offensive conduct must create “an objectively hostile or abusive work environment — an environment that a reasonable person would find hostile or abusive .... ” Harris, 510 U.S. at 21, 114 S.Ct. 367 (1993); see also Oncale, 523 U.S. at 81, 118 S.Ct. 998 (“the objective severity of the harassment should be judged from the perspective of a reasonable person in the plaintiffs position, considering all the circumstances”) (internal quotation and citation omitted). Assuming that Mr. Carter’s allegations that Ms. Edwards “caressed [him] on his knee,” “placed her breast on [his] arm,” and “placed her fingers on [his] buttocks” are true, as one" }, { "docid": "23585646", "title": "", "text": "may consider: (1) the frequency of the conduct; (2) the severity of the conduct; (3) “whether it is physically threatening or humiliating, or a mere offensive utterance”; and (4) whether it unreasonably interferes with the employee’s ability to complete his or her assigned duties. Harris v. Forklift Sys., Inc., 510 U.S. 17, 23, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993). Having failed to show that the use of racially charged comments continued during the relevant statutory period, Dandy is barred from relying on conduct prior to September 14, 1997, to sustain her hostile work environment claim under the “continuing violation” doctrine. Morgan, 536 U.S. at 105, 122 S.Ct. 2061; Hardin, 167 F.3d at 344. Focusing on the pertinent time period, Dandy has alleged solely that she was called a “tiger” (which presumably is an attack on her gender not her race) and that another African American employee was called “lazy” and a white female coworker was called “ignorant.” She has failed to allege that these statements were attributable to race or gender. Furthermore, “offhand comments, and isolated incidents (unless extremely serious)” are not sufficient to sustain a hostile work environment claim. Adusumilli v. City of Chicago, 164 F.3d 353, 361 (7th Cir.1998) (quoting Faragher v. City of Boca Raton, 524 U.S. 775, 786, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998)). We must conclude that a reasonable person could not find a work environment hostile based on these two statements. See Harris, 510 U.S. at 21, 114 S.Ct. 367. Even if Dandy were permitted to rely on the comments made in 1992 and 1993, they would be insufficient to prove that she was subjected to a hostile work environment on the basis of race. The use of racial epithets is deplorable and this court has recognized that the use of “the word ‘nigger’ can have a highly disturbing impact on the listener.” Hrobowski, 358 F.3d at 477. We also acknowledge that “a supervisor’s use of the term impacts the work environment far more severely than use by co-equals.” Rodgers v. Western-Southern Life Ins. Co., 12 F.3d 668, 675 (7th Cir.1993). However," }, { "docid": "5922290", "title": "", "text": "contacts were infrequent. Additionally, the Court finds that as Slay did not attach any significance to these comments or contacts, a reasonable person would likewise not find them to be either severe or physically threatening or humiliating. Finally, the Plaintiff has not presented any evidence to show that these alleged offensive contacts interfered with her work performance. Accordingly, the Court finds that the occasional comments and contacts that occurred prior to the November 16, 1995, incident involving the Plaintiff and Collier did not create a sexually hostile or abusive work environment. Slay alleges that Collier propositioned her to engage in sexual intercourse on November 16, 1995. The Plaintiff has not provided any evidence to show that Collier, after November 16, 1995, again propositioned her or otherwise made any sexually derogatory or harassing comments. The Court, therefore finds that the Plaintiff has alleged only a single occurrence of sexually discriminatory conduct by her supervisor that she found to be offensive. The Fifth Circuit has held that “offhand comments and isolated incidents (unless extremely serious) will not amount to discriminatory changes in ‘terms and conditions of employment.’ ” Indest v. Freeman Decorating, Inc., 164 F.3d 258, 264 (5th Cir.1999) (citing Faragher v. City of Boca Raton, 524 U.S. 775, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998)). Instead, the finding of a sexually hostile work environment is typically reserved for cases that “involved patterns or allegations of extensive, longlasting, unredressed, and uninhibited sexual threats or conduct that permeated the plaintiffs work environment.” Id. (summary of United States Supreme Court cases omitted). The Court, after considering the allegation of Slay in the light most favorable to her, finds that a reasonable person would not conclude that the alleged one-time proposition by Collier, absent any other sexually discriminatory conduct, would create a hostile or abusive working environment. Additionally, the Court finds that a reasonable individual would not conclude that the one-time proposition in combination with the other “occasional” comments and contacts complained of by Slay would create a hostile or abusive work environment. Even if the Court were to find that the actions complained of" }, { "docid": "11693069", "title": "", "text": "she would not have been treated in the same manner.” Aman, 85 F.3d at 1083. The Supreme Court circumscribed the definition of a hostile work environment so that “[t]hese standards for judging hostility are sufficiently demanding to ensure that Title VII does not become a ‘general civility code.’” Faragher, 524 U.S. at 788, 118 S.Ct. 2275 (citations omitted). b. The Plaintiff Has Failed to Establish a Hostile Work Environment In this case, the plaintiff has failed to present sufficient evidence of a hostile work environment to survive summary judgment. Even assuming that all of the plaintiffs claims are true, the court agrees with the defendants in that “the type of conduct that [Ms.] Walton complains of, i.e., rude comments, unjust criticism, and stressful working conditions, amount to ‘ordinary tribulations of the workplace’ that [is] insufficient as a matter of law for a hostile environment case.” Mot. for Summ. J. at 12 (citing Barbour v. Broumer, 181 F.3d 1342, 1348-49 (D.C.Cir.1999)). The plaintiff bases the majority of these allegations of a hostile work environment solely on her own allegations and provides the court with very little supporting evidence to strengthen her position. See Pl.’s Opp’n at 5-6 (citing Walton Decl. ¶8). While in some cases these allegations alone might allow the plaintiff to overcome summary judgment, in this case, the lack of credible or corroborative evidence offered with respect to specific instances of special treatment for white employees, rude comments, unjust criticism, holiday overtime, denied benefits, or termination threats justifies a ruling for the defendant. See Anderson, 477 U.S. at 252, 106 S.Ct. 2505. Therefore, the court grants summary judgment for the defendants on the plaintiffs hostile-work-environment claim. 3. Discriminatory Denial of Training The plaintiff alleges that the defendants discriminated against her by denying her field training and on-the-job training while she was employed with Bell Atlantic-Virginia. See Mot. for Summ. J. at 16. The defendants submit that this claim fails because the plaintiff has not offered any evidence to support a prima-facie case. See id. In her answers to interrogatories and in her deposition testimony, the plaintiff makes numerous allegations" }, { "docid": "9351078", "title": "", "text": "must do at this stage, these three isolated incidents are not sufficiently severe in quantity or quality to unreasonably interfere with plaintiffs work performance or create a hostile work environment. Workplace sexual harassment claims based on such minor allegations are dismissed because “isolated incidents (unless extremely serious) will not amount to discriminatory changes in the ‘terms and conditions of employment.’ ” Faragher, 524 U.S. at 788, 118 S.Ct. 2275. See, e.g., Hilt-Dyson v. City of Chicago, 282 F.3d 456, 463-64 (7th Cir.2002) (allegations that supervisor twice rubbed plaintiffs back and shoulders and stared at her inappropriately were insufficient to create hostile work environment); Gupta v. Fla. Bd. of Regents, 212 F.3d 571, 585 (11th Cir.2000) (claim that coworker momentarily put his hand on plaintiffs knee, touched the hem of her dress, touched her ring and bracelet, and repeatedly asked her to lunch did not establish a hostile environment claim); Valentine-Johnson v. Roche, 238 F.Supp.2d 911, 917 (E.D.Mich.2003) (claim that supervisor put his arm around plaintiff without her consent and stood too close to her did not rise to the level of “severe and pervasive” harassment); Murray v. City of Winston-Salem, 203 F.Supp.2d 493, 498-99 (M.D.N.C.2002) (allegations that supervisor made a suggestive comment to plaintiff, put his arm around her, touched her thigh twice, and inappropriately stared at her were insufficient to establish a hostile work environment). Moreover, Mr. Carter has failed to present evidence that Ms. Edwards’ conduct was objectively “physically threatening or humiliating,” or that a reasonable person would view the conduct as severe, abusive, or even distracting. See Gupta, 212 F.3d at 586. Instead, the record suggests that Mr. Carter’s discomfort with the incidents stems from his general discomfort with being in close proximity to other people. Despite his extreme sensitivities, the alleged harassment represents, at most, “ordinary tribulations of the workplace.” Faragher, 524 U.S. at 788, 118 S.Ct. 2275. There is nothing, furthermore, to support or corroborate Mr. Carter’s assertion that Ms. Edwards’ alleged conduct was attributable to his gender or was in any way sexual in nature. See Oncale, 523 U.S. at 80-81, 118 S.Ct. 998" }, { "docid": "22068059", "title": "", "text": "the behavior and conduct of a sexually or gender-related nature collectively in determining whether it meets the “sufficiently severe or pervasive” requirement. We have done so, and it does not. The alleged harassment in this case exemplifies “the ordinary tribulations of the workplace,” Faragher, 524 U.S. at 788, 118 S.Ct. at 2284, which the Supreme Court and this Court have held do not constitute actionable sexual harassment. Gupta failed to present evidence that Rhodd’s conduct was in any way “physically threatening or humiliating,” or that a reasonable person would view the conduct as “severe.” Mendoza, 195 F.3d at 1246. The Fifth Circuit recently opined, “All of the sexual hostile environment cases decided by the Supreme Court have involved patterns or allegations of extensive, long lasting, unredressed, and uninhibited sexual threats or conduct that permeated the plaintiffs’ work environment.” Indest v. Freeman Decorating, Inc., 164 F.3d 258, 264 (5th Cir.1999) (citations omitted). This is not such a case. Furthermore, a finding that Gupta’s complaints constitute sexual harassment would lower the bar of Title VII to punish mere bothersome and uncomfortable conduct, and would “trivialize true instances of sexual harassment.” Mendoza, 195 F.3d at 1252 n. 10. Based upon Mendoza, we hold that there was insufficient evidence presented at trial to support the jury’s verdict finding the Board liable for hostile environment sexual harassment under Title VII, and we reverse the judgment of the district court on that claim. B. The Retaliation Claim Retaliation is a separate violation of Title VII. “To recover for retaliation, the plaintiff ‘need not prove the underlying claim of discrimination which led to her protest,’ so long as she had a reasonable good faith belief that the discrimination existed.” Meeks v. Computer Assocs. Int’l., 15 F.3d 1013, 1021 (11th Cir.1994) (quoting Tipton v. Canadian Imperial Bank of Commerce, 872 F.2d 1491, 1494 (11th Cir.1989)). Although the conduct Gupta complained about was not so severe and pervasive that it altered her working conditions, we cannot say that she lacked a “reasonable good faith belief’ that she was being sexually harassed. As a result, the jury’s verdict finding retaliation" } ]

[ { "docid": "22723495", "title": "", "text": "independent gun control statutes, each fully enforceable on its own terms, is confirmed by the legislative history of the Omnibus Act. Section 922 (h) derived from § 2 (f) of the Federal Firearms Act of 1938, 52 Stat. 1251, and § 5 of that Act, 52 Stat. 1252, authorized the same maximum prison term as § 924 (a). Title IV of the Omnibus Act merely recodified with some modification this “carefully constructed package of gun control legislation,” which had been in existence for many years. Scarborough v. United States, 431 U. S. 563, 570 (1977); see United States v. Bass, supra, at 343 n. 10; 15 U. S. C. §§ 902, 905 (1964 ed.). By contrast, Title VII was a “last-minute” floor amendment, “hastily passed, with little discussion, no hearings, and no report.” United States v. Bass, supra, at 344, and n. 11; see Scarborough v. United States, supra, at 569-570, and n. 9. And the meager legislative debates involving that amendment demonstrate no intention to alter the terms of Title IV. Immediately before the Senate passed Title VII, Senator Dodd inquired whether it would substitute for Title IV. 114 Cong. Rec. 14774 (1968). Senator Long, the sponsor of the amendment, replied that § 1202 would “take nothing from” but merely “add to” Title IV. 114 Cong. Rec. 14774 (1968). Similarly, although Title VII received only passing mention in House discussions of the bill, Representative Machen made clear that the amendment would “complement . . . the gun-control legislation contained in title IV.” Id., at 16286. Had these legislators intended to pre-empt Title IV in cases of overlap, they presumably would not have indicated that the purpose of Title VII was to complement Title IV. See Scarborough v. United States, supra, at 573. These discussions, together with the language and structure of the Omnibus Act, evince Congress’ clear understanding that the two Titles would be applied independently. In construing § 1202 (a) to override the penalties authorized by § 924 (a), the Court of Appeals relied, we believe erroneously, on three principles of statutory interpretation. First, the court invoked the" } ]

[ { "docid": "11811919", "title": "", "text": "not violate the double jeopardy clause. Our decision is supported by the legislative history of Title VII of the Omnibus Crime Control Act. The legislative history shows that Congress intended Title VII of the Act to complement Title IV of the Act. See United States v. Batchelder, 442 U.S. 114, 120, 99 S.Ct. 2198, 2202, 60 L.Ed.2d 755 (1979); Scarborough v. United States, 431 U.S. 563, 573, 97 S.Ct. 1963, 1968, 52 L.Ed.2d 582 (1977). The Court, in Scarborough v. United States, found that the essence of Congress’ intent under section 1202(a), and the intent stressed in the legislative history, was to punish the possession of weapons by people “who have no business possessing [them].” Id. at 577, 97 S.Ct. at 1970 (quoting 114 Cong. Rec. 13869 (1968)). The focus on separately punishing possession is made clear in the following statement by Senator Long in introducing the amendment: Of all the gun bills that have been suggested, debated, discussed and considered, none except this Title VII attempts to bar possession of a firearm from persons whose prior behaviors have established their violent tendencies * *. * * * Under Title VII, every citizen could possess a gun until commission of his first felony. Upon his conviction, however, Title VII would deny every assassin, murderer, thief and burglar of [sic] the right to possess a firearm in the future * * *. Scarborough, 431 U.S. at 573, 97 S.Ct. at 1968 (quoting 114 Cong. Rec. 13868, 14773 (statement of Senator Long)). Section 1202(a)(1), therefore, describes categories of persons for whom it is an offense to possess any weapon which has been in or affected commerce. Section 922 does not separately punish possession of a weapon by a convicted felon, and 922(i) punishes only the transportation of a stolen weapon. Thus, despite the broad areas of overlap between Titles IV and VII of the Act, this is one area in which section 1202(a)(1) clearly complements section 922. We thus conclude that Congress intended to separately punish possession of a weapon by a felon, that this purpose is distinct from that underlying section" }, { "docid": "11811923", "title": "", "text": "the district court, even after the prosecuting attorney brought the discrepancy to his attention, chose to sentence Bass under section 1202(a)(1) rather than section 924(a). In United States v. Batchelder, 442 U.S. 114, 119, 99 S.Ct. 2198, 2201, 60 L.Ed.2d 755 (1979), the Supreme Court held that “[S]ection 924(a) alone delimits the appropriate punishment for violations of [section] 922(h).” The Court stressed that Congress intended that Title IV, which contains sections 922 and 924, and Title VII, which contains section 1202, of the Omnibus Crime Control Act be applied independently, and that the penalty provision of each title is specific to violations of that respective title. Id. at 122, 99 S.Ct. at 2203. The government argues that we need not address this issue on the strength of the concurrent sentence doctrine. Under this doctrine, where a defendant receives concurrent sentences on plural counts of an indictment, and where the conviction on one count is valid, a reviewing court need not pass on the validity of the defendant's conviction on another count if a ruling in defendant’s favor would not reduce the time the defendant is required to serve or otherwise prevent some prejudice to the defendant. United States v. Smith, 601 F.2d 972, 973-74 (8th Cir.), cert. denied, 444 U.S. 879, 100 S.Ct. 166, 62 L.Ed.2d 108 (1979); Sanders v. United States, 541 F.2d 190, 193 (8th Cir.1976), cert. denied, 429 U.S. 1066, 97 S.Ct. 796, 50 L.Ed.2d 784 (1977). Courts have long expressed doubt of the propriety of applying the concurrent sentence doctrine in cases on direct appeal. See Benton v. Maryland, 395 U.S. 784, 793 n. 11, 89 S.Ct. 2056, 2062 n. 11, 23 L.Ed.2d 707 (1969) (expressly reserving the question whether a total abolition of the concurrent sentence doctrine may be appropriate in cases heard on direct appeal); see also Sanders, 541 F.2d at 194; United States v. Neff, 525 F.2d 361, 363 (8th Cir.1975) (Lay, J., concurring). Without resolving this question for general applicability, we decline to apply the concurrent sentence doctrine in this instance. We therefore remand the case to the district court with instructions" }, { "docid": "22551010", "title": "", "text": "“‘carefully constructed package of gun control legislation,’ which had been in existence for many years.” Batchelder, 442 U. S., at 120 (quoting Scarborough v. United States, 431 U. S. 563, 570 (1977)). One principal purpose of Title IV was to make “it possible to keep firearms out of the hands of those not legally entitled to possess them because of age, criminal background, or incompetency . . . S. Rep. No. 1097, 90th Cong., 2d Sess., 28 (1968). Section 1202(a), on the other hand, was a “last-minute Senate amendment” to the Omnibus Act, “hastily passed, with little discussion, no hearings, and no report.” United States v. Bass, 404 U. S., at 344 (footnote omitted). The circumstances surrounding consideration of Title VII and the haste in which it was enacted may well explain why it does not dovetail neatly with the prohibition that was, at the time of its passage, already contained in Title IV. Title VII was enacted as supplementary legislation; Title VII filled the gaps in and expanded the coverage of Title IV. In short, we are persuaded that Congress had no intention of creating duplicative punishment for one limited class of persons falling within the overlap between the two Titles — convicted felons who receive firearms and who, by definition, possess them. The independent but overlapping statutes simply are not “directed to separate evils” under the circumstances. Albemaz, 450 U. S., at 343. C Having concluded that Congress did not intend petitioner’s conduct to be punishable under both §§ 922(h) and 1202(a), the only remedy consistent with the congressional intent is for the District Court, where the sentencing responsibility resides, to exercise its discretion to vacate one of the underlying convictions. The remedy of ordering one of the sentences to be served concurrently with the other cannot be squared with Congress’ intention. One of the convictions, as well as its concurrent sentence, is unauthorized punishment for a separate offense. See Missouri v. Hunter, 459 U. S. 359, 368 (1983). The second conviction, whose concomitant sentence is served concurrently, does not evaporate simply because of the concurrence of the" }, { "docid": "22719883", "title": "", "text": "or foreign commerce.” 18 U. S. C. §§ 922 (g) and (h). As Senator Long, the sponsor of Title VII, represented to Senator Dodd, the sponsor of Title IV, Title VII indeed does complement Title IV. 114 Cong. Rec. 14774; see also 114 Cong. Rec. 16286. Respondent’s reading of Title VII is fully consistent with this view. First, although subsections of the two Titles do address their prohibitions to some of the same people, each statute also reaches substantial groups of people not reached by the other. Secondly, Title VII complements Title IV by punishing a broader class of behavior. Even under respondent’s view, a Title VII offense is made out if the firearm was possessed or received “in commerce or affecting commerce”; however, Title IV apparently does not reach possessions or intrastate transactions at all, even those with an interstate commerce nexus, but is limited to the sending or receiving of firearms as part of an interstate transportation. In addition, whatever reading is adopted, Title VII and Title IV are, in part, redundant. The interstate commerce requirement in Title VII minimally applies to transportation. Since Title IV also prohibits convicted criminals from transporting firearms in interstate commerce, the two Titles overlap under both readings. The Government’s broader reading of Title VII does not eliminate the redundancy, but simply creates a larger area in which there is no overlap. While the Government would be on stronger ground if its reading were necessary to give Title VII some unique and independent thrust, this is not the case here. In any event, circumstances surrounding the passage of Title VII make plain that Title VII was not carefully molded to complement Title IV. Title VII was a last-minute Senate amendment to the Omnibus Crime Control and Safe Streets Act. The Amendment was hastily passed, with little discussion, no hearings, and no report. The notion that it was enacted to dovetail neatly with Title IV rests perhaps on a conception of the model legislative process; but we cannot pretend that all statutes are model statutes. While courts should interpret a statute with an eye" }, { "docid": "14026059", "title": "", "text": "92 S.Ct. 515, 30 L.Ed.2d 488 (1971). . Id. at 344, 92 S.Ct. 515. . 18 U.S.C.App. § 1202(a)(5), repealed by Firearm Owner’s Protection Act, Pub.L. No. 99-308, 100 Stat. 449 (May 19, 1986). . See Lewis v. United States, 445 U.S. 55, 63, 100 S.Ct. 915, 63 L.Ed.2d 198 (1980) (“It is not without significance, furthermore, that Title VII, as well Title IV of the Omnibus Act, was enacted in response to the precipitous rise in political assassinations, riots, and other violent crimes involving firearms, that occurred in this country in the 1960’s.’’); Bass, 404 U.S. at 345, 92 S.Ct. 515 (\"On the Senate floor, Senator Long, who introduced s 1202, described various evils that prompted his statute ... [including] assassinations of public figures and threats to the operation of businesses significant enough in the aggregate to affect commerce.”). . 114 Cong. Rec. 14,773-74 (1968) (\"[U]n-der Title VII, every citizen could possess a gun until the commission of his first felony. Upon his conviction, however, Title VII would deny every assassin, murderer, thief and burglar of the right to possess a firearm in the future .... Despite all that has been said about the need for controlling firearms in this Country, no other amendment heretofore offered would get at the Oswalds or the Gaits. They are the types of people at which Title VII is aimed.”) . S.Rep. No. 1501, at 22 (1968). . 114 Cong. Rec. 21,784(1968). . 415 U.S. 814, 824, 94 S.Ct. 1262, 39 L.Ed.2d 782 (1974) (quoting S.Rep. No. 1501, at 22 (1968)). . 423 U.S. 212, 218, 96 S.Ct. 498, 46 L.Ed.2d 450 (1976). . 431 U.S. 563, 573, 97 S.Ct. 1963, 52 L.Ed.2d 582 (1977) (quoting 114 Cong. Rec. 14,773 (1968) (remarks of Senator Long)). . United States v. Toner, 728 F.2d 115, 128 (2d Cir.1984). . Id. at 128-29 (quoting United States v. Toner, No. CR82-377 (E.D.N.Y. May 17, 1983) (order denying motion to dismiss a portion of an indictment)). . See supra note 9. . 27 C.F.R. § 478.11 (2004). . Id. . See supra note 21 and accompanying text. ." }, { "docid": "12040796", "title": "", "text": "the most heinous assaults, thereby defeating the clear Congressional desire to exclude minor transgressions of the law from the sweep of Title 18 U.S.C. App. § 1202(c)(2). Ill At the very least the application of 18 U.S.C. App. § 1202(a)(1) to a common law conviction exposes a latent ambiguity in that otherwise unambiguous statute. While the statute speaks clearly of the statutory convictions to which it will apply, it is silent regarding its application to common law convictions. This silence is subject to two inferences: (1) that every, common law conviction with discretionary punishment is a “felony” without regard to the seriousness of the crime or the actual punishment imposed, or (2) that the seriousness of the crime, as evidenced by the actual sentence imposed, should control its classification as a “felony” for purposes of Title 18 U.S. C. App. § 1202(c) (2). The first is more harsh than the treatment of those statu tory crimes for which the punishment does not exceed two years, while the second is, of course, more lenient. As to the correct inference to be drawn, the legislative history is unenlightening. In United States v. Bass, 404 U.S. 336, 344, 92 S.Ct. 515, 520, 30 L.Ed.2d 488 (1971), the Supreme Court characterized Title 18 U.S.C. App. §§ 1201-1203 (Title VII) as “a last-minute Senate amendment to the Omnibus Crime Control and Safe Streets Act. The Amendment was hastily passed, with little discussion, no hearings and no report.” Title VII’s sponsor, Senator Long of Louisiana, conceived the bill to be aimed at actual felons, even though “felony” was defined originally as “any offense punishable by imprisonment for a term exceeding one year.” On May 17, 1968, Senator Long declared that “[w]e do not want the murderers, the burglars, the rapists, the looters, or the arsonists armed to the teeth and walking the streets. We do not want the habitual criminals who have committed all sorts of crimes armed and presenting a hazard to law abiding citizens.” 114 Cong.Rec. 13868 (1968). These thoughts were reiterated on May 23, 1968, Id. at 14773. Senators Dodd, McClellan and Dominick" }, { "docid": "22723493", "title": "", "text": "noted the partial redundancy of §§ 922 (h) and 1202 (a), both as to the conduct they proscribe and the individuals they reach. See United States v. Bass, 404 U. S. 336, 341-343, and n. 9 (1971). However, we find nothing in the language, structure, or legislative history of the Omnibus Act to suggest that because of this overlap, a defendant convicted under § 922 (h) may be imprisoned for no more than the maximum term specified in § 1202 (a). As we read the Act, each substantive statute, in conjunction with its own sentencing provision, operates independently of the other. Section 922 (h), contained in Title IY of the Omnibus Act, prohibits four categories of individuals from receiving “any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.” See n. 2, supra. Persons who violate Title IV are subject to the penalties provided by §924 (a), which authorizes a maximum fine of $5,000 and imprisonment for up to five years. See n. 3, supra. Section 1202 (a), located in Title VII of the Omnibus Act, forbids five categories of individuals from “receiv[ing], possess [ing], or transport [ing] in commerce or affecting commerce . . . any firearm.” This same section authorizes a maximum fine of $10,000 and imprisonment for not more than two years. See n. 4, supra. While §§ 922 and 1202 (a) both prohibit convicted felons such as petitioner from receiving firearms, each Title unambiguously specifies the penalties available to enforce its substantive proscriptions. Section 924 (a) applies without exception to “[w]hoever violates any provision” of Title IV, and § 922 (h) is patently such a provision. See 18 U. S. C., ch. 44; 82 Stat. 226, 234; S. Rep. No. 1097, 90th Cong., 2d Sess., 20-25, 117 (1968). Similarly, because Title VII’s substantive prohibitions and penalties are both enumerated in § 1202, its penalty scheme encompasses only criminal prosecutions brought under that provision. On their face, these statutes thus establish that § 924 (a) alone delimits the appropriate punishment for violations of § 922 (h). That Congress intended to enact two" }, { "docid": "22082223", "title": "", "text": "of a connection with interstate commerce. The Court held, however, that the statute was ambiguous and that, therefore, it must be read to require such a nexus. In so holding, the Court noted the connection between Title VII and Title IV, and observed that although sub sections of the two Titles addressed their prohibitions to some of the same people, each also reached groups not reached by the other. Then followed the dictum in question. The Court went on to state: “While the reach of Title IV itself is a question to be decided finally some other day, the Government has presented here no learning or other evidence indicating that the 1968 Act changed the prior approach to the 'receipt’ offense.” 404 U. S., at 343 n. 10. The Bass dictum was just another observation made in passing as the Court proceeded to consider § 1202 (a). The observation went so far as to intimate that Title IV was to be limited even with respect to a transaction possessing an interstate commerce nexus, a situation that Barrett here concedes is covered by §922 (h). In any event, the Court, by its statement in n. 10 of the Bass opinion, reserved the question of the reach of Title IV for “some other day.” That day is now at hand, with Barrett’s case before us. And it is at hand with the benefit of full briefing and an awareness of the plain language of § 922 (h), of the statute’s position in the structure of the entire Act, and of the legislative aims and purpose. Furthermore, we are not willing to decide the present case on the assumption that Congress, in passing the Gun Control Act 25 years after Tot was decided, had the Court’s casual recital in Tot in mind when it used language identical to that in the 1938 Act. There is one mention of Tot in the debates, 114 Cong. Rec. 21807 (1968), and one mention in the reports, S. Rep. No. 1097, 90th Cong., 2d Sess., 272 (1968) (additional views of Sens. Dirksen, Hruska, Thurmond, and Burdick). These" }, { "docid": "22551005", "title": "", "text": "of Appeals remanded the case to the District Court with instructions to modify the sentences to make them concurrent. The application of the firearms statutes, § 922(h)(1) and § 1202(a)(1), charging a convicted felon with receiving and possessing the same gun, has produced conflicting decisions among the Courts of Appeals. We granted certiorari to resolve this conflict. We reverse. HH f — I This case requires the Court once again to resolve the “partial redundancy” of §§ 922(h) and 1202(a), provisions of Titles IV and VII, respectively, of the Omnibus Crime Control and Safe Streets Act of 1968. E. g., United States v. Batchelder, 442 U. S. 114, 118 (1979); United States v. Bass, 404 U. S. 336, 341-343, and n. 9 (1971). In these two Titles of the Omnibus Act, Congress sought to control the interstate traffic and availability of firearms. Although Congress’ purposes are obvious, courts understandably have had difficulty applying the overlapping provisions of the Act. This case affords an opportunity to address the application of Titles IV and VII to one set of circumstances — where a single act is relied upon to establish a convicted felon’s unlawful receipt and his unlawful possession of the same firearm. A It is clear that a convicted felon may be prosecuted simultaneously for violations of §§ 922(h) and 1202(a) involving the same firearm. This Court has long acknowledged the Government’s broad discretion to conduct criminal prosecutions, including its power to select the charges to be brought in a particular case. E. g., United States v. Goodwin, 457 U. S. 368, 382 (1982); Confiscation Cases, 7 Wall. 454, 457-459 (1869). In Batchelder, this Court recognized that §§ 922(h) and 1202(a) proscribed similar conduct where the defendant is a convicted felon, but concluded that “each substantive statute, in conjunction with its own sentencing provision, operates independently of the other.” 442 U. S., at 118. This Court rejected the argument that § 1202(a) impliedly repealed § 922(h) with respect to acts covered by both provisions, noting that both the statutory language and the legislative history showed that the two provisions were to" }, { "docid": "22551009", "title": "", "text": "that Congress did not intend to subject felons to two convictions; proof of illegal receipt of a firearm necessarily includes proof of illegal possession of that weapon. “[W]hen received, a firearm is necessarily possessed.” United States v. Martin, 732 F. 2d 591, 592 (CA7 1984). In other words, Congress seems clearly to have recognized that a felon who receives a firearm must also possess it, and thus had no intention of subjecting that person to two convictions for the same criminal act. The legislative history of §§ 922(h) and 1202(a) supports this reading of congressional intent. Titles IV and VII, enacted together as components of the Omnibus Act, disclose “Congress’ worry about the easy availability of firearms, especially to those persons who pose a threat to community peace.” Lewis v. United States, 445 U. S. 55, 66 (1980). Accordingly, “[e]ach [Title] seeks to keep a firearm from ‘any person . . . who has been convicted’ of a felony . . . .” Id., at 64. Section 922(h), the receipt statute, is part of a “‘carefully constructed package of gun control legislation,’ which had been in existence for many years.” Batchelder, 442 U. S., at 120 (quoting Scarborough v. United States, 431 U. S. 563, 570 (1977)). One principal purpose of Title IV was to make “it possible to keep firearms out of the hands of those not legally entitled to possess them because of age, criminal background, or incompetency . . . S. Rep. No. 1097, 90th Cong., 2d Sess., 28 (1968). Section 1202(a), on the other hand, was a “last-minute Senate amendment” to the Omnibus Act, “hastily passed, with little discussion, no hearings, and no report.” United States v. Bass, 404 U. S., at 344 (footnote omitted). The circumstances surrounding consideration of Title VII and the haste in which it was enacted may well explain why it does not dovetail neatly with the prohibition that was, at the time of its passage, already contained in Title IV. Title VII was enacted as supplementary legislation; Title VII filled the gaps in and expanded the coverage of Title IV. In" }, { "docid": "22723494", "title": "", "text": "Title VII of the Omnibus Act, forbids five categories of individuals from “receiv[ing], possess [ing], or transport [ing] in commerce or affecting commerce . . . any firearm.” This same section authorizes a maximum fine of $10,000 and imprisonment for not more than two years. See n. 4, supra. While §§ 922 and 1202 (a) both prohibit convicted felons such as petitioner from receiving firearms, each Title unambiguously specifies the penalties available to enforce its substantive proscriptions. Section 924 (a) applies without exception to “[w]hoever violates any provision” of Title IV, and § 922 (h) is patently such a provision. See 18 U. S. C., ch. 44; 82 Stat. 226, 234; S. Rep. No. 1097, 90th Cong., 2d Sess., 20-25, 117 (1968). Similarly, because Title VII’s substantive prohibitions and penalties are both enumerated in § 1202, its penalty scheme encompasses only criminal prosecutions brought under that provision. On their face, these statutes thus establish that § 924 (a) alone delimits the appropriate punishment for violations of § 922 (h). That Congress intended to enact two independent gun control statutes, each fully enforceable on its own terms, is confirmed by the legislative history of the Omnibus Act. Section 922 (h) derived from § 2 (f) of the Federal Firearms Act of 1938, 52 Stat. 1251, and § 5 of that Act, 52 Stat. 1252, authorized the same maximum prison term as § 924 (a). Title IV of the Omnibus Act merely recodified with some modification this “carefully constructed package of gun control legislation,” which had been in existence for many years. Scarborough v. United States, 431 U. S. 563, 570 (1977); see United States v. Bass, supra, at 343 n. 10; 15 U. S. C. §§ 902, 905 (1964 ed.). By contrast, Title VII was a “last-minute” floor amendment, “hastily passed, with little discussion, no hearings, and no report.” United States v. Bass, supra, at 344, and n. 11; see Scarborough v. United States, supra, at 569-570, and n. 9. And the meager legislative debates involving that amendment demonstrate no intention to alter the terms of Title IV. Immediately before the" }, { "docid": "22719882", "title": "", "text": "purpose of the statute to apply an interstate commerce requirement to the “transports” offense alone. In short, the Government has no convincing explanation for the inclusion of the clause “in commerce or affecting commerce” if that phrase only applies to the word “transports.” It is far more likely that the phrase was meant to apply to “possesses” and “receives” as well as “transports.” As the court below noted, the inclusion of such a phrase “mirror [s] the approach to federal criminal jurisdiction reflected in many other federal statutes.” Nevertheless, the Government argues that its reading is to be preferred because the defendant’s narrower interpretation would make Title YII redundant with Title IV of the same Act. Title IV, inter alia, makes it a crime for four categories of people — including those convicted of a crime punishable for a term exceeding one year — “to ship or transport any firearm or ammunition in interstate or foreign commerce . . . [or] to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.” 18 U. S. C. §§ 922 (g) and (h). As Senator Long, the sponsor of Title VII, represented to Senator Dodd, the sponsor of Title IV, Title VII indeed does complement Title IV. 114 Cong. Rec. 14774; see also 114 Cong. Rec. 16286. Respondent’s reading of Title VII is fully consistent with this view. First, although subsections of the two Titles do address their prohibitions to some of the same people, each statute also reaches substantial groups of people not reached by the other. Secondly, Title VII complements Title IV by punishing a broader class of behavior. Even under respondent’s view, a Title VII offense is made out if the firearm was possessed or received “in commerce or affecting commerce”; however, Title IV apparently does not reach possessions or intrastate transactions at all, even those with an interstate commerce nexus, but is limited to the sending or receiving of firearms as part of an interstate transportation. In addition, whatever reading is adopted, Title VII and Title IV are, in part, redundant. The" }, { "docid": "16786968", "title": "", "text": "Scarborough, the Court looked more closely at Title VII’s; legislative history, quoting, among other' things, sponsoring Senator Long’s remarks: I have prepared an amendment ... simply setting forth the fact that anybody who has been convicted of a felony ... is not permitted to possess a firearm. It places the burden and the punishment on the kind of people who have no business possessing firearms in the event they come into possession of them.... 114 Cong.Rec. 13868-69 (1968), quoted in Scarborough, 431 U.S.’ at 572-73, 97 S.Ct. at 1967-68. The Scarborough court then rejected the defendant’s contentions that Congress did not intend to punish possession of a firearm unless the gun had moved in interstate commerce at or near the time of possession. It held instead that a felon who possessed a gun violated the statute as long as the gun previously had travelled in interstate commerce. Such an interpretation “captures the essence of Congress’ intent, striking at the possession of weapons by people ‘who have no business pos sessing [them].’ ” Scarborough, 431 U.S. at 577, 97 S.Ct. at 1970 (citation omitted). Of course, Scarborough considered Title VII, while the statute before us is a later statute. But it is a successor statute to Title VII. The House Judiciary Committee explicitly said that § 922(g), the section here at issue: combines in one section ... all of the offenses related to sale of firearms to unqualified persons and offenses of receipt, possession and transport of firearms by unqualified persons (or their employees) now divided between Title I of the Gun Control Act (18 U.S.C. 922(d), (g), and (h)) and Title VII of the Omnibus Crime Control and Safe Streets Act (19 U.S.C. 1202(a) and (b)).... H.R.Rep. No. 495 at 23 (emphasis in original), reprinted in 1986 U.S.Code Cong. & Ad.News at 1349. An examination of the predecessor statute shows that the “transport” and “receipt” language (not here at issue) likely came from Title IV of the Omnibus Crime Control and Safe Streets Act of 1968 (“Title IV”), Pub.L. No. 90-351, Title IV, § 902, 82 Stat. 197, 228, amended" }, { "docid": "11811918", "title": "", "text": "Court found “proof of illegal receipt of a firearm necessarily includes proof of illegal possession of that weapon.” Id. 105 S.Ct. at 1672 (emphasis in original). Given this unavoidable overlap in the statutes, the Court concluded that Congress did not intend these provisions to proscribe separate offenses. Finding nothing in the legislative history to rebut this determination, the Court concluded that when a single act establishes the receipt and the possession of a firearm, the double jeopardy clause bars defendant’s conviction under both sections 922(h)(1) and 1202(a)(1) of the Omnibus Crime Control Act. Id. at 1674. We find Ball clearly distinguishable. The holding in Ball is specific to the sections of the Omnibus Crime Control Act in issue in that case. As discussed above, the Blockburger test yields a different result when applied to sections 922(i) and 1202(a)(1) of the Act. Proof of a section 922(i) violation does not necessarily constitute proof of a section 1202(a) violation. Therefore, conviction on separate charges in a multicount indictment charging violation of these sections of the Act does not violate the double jeopardy clause. Our decision is supported by the legislative history of Title VII of the Omnibus Crime Control Act. The legislative history shows that Congress intended Title VII of the Act to complement Title IV of the Act. See United States v. Batchelder, 442 U.S. 114, 120, 99 S.Ct. 2198, 2202, 60 L.Ed.2d 755 (1979); Scarborough v. United States, 431 U.S. 563, 573, 97 S.Ct. 1963, 1968, 52 L.Ed.2d 582 (1977). The Court, in Scarborough v. United States, found that the essence of Congress’ intent under section 1202(a), and the intent stressed in the legislative history, was to punish the possession of weapons by people “who have no business possessing [them].” Id. at 577, 97 S.Ct. at 1970 (quoting 114 Cong. Rec. 13869 (1968)). The focus on separately punishing possession is made clear in the following statement by Senator Long in introducing the amendment: Of all the gun bills that have been suggested, debated, discussed and considered, none except this Title VII attempts to bar possession of a firearm from persons" }, { "docid": "22547141", "title": "", "text": "114 Cong. Rec. 14773 (1968). See also id., at 13868, 14774. Inasmuch as Senator Long was the sponsor and floor manager of the bill, his statements are entitled to weight. Simpson v. United States, 435 U. S. 6, 13 (1978). It is not without significance, furthermore, that Title VII, as well as Title IV of the Omnibus Act, was enacted in response to the precipitous rise in political assassinations, riots, and other violent crimes involving firearms, that occurred in this country in the 1960’s. See, e. g., S. Rep. No. 1097, 90th Cong., 2d Sess., 76-78 (1968); H. R. Rep. No. 1577, 90th Cong., 2d Sess., 7 (1968); S. Rep. No. 1501, 90th Cong., 2d Sess., 22-23 (1968). This Court, accordingly, has observed: “The legislative history [of Title VII] in its entirety, while brief, further supports the view that Congress sought to rule broadly — to keep guns out of the hands of those who have demonstrated that ‘they may not be trusted to possess a firearm without becoming a threat to society.’ ” Scarborough v. United States, 431 U. S., at 572. The legislative history, therefore, affords no basis for a loophole, by way of a collateral constitutional challenge, to the broad statutory scheme enacted by Congress. Section 1202 (a) was a sweeping prophylaxis, in simple terms, against misuse of firearms. There is no indication of any intent to require the Government to prove the validity of the predicate conviction. The very structure of the Omnibus Act’s Title IV, enacted simultaneously with Title VII, reinforces this conclusion. Each Title prohibits categories of presumptively dangerous persons from transporting or receiving firearms. See 18 U. S. C. §§ 922 (g) and (h). Actually, with regard to the statutory question at issue here, we detect little significant difference between Title IV and Title VII. Each seeks to keep a firearm away from “any person . . . who has been convicted” of a felony, although the definition of “felony” differs somewhat in the respective statutes. But to limit the scope of §§ 922 (g)(1) and (h)(1) to a validly convicted felon would" }, { "docid": "17387511", "title": "", "text": "n. 5. The Court interpreted the statute as “imposing a civil firearms disability, enforceable by a criminal sanction,” on those whom Congress viewed as potentially dangerous. 445 U.S. at 67, 100 S.Ct. at 922. Someone convicted of a felony must clear his status before obtaining a firearm. 445 U.S. at 64-65, 100 S.Ct. at 920-921. In Dickerson v. New Banner Institute, 460 U.S. 103, 103 S.Ct. 986, 74 L.Ed.2d 845 (1983), a case arising under 18 U.S.C. §§ 922(g) and (h) rather than 18 U.S.C.App. § 1202, the Court held that a plea of guilty which was never reduced to judgment and was eventually expunged under state law was nevertheless a firearm disability. Under the Iowa statutes then in effect, a trial judge could, upon a plea of guilty and with consent of the defendant, defer judgment and place a defendant on probation. Upon fulfillment of the terms of probation, the defendant would be discharged without entry of judgment. Here, as in Dickerson, there was a guilty plea to the July 10-11 burglary charges, which Balascsak has never sought to withdraw. The Court in Dickerson relied heavily on Lewis, noting that the two gun control statutes are similar, partially overlapping, and indeed that it “dectect[ed] little significant difference between the two.” 460 U.S. at 111, 103 S.Ct. at 991 (quoting Lewis). Acknowledging that sometimes the term “convicted” is limited to persons against whom a formal judgment has been entered, it rejected such an interpretation since the congressional intent “in enacting §§ 922(g) and (h) and § 1202 was to keep firearms out of the hands of presumptively risky people,” emphasizing that sections 922(g) and (h) apply not only to those convicted but also to those merely under indictment. 460 U.S. at 112 n. 6, 103 S.Ct. at 991 n. 6. It held that where a defendant pleads guilty, the plea is noted by the court, and the court sentences him to probation, he has been “convicted” within the meaning of section 922(g) and (h). 460 U.S. at 114, 103 S.Ct. at 992. The Court quoted with approval the statement that" }, { "docid": "11811920", "title": "", "text": "whose prior behaviors have established their violent tendencies * *. * * * Under Title VII, every citizen could possess a gun until commission of his first felony. Upon his conviction, however, Title VII would deny every assassin, murderer, thief and burglar of [sic] the right to possess a firearm in the future * * *. Scarborough, 431 U.S. at 573, 97 S.Ct. at 1968 (quoting 114 Cong. Rec. 13868, 14773 (statement of Senator Long)). Section 1202(a)(1), therefore, describes categories of persons for whom it is an offense to possess any weapon which has been in or affected commerce. Section 922 does not separately punish possession of a weapon by a convicted felon, and 922(i) punishes only the transportation of a stolen weapon. Thus, despite the broad areas of overlap between Titles IV and VII of the Act, this is one area in which section 1202(a)(1) clearly complements section 922. We thus conclude that Congress intended to separately punish possession of a weapon by a felon, that this purpose is distinct from that underlying section 922(i), and that a conviction in one proceeding under both sections does not violate the double jeopardy clause. Bass, additionally, challenges the prosecutor’s decision to proceed under section 922(i), rather than under 922(g) or 922(h), arguing that the government, by carefully selecting the provision under which to proceed, was able to seek two separate convictions where only one would otherwise be appropriate. In United States v. Batchelder, 442 U.S. 114, 99 S.Ct. 2198, 60 L.Ed.2d 755 (1979), the Supreme Court stated “[W]hen an Act violates more than one criminal statute, the government may prosecute under either so long as it does not discriminate against any class of defendants.” Id. at 123-24, 99 S.Ct. at 2203-04. In Ball the Supreme Court clarified that Batchelder reaffirms the government’s discretion to charge under one statute rather than another or to proceed under several where an act violates more than one criminal statute. Ball, 105 S.Ct. at 1617 n. 7. Bass does not allege discriminatory prosecution, and the record is devoid of any such inference. This contention is, therefore," }, { "docid": "14026058", "title": "", "text": "Dictionary 763 (8th ed.2004). . Id. at 1574. . Merriam Webster’s Collegiate Dictionary 577 (10th ed. 1993). . Id. at 1294. . This definition is consistent with our description of an illegal alien as one who is \"in the United States without authorization.” United States v. Igbatayo, 764 F.2d 1039, 1040 (5th Cir.1985). In Igbatayo, we held that an alien who entered the United States on student non-immigrant status and subsequently failed to maintain his status as a student as required by his visa was \"in the same position legally as the alien who wades across the Rio Grande or otherwise enters the United States without permission.” Id. . 18 U.S.C. § 922(g)(l)-(4), (6)-(9). . This section was added by Congress in 1998. See Omnibus Consolidated and Emergency Supplemental Appropriations Act, 1999, Pub.L. No. 105-277, § 101(b), 112 Stat. 2681 (1998). . See 18 U.S.C. § 922(g)(5)(B), (y)(3). . Pub.L. No. 90-351, 82 Stat. 197 (1968). . Pub.L. No. 90-618, 82 Stat. 1231 (1968). . United States v. Bass, 404 U.S. 336, 344 n. 11, 92 S.Ct. 515, 30 L.Ed.2d 488 (1971). . Id. at 344, 92 S.Ct. 515. . 18 U.S.C.App. § 1202(a)(5), repealed by Firearm Owner’s Protection Act, Pub.L. No. 99-308, 100 Stat. 449 (May 19, 1986). . See Lewis v. United States, 445 U.S. 55, 63, 100 S.Ct. 915, 63 L.Ed.2d 198 (1980) (“It is not without significance, furthermore, that Title VII, as well Title IV of the Omnibus Act, was enacted in response to the precipitous rise in political assassinations, riots, and other violent crimes involving firearms, that occurred in this country in the 1960’s.’’); Bass, 404 U.S. at 345, 92 S.Ct. 515 (\"On the Senate floor, Senator Long, who introduced s 1202, described various evils that prompted his statute ... [including] assassinations of public figures and threats to the operation of businesses significant enough in the aggregate to affect commerce.”). . 114 Cong. Rec. 14,773-74 (1968) (\"[U]n-der Title VII, every citizen could possess a gun until the commission of his first felony. Upon his conviction, however, Title VII would deny every assassin, murderer, thief and" }, { "docid": "7019844", "title": "", "text": "of a felony. See Lewis, 445 U.S. at 60-61, 100 S.Ct. at 918-19. That the disabling conviction was unconstitutionally obtained did not alter the fact that the defendant had been convicted of a felony at the time he possessed the firearm. See id. Turning from the language of the statute itself, the Court concluded that “[o]ther provisions ... demonstrate^] and reinforce[d] its” reading of § 1202(a)(1). Id. at 61, 100 S.Ct. at 919. Specifically, the Court found persuasive that 18 U.S.C. app. § 1203 (Supp. IV 1969) enumerated certain exceptions to § 1202(a)(1), but did not include an exception for one “whose outstanding felony conviction ultimately might turn out to be invalid for any reason.” Id. at 62, 100 S.Ct. at 919. Thus, the Court ruled, § 1202(a)(1) stood “in contrast with other federal statutes that explicitly permit a defendant to challenge, by way of defense, the validity or constitutionality of the predicate felony.” Id. The Court also determined that the structure of the Omnibus Crime Control and Safe Streets Act of 1968, which enacted § 1202, supported its reading of the statute. See id. at 63-64, 100 S.Ct. at 919-20. The Court noted that § 1202 — which was a portion of Title VII of the Act — was enacted contemporaneously with § 922(g) and (h) — which were in Title IV of the Act — and explained that these provisions created categories of presumptively dangerous persons who were prohibited from possessing firearms: Actually, with regard to the statutory question at issue here, we detect little significant difference between Title IV and Title VTI. Each seeks to keep a firearm away from “any person ... who has been convicted” of a felony, although the definition of “felony” differs somewhat in the respective statutes. But to limit the scope of §§ 922(g)(1) and (h)(1) to a validly convicted felon would be at odds with the statutory scheme as a whole. Those sections impose a disability not only on a convicted felon but also on a person under a felony indictment, even if that person subsequently is acquitted of the felony" }, { "docid": "22551020", "title": "", "text": "22 (1968); 114 Cong. Rec. 21784 (1968) (remarks of Rep. Celler). As the Court observed in Barrett v. United States, 423 U. S., at 220, the Gun Control Act “reflects a similar concern with keeping firearms out of the hands of categories of potentially irresponsible persons, including convicted felons.” Section 922(h) stemmed from §2(f) of the Federal Firearms Act of 1988, which had made it unlawful for “any person who has been convicted of a crime of violence or is a fugutive [sic] from justice to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce . . .,” 52 Stat. 1251. Section 922(h), although maintaining § 2(f )’s operative phrase, expanded the categories of persons prohibited from receiving firearms. See Appendix to this opinion. Senator Tydings, for example, explained that “Title VII. . . is . . . primarily designed to restrict access to handguns to criminals, juveniles, and fugitives.” 114 Cong. Rec. 13639 (1968). See also id., at 13868, 14773 (remarks of Sen. Long). For a concise review of Title VII’s surprisingly swift passage through the Congress, see Scarborough v. United States, 431 U. S. 563, 573-574 (1977); United States v. Bass, 404 U. S. 336, 344, n. 11 (1971). Each statute reaches substantial groups of people not covered by the other. Section 922(h), for example, covers persons who are under indictment for a felony, who are fugitives, and who are narcotics offenders. Section 1202(a), on the other hand, covers persons dishonorably discharged from the service, illegal aliens, and persons who have renounced their citizenship. Senator Long explained that the assortment of persons brought within the ambit of § 1202(a) reflected those responsible for the rash of assassinations and publicized murders in “recent history,” which included the deaths of President Kennedy and Martin Luther King, Jr., as well as the murders of several civil rights workers in the South. 114 Cong. Rec. 14773 (1968). Only two groups — convicted felons and adjudicated mental incompetents — fall within the overlap between the two provisions. There is no suggestion in the legislative history that" } ]

[ { "docid": "9458420", "title": "", "text": "this case, the substantial evidence standard is most pertinent. See Boilermakers Local No. 374 v. NLRB, 852 F.2d 1353, 1358 (D.C.Cir.1988) (reviewing Board’s duty of fair representation decision under substantial evidence standard); see also Le’Mon, 952 F.2d at 1205-06 (reviewing for substantial evidence where Board found no breach of duty); Tenorio v. NLRB, 680 F.2d 598, 601 (9th Cir.1982) (reviewing for substantial evidence where Board found no breach of duty). 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.’ ” Micro Pacific Dev. Inc. v. NLRB, 178 F.3d 1325, 1329 (D.C.Cir.1999) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938)). This court will uphold the Board’s decision upon substantial evidence even if we would reach a different result upon de novo review. See Perdue Farms, Inc., Cookin’ Good Div. v. NLRB, 144 F.3d 830, 834-35 (D.C.Cir.1998). In undertaking substantial evidence review, we consider not just the evidence that supports the Board’s decision, but any evidence in the record that “fairly detracts from its weight.” Tenorio, 680 F.2d at 601. The posture of the instant case calls for singular deference, as petitioners must show that there was a lack of substantial evidence to support the Board’s finding that the Union’s actions fell within a broad range of reasonableness. The significant nature of the deference due to the Board in DFR cases is cogently explained by Chief Judge Posner in International Ass’n of Machinists & Aerospace Workers v. NLRB, 133 F.3d 1012, 1016 (7th Cir.), cert. denied sub nom. Strang v. NLRB, 525 U.S. 813, 119 S.Ct. 47, 142 L.Ed.2d 36 (1998). Chief Judge Posner’s opinion aptly observes: All the details necessary to make the rule of Beck operational were left to the Board, subject to the very light review authorized by Chevron. It is hard to think of a task more suitable for an administrative agency that specializes in labor relations, and less suitable for a court of general jurisdiction, than crafting the rules for translating the" } ]

[ { "docid": "16480783", "title": "", "text": "the operating rules that a particular hiring hall must follow. See id. at *4. STANDARD OF REVIEW We will uphold a decision by the Board if its findings of fact are supported by substantial evidence and if it correctly applied the law. See NLRB v. Calkins, 187 F.3d 1080, 1085 (9th Cir.1999). Substantial evidence means “more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Todd Pac. Shipyards Corp. v. Dir., Office of Workers Comp. Programs, 914 F.2d 1317, 1320 (9th Cir.1990) (internal quotation marks omitted). We defer to the Board’s interpretation and application of the National Labor Relations Act, as long as the Board’s interpretation is “reasonable and not precluded by Supreme Court precedent.” NLRB v. Advanced Stretchforming Int’l, Inc., 233 F.3d 1176, 1180 (9th Cir.2000) (internal quotation marks omitted). However, where the Board rests its decision on a misinterpretation of Supreme Court precedent, we need not give the Board’s interpretation any particular deference. See Jacoby v. NLRB, 233 F.3d 611, 614 (D.C.Cir.2000) (“Chevron [U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984)] does not help an agency that rests its decision on a misinterpretation of Supreme Court precedent, as the Board did here.”). DISCUSSION I. A. The Supreme Court has long recognized that a union has a statutory duty of fair representation under the NLRA. See Vaca v. Sipes, 386 U.S. 171, 177, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967). Although the Act does not explicitly articulate this duty, the Court has held that the duty is implied from “the grant under § 9(a) of the NLRA, 29 U.S.C. § 159(a) (1982 ed.), of the union’s exclusive power to represent all employees in a particular bargaining unit.” Breininger v. Sheet Metal Workers Int’l Ass’n Local Union No. 6, 493 U.S. 67, 87, 110 S.Ct. 424, 107 L.Ed.2d 388 (1989). In Breininger, the Court reasoned that this authority to represent all employees necessarily included the obligation to do so in a non-discriminatory manner. See id. at 79, 87-88," }, { "docid": "24241", "title": "", "text": "order face an uphill fight, for two reasons. The first is that under the doctrine of Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), the Board has broad latitude in interpreting nondirective statutory language. Holly Farms Corp. v. NLRB, 517 U.S. 392, 397-99, 116 S.Ct. 1396, 1401, 134 L.Ed.2d 593 (1996); NLRB v. United Food & Commercial Workers Union, 484 U.S. 112, 123, 108 S.Ct. 413, 420-21, 98 L.Ed.2d 429 (1987); Electromation, Inc. v. NLRB, 35 F.3d 1148, 1156 (7th Cir.1994); Finerty v. NLRB, 113 F.3d 1288, 1291 (D.C.Cir.1997). Less directive than section 8(a)(3), so far as agency fees is concerned at any rate, it is scarcely possible to get. The section says nothing about agency fees and so provides no guidance to the formulation of rules governing them. All we have to go on is the Court’s holding in Beck that the union-shop proviso is intended to prevent workers in a bargaining unit from taking a free ride on the union’s efforts in their behalf (the union being required to represent all the members of the unit equally, whether or not they are union members). The free ride is prevented by making the nonmembers pay their aliquot share of the union’s cost of representing the workers in the unit — but no more. All the details necessary to make the rule of Beck operational were left to the Board, subject to the very light review authorized by Chevron. It is hard to think of a task more suitable for an administrative agency that specializes in labor relations, and less suitable for a court of general jurisdiction, than crafting the rules for translating the generalities of the Beck decision (more precisely, of the statute as authoritatively construed in Beck) into a workable system for determining and collecting agency fees. The posture of this case, moreover, makes judicial review necessarily abstract, and as a result limited in depth. In the wake of Beck, the machinists’ union adopted the procedures that were before the Board in this case. The Board evaluated" }, { "docid": "13959", "title": "", "text": "of the Board’s orders is DENIED. The petitions for review are GRANTED. The cases are REMANDED to the Board for action in accordance with this opinion. WARDLAW, Circuit Judge, concurring: I agree with the majority that we are bound by the Supreme Court’s decisions in Communications Workers of America v. Beck, 487 U.S. 735, 108 S.Ct. 2641, 101 L.Ed.2d 634 (1988), and Ellis v. Brotherhood of Railway, Airline, and Steamship Clerks, 466 U.S. 435, 104 S.Ct. 1883, 80 L.Ed.2d 428 (1984), to reverse the decision of the Board. Neither the Board nor we can alter or even meaningfully distinguish Beck’s twin holdings that (i) NLRA § 8(a)(3) and § 2, Eleventh of the RLA are “statutory equivalents,” which (ii) preclude charging organizing expenses to objecting nonmembers. This rule would make sense in an industry and a competitive environment where no benefit inured to the nonmember objectors from uniform wage and benefit standards. But here, after reviewing academic research, empirical data and specific evidence as to the direct, positive relationship between the extent of unionization of employees and negotiated wage rates in the retail food industry, the Board concluded otherwise. It is troubling that Beck precludes us from giving the deference to the fact-finding and expertise of the agency charged with administering the labor laws that it would otherwise be accorded under Chevron, U.S.A. v. NRDC, 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). As Judge Posner, writing for the Seventh Circuit, has noted: It is hard to think of a task more suitable for an administrative agency that specializes in labor relations, and less suitable for a court of general jurisdiction, than crafting the rules for translating the generalities of the Beck decision (more precisely, of the statute as authoritatively construed in Beck) into a workable system for determining and collecting agency fees. Int’l Ass’n of Machinists & Aerospace Workers v. NLRB, 133 F.3d 1012, 1015 (7th Cir.1998). I respectfully submit that a case-by-case, industry specific approach, see Lehnert v. Ferris Faculty Ass’n, 500 U.S. 507, 519, 111 S.Ct. 1950, 114 L.Ed.2d 572 (1991), which applies guidelines, not" }, { "docid": "11699337", "title": "", "text": "arbitrary and capricious.” La. Pub. Serv. Comm’n v. Fed. Energy Regulatory Comm’n, 184 F.3d 892, 897 (D.C.Cir.1999) (citing Motor Vehicle Mfrs. Ass’n, 463 U.S. at 57, 103 S.Ct. 2856) (“[a]n agency’s view of what is in the public interest may change, either with or without a change in circumstances. But an agency changing its course must supply a reasoned analysis”). “ ‘[T]he core concern underlying the prohibition of arbitrary and capricious agency action’ is that agency ‘ad hocery’ is impermissible.” Ramaprakash v. Fed. Aviation Admin. & Nat’l Transp. Safety Bd., 346 F.3d 1121, 1130 (D.C.Cir.2003) (quoting Pacific N.W. Newspaper Guild, Local 82 v. Nat’l Labor Relations Bd., 877 F.2d 998, 1003 (D.C.Cir.1989)). See also ANR Pipeline Co. v. Fed. Energy Regulatory Comm’n, 71 F.3d 897, 901 (D.C.Cir.1995) (“Where an agency departs from established precedent without a reasoned explanation, its decision will be vacated as arbitrary and capricious.”). Relying on this guidance, lower courts have repeatedly inquired into whether an agency has adequately explained a change in its position in light of the obligations imposed by NEPA. See, e.g., Greater Yellowstone Coal. v. Kempthorne, 577 F.Supp.2d 183, 189 (D.D.C.2008) (“[r]eview of an agency action is more demanding where the challenged decision stems from an administrative about-face”); Fund for Animals v. Norton, 294 F.Supp.2d 92, 107 (D.D.C.2003) (invalidating a rule permitting 950 snowmobiles in national parks each day because NPS failed to adequately distinguish its previous position that “snowmobiling so adversely impacted the wildlife and resources of the Parks that all snowmobile use must be halted”). Here, the Court finds that the DOI failed to adequately distinguish its previous position that firearm restrictions were necessary to protect against environmental harms involving “public safety” and “pro tection of natural resources.” Based on its Decision Memorandum, the DOI appears to have been singularly motivated to lift the restrictions that prevented persons from carrying concealed, loaded, and operable firearms in national parks and wildlife refuges based on considerations of federalism: [w]e believe that in managing parks and refuges we should, as appropriate, make every effort to give the greatest respect to the democratic judgments of" }, { "docid": "22223848", "title": "", "text": "breached its duty of fair representation by failing to adequately notify petitioner of her rights under Beck and General Motors. The Board has held (and SAG concedes, see Brief for Respondent Screen Actors Guild 35-36) that unions have an obligation to notify employees of their Beck rights. See United Paperworkers Int'l Union (Weyerhaeuser Paper), 320 N. L. R. B. 349 (1995), rev’d on other grounds sub nom. Buzenius v. NLRB, supra; California Saw and Knife Works, 320 N. L. R. B. 224 (1995), enf’d sub nom. International Association of Machinists & Aerospace Workers v. NLRB, 133 F. 3d 1012 (CA7), cert. denied sub nom. Strang v. NLRB, post, p. 813. See also Nielsen v. International Assn. of Machinists & Aerospace Workers, supra, at 1114-1115 (recognizing such a duty on part of union); Abrams v. Communications Workers of America, 59 F. 3d 1373, 1378-1380 (CADC 1995) (same). The Board is currently in the process of defining the content of the notification right to give guidance to unions about what they must do to notify employees about their rights under Beck and General Motors. California Saw and Knife Works, supra; United Paperworkers Int’l Union, supra. Petitioner’s suit alleges that SAG failed to notify her of her Beck and General Motors rights, but this claim, too, is not before us. The Court of Appeals remanded this claim to the District Court for reconsideration. 124 F. 3d, at 1042-1043. With this background, the question we are resolving comes into sharper focus. There is no disagreement about the substance of the union’s obligations: If a union negotiates a union security clause, it must notify workers that they may satisfy the membership requirement by paying fees to support the union’s representational activities, and it must enforce the clause in conformity with this notification. The only question presented by this ease is whether a union breaches the duty of fair representation merely by negotiating a union security clause that uses the statutory language without expressly explaining, in the agreement, the refinements introduced by our decisions in General Motors and Beck To rephrase the question slightly, petitioner’s claim" }, { "docid": "22223847", "title": "", "text": "standards for defining the primary jurisdiction of the NLRB. 523 U. S. 1019 (1998). >-H h-1 A This case presents a narrow question: Does a union breach its duty of fair representation merely by negotiating a union security clause that tracks the language of § 8(a)(3)? To understand why this is a narrow question, it is helpful to keep in mind what issues we are not resolving in this ease. First, we are not deciding whether SAG illegally enforced the union security clause to require petitioner to become a member of the union or to require her to pay dues for noneollective bargaining activities. Petitioner’s complaint includes a claim that the union breached the duty of fair representation by enforcing the clause illegally, but that claim is not before us. The Court of Appeals held that there were factual disputes that precluded the grant of summary judgment on this issue, and so this claim was remanded to the District Court for further proceedings. 124 F. 3d, at 1041-1042. Second, we are not deciding whether SAG breached its duty of fair representation by failing to adequately notify petitioner of her rights under Beck and General Motors. The Board has held (and SAG concedes, see Brief for Respondent Screen Actors Guild 35-36) that unions have an obligation to notify employees of their Beck rights. See United Paperworkers Int'l Union (Weyerhaeuser Paper), 320 N. L. R. B. 349 (1995), rev’d on other grounds sub nom. Buzenius v. NLRB, supra; California Saw and Knife Works, 320 N. L. R. B. 224 (1995), enf’d sub nom. International Association of Machinists & Aerospace Workers v. NLRB, 133 F. 3d 1012 (CA7), cert. denied sub nom. Strang v. NLRB, post, p. 813. See also Nielsen v. International Assn. of Machinists & Aerospace Workers, supra, at 1114-1115 (recognizing such a duty on part of union); Abrams v. Communications Workers of America, 59 F. 3d 1373, 1378-1380 (CADC 1995) (same). The Board is currently in the process of defining the content of the notification right to give guidance to unions about what they must do to notify employees about" }, { "docid": "20210117", "title": "", "text": "77 (D.C.Cir.2006). Thus, even though arbitrary and capricious review is fundamentally deferential — especially with respect to “matters relating to [an agency’s] areas of technical expertise,” Tripoli, 437 F.3d at 77 — “no deference” is owed to an agency action that is based on an agency’s “purported expertise” where the agency’s explanation for its action “lacks any coherence,” id. As we explained in Tripoli, [t]his court routinely defers to administrative agencies on matters relating to their areas of technical expertise. We do not, however, simply accept whatever conclusion an agency proffers merely because the conclusion reflects the agency’s judgment. In order to survive judicial review in a case arising under § 7006(2)(A) [sic], an agency action must be supported by “reasoned decisionmaking.” Allentovm Mack Sales & Serv., Inc. v. NLRB, 522 U.S. 359, 374, 118 S.Ct. 818, 139 L.Ed.2d 797 (1998) (quoting Motor Vehicle Mfrs. Ass’n of the United States, Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 52, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983)). “Not only must an agency’s decreed result be within the scope of its lawful authority, but the process by which it reaches that result must be logical and rational. Courts enforce this principle with regularity when they set aside agency regulations which, though well within the agencies’ scope of authority, are not supported by the reasons that the agencies adduce.” Id. 437 F.3d at 77 (parallel citations omitted). The requirement of reasoned decisionmaking indisputably applies in situations involving judicial review of agency adjudicatory actions. See, e.g., Allentown Mack Sales & Serv., Inc., 522 U.S. at 375, 118 S.Ct. 818 (noting that “[r]easoned decisionmaking ... promotes sound results, and unreasoned decisionmaking the opposite”). We will not uphold an agency adjudication where the agency’s “judgment ... was neither adequately explained in its decision nor supported by agency precedent.” Siegel, 592 F.3d at 164; see also Cobum, 679 F.3d at 926 (holding that because the agency decisions were “largely incomprehensible,” they were “unworthy of any deference”); Morall v. Drug Enforcement Admin., 412 F.3d 165, 167 (D.C.Cir.2005) (vacating an agency decision due to “a lapse" }, { "docid": "6255006", "title": "", "text": "different procedures for the interpretation of each Act. Under the NLRA, primary jurisdiction over its interpretation lies with the NLRB, but under the RLA, exclusive jurisdiction lies, as with many statutes, with the courts. This difference was explicitly recognized by the Supreme Court in Beck, in which it asserted that “[u]nlike the NLRA, ... the RLA establishes no agency charged with administering its provisions, and instead leaves it to the courts to determine the validity of activities challenged under the Act.” 487 U.S. at 743. This difference alone militates strongly against the automatic application of factual findings made by courts regarding the “germaneness” of various union activities in the nationwide transportation industry to cases involving run-of-the-mill local commercial businesses covered by the NLRA. The practical effect of the nonmembers’ argument would be to deprive the NLRB of its jurisdiction to make factual determinations regarding what is germane to collective bargaining in industries that have entirely different bargaining histories and procedures than the railroad industry. Adjudicating issues relating to the manner in which a union may properly operate is a major function of the NLRB, and the expertise of the Board in factfinding and the operation of labor policy is substantial. Moreover, the specific question presented in this case — whether “organizing” is “germane to collective bargaining” — is a complex and difficult one for the layman, member of the judiciary or not. The answer requires a sophisticated understanding of labor relations and the collective bargaining process. As the Seventh Circuit noted in International Association of Machinists & Aerospace Workers v. NLRB, 133 F.3d 1012 (7th Cir.1998), cert. denied, 525 U.S. 813, 119 S.Ct. 47, 142 L.Ed.2d 36 (1998), [i]t is hard to think of a task more suitable for an administrative agency that specializes in labor relations, and less suitable for a court of general jurisdiction, than crafting the rules for translating the generalities of ... the statute as authoritatively construed in Beck ... into a workable system for determining and collecting agency fees. 133 F.3d at 1015. The second reason we read the statutory equivalence statements as not requiring" }, { "docid": "11699336", "title": "", "text": "historic, cultural, economic, social, or health,” effects, “whether direct, indirect, or cumulative”). Nonetheless, Defendants point to nothing in the Administrative Record to show why they believe their previous environmental concerns have subsided over time or why they are, in fact, no longer concerns. Plaintiffs emphasize that the DOI failed to distinguish its previous position that gun restrictions were a “basic mechanism ... to protect the natural and cultural resources of the parks [and wildlife refuges] and to protect visitors and property within the parks.” Pis.’ Mot. at 26-27 (quoting 48 Fed.Reg. at 30252). Plaintiffs argue that the DOI’s “only mention of the prior rules was a description of how they operated,” Pis.’ Mot. at 26, and that this brief mention was insufficient to justify a reversal of its previous position. Id. at 25. The D.C. Circuit has repeatedly explained that an agency’s unexplained “180 degree turn away from [precedent is] arbitrary and capricious,” and that an agency’s decision “to reverse its position in the face of a precedent it has not persuasively distinguished is quintessentially arbitrary and capricious.” La. Pub. Serv. Comm’n v. Fed. Energy Regulatory Comm’n, 184 F.3d 892, 897 (D.C.Cir.1999) (citing Motor Vehicle Mfrs. Ass’n, 463 U.S. at 57, 103 S.Ct. 2856) (“[a]n agency’s view of what is in the public interest may change, either with or without a change in circumstances. But an agency changing its course must supply a reasoned analysis”). “ ‘[T]he core concern underlying the prohibition of arbitrary and capricious agency action’ is that agency ‘ad hocery’ is impermissible.” Ramaprakash v. Fed. Aviation Admin. & Nat’l Transp. Safety Bd., 346 F.3d 1121, 1130 (D.C.Cir.2003) (quoting Pacific N.W. Newspaper Guild, Local 82 v. Nat’l Labor Relations Bd., 877 F.2d 998, 1003 (D.C.Cir.1989)). See also ANR Pipeline Co. v. Fed. Energy Regulatory Comm’n, 71 F.3d 897, 901 (D.C.Cir.1995) (“Where an agency departs from established precedent without a reasoned explanation, its decision will be vacated as arbitrary and capricious.”). Relying on this guidance, lower courts have repeatedly inquired into whether an agency has adequately explained a change in its position in light of the obligations imposed by" }, { "docid": "6255007", "title": "", "text": "properly operate is a major function of the NLRB, and the expertise of the Board in factfinding and the operation of labor policy is substantial. Moreover, the specific question presented in this case — whether “organizing” is “germane to collective bargaining” — is a complex and difficult one for the layman, member of the judiciary or not. The answer requires a sophisticated understanding of labor relations and the collective bargaining process. As the Seventh Circuit noted in International Association of Machinists & Aerospace Workers v. NLRB, 133 F.3d 1012 (7th Cir.1998), cert. denied, 525 U.S. 813, 119 S.Ct. 47, 142 L.Ed.2d 36 (1998), [i]t is hard to think of a task more suitable for an administrative agency that specializes in labor relations, and less suitable for a court of general jurisdiction, than crafting the rules for translating the generalities of ... the statute as authoritatively construed in Beck ... into a workable system for determining and collecting agency fees. 133 F.3d at 1015. The second reason we read the statutory equivalence statements as not requiring that all decisions regarding germaneness be identical under the two Acts is that the Supreme Court in Ellis explicitly based its decision upon its close review of the legislative history of the RLA. The Act was adopted in order to provide a labor relations structure for the railroad industry' — • an industry that was highly organized, and in which the process of collective bargaining was significantly different from that which exists under the NLRA. The RLA establishes a highly detailed mandatory scheme for dispute resolution that has no parallel in the NLRA. In the case of a “minor” dispute under the RLA, the union and employer are required to attempt to negotiate a settlement, and if unsuccess ful, to submit to binding arbitration. RLA § 3, First. In the case of a “major” dispute, after negotiation and mandatory mediation are attempted, the parties must consider binding arbitration. §§ 6, 2, Second, 5, First, 7. Should either party refuse to arbitrate, the President may establish an Emergency Board where appropriate to investigate and report on" }, { "docid": "24242", "title": "", "text": "their behalf (the union being required to represent all the members of the unit equally, whether or not they are union members). The free ride is prevented by making the nonmembers pay their aliquot share of the union’s cost of representing the workers in the unit — but no more. All the details necessary to make the rule of Beck operational were left to the Board, subject to the very light review authorized by Chevron. It is hard to think of a task more suitable for an administrative agency that specializes in labor relations, and less suitable for a court of general jurisdiction, than crafting the rules for translating the generalities of the Beck decision (more precisely, of the statute as authoritatively construed in Beck) into a workable system for determining and collecting agency fees. The posture of this case, moreover, makes judicial review necessarily abstract, and as a result limited in depth. In the wake of Beck, the machinists’ union adopted the procedures that were before the Board in this case. The Board evaluated these procedures not in terms of their actual operation, evidence of which was not placed before the Board, but in terms of their conformity to the general norm of reasonableness that is implicit in the concept of “fair” representation. Air Line Pilots Ass’n v. O’Neill, 499 U.S. 65, 78, 111 S.Ct. 1127, 1135-36, 113 L.Ed.2d 51 (1991); Ford Motor Co. v. Huffman, 345 U.S. 330, 338, 73 S.Ct. 681, 686, 97 L.Ed. 1048 (1953); Trnka v. Local Union No. 688, 30 F.3d 60 (7th Cir.1994); Young v. UAW-LETC, 95 F.3d 992, 996-98 (10th Cir.1996). The briefs do not even tell us the average annual dues of a member of the machinists’ union or the percentage of those dues that is represented by the agency fee, though we were told at argument that the first number is about $300 a year and the second about 85 percent. There is no evidence about actual mistakes in the calculation of the agency fee or actual confusion of workers about their rights under Beck. The challengers thus face the" }, { "docid": "9824768", "title": "", "text": "and financial core payors have no need for this information to decide whether to exercise their Beck rights, but it concluded that providing the information would be an “expensive and timeconsum-ing undertaking.” International Bhd. of Teamsters, Local 166, 327 NLRB No. 176, slip. op. at 3. Whether to disclose the percentage is a “judgment call,” within the “wide range of reasonableness” afforded unions in carrying out their duty of fair representation, the Board found. Local 166’s failure to disclose the percentage was not “arbitrary, discriminatory, or in bad faith.” Id. Absent Abrams, we would evaluate the Board’s reasoning pursuant to a highly deferential standard. See Ferriso v. NLRB, 125 F.3d 865, 869 (D.C.Cir.1997). Yet as our opinion in this case demonstrates, Abrams’ extension of Hudson to new employees and financial core payors has foreclosed us from considering the Board’s rationale at all, requiring that we ignore not just our traditional deference to the Board, but also the “wide range of reasonableness” afforded unions in satisfying their duty of fair representation. See Marquez, 119 S.Ct. at 300. “It is hard to think of a task more suitable for an administrative agency that specializes in labor relations, and less suitable for a court of general jurisdiction, than crafting the rules for translating the generalities of the Beck decision ... into a workable system for determining and collecting agency fees.” International Ass’n of Machinists & Aerospace Workers v. NLRB, 133 F.3d 1012, 1015 (7th Cir.1998). By commandeering a judgment that should have been left to the Board’s expertise, Abrams has produced a result that I doubt Hudson intended." }, { "docid": "7454084", "title": "", "text": "this analysis, and our continued adherence to [Ikeler], will depend on the specific facts of future cases and arguments pertaining to the stale complaint rule. Order Denying Reconsideration at 1-2 n.1. This court has observed that “the core concern underlying the prohibition of arbitrary or capricious agency action” is that agency “ad hocery” is impermissible. Pacific N.W. Newspaper Guild, Local 82 v. NLRB, 877 F.2d 998, 1003 (D.C.Cir.1989). The statements extracted above indicate that the Board has failed to satisfy this core requirement. They amount to a promise from the Board that at some point in the future, the stale complaint rule may again mean what it once did — depending on “specific facts of future cases.” It is impossible at this point to tell whether the Board, in the next stale complaint case, will assess the seriousness of the violation, or not; will insist on a showing of prejudice, or not; will require FAA diligence in investigating a possible violation as well as in prosecuting a known one, or not. We have it on high authority that “the tendency of the law must always be to narrow the field of uncertainty.” O.W. Holmes, The Common Law 127 (1881). The Board’s unexplained departures from precedent do the opposite. “[WJhere an agency departs from established precedent without a reasoned explanation, its decision will be vacated as arbitrary and capricious.” ANR Pipeline Co. v. FERC, 71 F.3d 897, 901 (D.C.Cir.1995). For the reasons stated, we vacate the orders and remand to the Board for further proceedings. . Hearings to Study Senate Concurrent Resolution 21 Before a Subcommittee of the Senate Committee on Labor and Public Welfare, 82nd Cong., 1st Sess. 224 (1951) (quoted in Heniy J. Friendly, Benchmarks 106 (1967)). . Rule 33 provides a separate procedure for cases in which the FAA alleges a lack of qualification — typically a more serious charge. Even if some or all of the allegations in the complaint are stale, the case may proceed if the administrative law judge \"deems that án issue of lack of qualification would be presented by any or all of" }, { "docid": "9458419", "title": "", "text": "of relevant considerations,” not arbitrary ones. Reading Anthracite Co., 326 N.L.R.B. No. 143, 1998 WL 726724, at *2 (1998); see also Marquez v. Screen Actors Guild, Inc., 525 U.S. 38, 45-46, 119 S.Ct. 292, 142 L.Ed.2d 242 (1998) (making it clear that a union has “room to make discretionary decisions and choices, even if those judgments are ultimately wrong”). Indeed, even though the standard is based in principles of “reasonableness,” proof of negligence does not establish a breach of the duty. See Le’Mon v. NLRB, 952 F.2d 1208, 1205 (10th Cir.1991). Just as the Board reviews the Union’s actions with deference, we accord substantial deference to the Board’s decision. We will set aside a decision of the Board only if it “acted arbitrarily or otherwise erred in applying established law to the facts” at issue, International Union of Electronic, Elec., Salaried, Mach. & Furniture Workers v. NLRB, 41 F.3d 1532, 1536 (D.C.Cir.1994) (internal quotation marks omitted), or if its findings are not supported by “substantial evidence,” 29 U.S.C. § 160(f) (1994). In the context of this case, the substantial evidence standard is most pertinent. See Boilermakers Local No. 374 v. NLRB, 852 F.2d 1353, 1358 (D.C.Cir.1988) (reviewing Board’s duty of fair representation decision under substantial evidence standard); see also Le’Mon, 952 F.2d at 1205-06 (reviewing for substantial evidence where Board found no breach of duty); Tenorio v. NLRB, 680 F.2d 598, 601 (9th Cir.1982) (reviewing for substantial evidence where Board found no breach of duty). 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.’ ” Micro Pacific Dev. Inc. v. NLRB, 178 F.3d 1325, 1329 (D.C.Cir.1999) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938)). This court will uphold the Board’s decision upon substantial evidence even if we would reach a different result upon de novo review. See Perdue Farms, Inc., Cookin’ Good Div. v. NLRB, 144 F.3d 830, 834-35 (D.C.Cir.1998). In undertaking substantial evidence review, we consider not just the evidence that supports the Board’s" }, { "docid": "16543227", "title": "", "text": "849 (1964); Terrace Gardens Plaza, Inc. v. NLRB, 91 F.3d 222, 225 (D.C.Cir.1996). 5. We accord deference to the Board’s exercise of its authority under 29 U.S.C. § 159 to certify appropriate bargaining units. See, e.g., BB&L, Inc. v. NLRB, 52 F.3d 366, 369 (D.C.Cir.1995). That deference is subject to certain limits, however, and one of those limits is that the Board “cannot ignore its own relevant precedent but must explain why it is not controlling.” Id. (citing Cleveland Constr. Co. v. NLRB, 44 F.3d 1010, 1016 (D.C.Cir.1995)); see also International Union of Operating Eng’rs v. NLRB, 294 F.3d 186, 188 (D.C.Cir.2002) (“The Board has an obligation to engage in reasoned decision-making, which ... requires it to give a reasoned explanation when it departs from its own precedent.”) (citations omitted). In this case, the Board has not provided any explanation — let alone an adequate one — of how its disposition is consistent with its contrary holdings in the post-Yeshiva cases that appear to have presented similar facts. The only opinion is that of the Regional Director, which did not discuss or even mention a single one of the precedents on which the College relied. An agency is by no means required to distinguish every precedent cited to it by an aggrieved party. See Bush-Quayle ’92 Primary Comm., Inc. v. Federal Election Comm’n, 104 F.3d 448, 454 (D.C.Cir.1997) (“We may permit agency action to stand without elaborate explanation where distinctions between the case under review and the asserted precedent are so plain that no inconsistency appears.”); Hall v. McLaughlin, 864 F.2d 868, 873 (D.C.Cir.1989) (“if the court itself finds the past decisions to involve materially different situations, the agency’s burden of explanation about any alleged ‘departures’ is considerably less”). But where, as here, a party makes a significant showing that analogous cases have been decided differently, the agency must do more than simply ignore that argument. See Speedrack Prods. Group, Ltd. v. NLRB, 114 F.3d 1276, 1279 (D.C.Cir.1997) (Board “ignored itá own precedent without offering any explanation as to why this precedent was inapplicable”). As this court noted in Cleveland" }, { "docid": "22205291", "title": "", "text": "as-yet ill defined. See id. at 1328 (“ ‘Not every principle essential to the effective administration of a statute can or should be cast immediately into the mold of a general rule. Some principles must await their own development, while others must be adjusted to meet particular, unforeseeable situations. In performing its important functions in these respects, therefore, an administrative agency must be equipped to act either by general rule or by individual order.’ ”) (quoting SEC v. Chenery Corp., 332 U.S. 194, 203, 67 S.Ct. 1575, 91 L.Ed. 1995 (1947)). These same concerns simply do not inhere in a court’s decision to overrule past precedent applying Brand X deference. While an agency’s interpretive flexibility is essential to its policymaking functions, stare decisis ensures the stability of judicial rules and mandates that our interpretations of statutes do not evolve in each case via the same dialectic process. See Laborers’ Int’l Union of N. Am. v. Foster Wheeler Corp., 26 F.3d 375, 386 n. 8 (3d Cir.1994) (noting that the retroactivity rationales articled in Harper and Beam “do not apply analogously to administrative agency adjudications, primarily because the doctrine of stare decisis is far less rigorous in that.... [A]n agency boasts both judicial and legislative powers. When an agency exercises its legislative powers, neither the ‘cases’ or ‘controversies’ prerequisite, nor the rule of stare decisis, rears its head.”) (internal citations omitted); Dist. Lodge 64, Int’l Ass’n of Machinists and Aerospace Workers v. NLRB, 949 F.2d 441, 447 (D.C.Cir.1991) (noting that “Article III grounds” such as stare decisis and the principle that litigants in similar situation should be treated the same “are inapplicable to administrative adjudications”); see also NLRB v. Seven-Up Bottling Co., 344 U.S. 344, 349, 73 S.Ct. 287, 97 L.Ed. 377 (1953) (“The constant process of trial and error, on a wider and fuller scale than a single adversary litigation permits, differentiates perhaps more than anything else the administrative from the judicial process.”). For these reasons, the Montgomery Ward framework is ill suited to resolving the retroactivity questions posed by Brand X deference. IV. The proper rule of decision stems" }, { "docid": "22205182", "title": "", "text": "in being able to rely on the terms of a rule as it is written.” Id. at 1333. To implement this balancing test, we adopted the framework set forth by the D.C. Circuit in Retail Union: (1) whether the particular case is one of first impression, (2) whether the new rule represents an abrupt departure from well established practice or merely attempts to fill a void in an unsettled area of law, (3) the extent to which the party against whom the new rule is applied relied on the former rule, (4) the degree of the burden which a retroactive order imposes on a party, and (5) the statutory interest in applying a new rule despite the reliance of a party on the old standard. Id. at 1333 (quoting Retail Union, 466 F.2d at 390). Although the five-factor Montgomery Ward test was developed in the context of an agency overturning its own rule, it has also been applied when court decisions formed part of the background. See, e.g., Miguel-Miguel v. Gonzales, 500 F.3d 941, 951-53 (9th Cir.2007) (noting that “both the BIA and this court” had adopted the rule at issue before the BIA decided to exercise its statutory discretion to change it); ARA Servs., Inc. v. NLRB, 71 F.3d 129, 135 (4th Cir.1995) (noting that “the rule proposed by the Board represents an abrupt break with well-settled policy” because it “purports to over-turn numerous court precedents and Board decisions” (internal quotation marks omitted)); Local 900, Int’l Union of Elec., Radio & Mach. Workers v. NLRB, 727 F.2d 1184, 1195 (D.C.Cir.1984) (“Given the confusion in the Board’s and courts’ decisions over the years, the new rule cannot be called an abrupt break with a well-settled policy....”). Although none of these cases actually analyzed the effect of a prior court decision on the Montgomery Ward framework, they indicate that the test is flexible enough to account for both agency and court precedent when considering the relevant legal background. The Montgomery Ward test is more flexible than Chevron Oil, and allows us to take into account the intricacies of a Brand X" }, { "docid": "9458439", "title": "", "text": "and arbitrary action by a union against represented employees. Where, as in the instant case, a union uses a rational method to apportion fees and takes positive steps to establish neutral and fair procedures to protect the legal rights of nonmembers, a complainant is hard pressed to show a DFR breach. Given the evidence presented to the Board regarding the available audits of local chapters’ expenditures, the structure of the International and its relationship to nonrepresentational expenditures, and the challenge procedure, and given the deferential review mandated by the posture of this case, we are constrained to uphold the Board’s conclusion that the Union did not violate its duty of fair representation. We cannot say that the Board erred in finding that the Union’s actions were not “irrational” or “without a rational basis or explanation.” Marquez, 525 U.S. at 46, 119 S.Ct. 292. The Board was not asked to decide whether the Union’s choices were “better or more logical than other possibilities,” but only whether the Union “act[ed] on the basis of relevant considerations.” Reading Anthracite Co., 1998 WL 726724, at *2. There is substantial evidence to support the Board’s finding that the Union did not breach its duty of fair representation. Therefore, this court has no business second-guessing the Board’s judgment. As Chief Judge Posner noted in International Ass’n of Machinists, “[i]t is hard to think of a task more suitable for an administrative agency that specializes in labor relations, and less suitable for a court of general jurisdiction, than crafting the rules for translating the generalities of the Beck decision ... into a workable system for determining and collecting agency fees.” 133 F.3d at 1015. III. Conclusion For the reasons articulated herein, we grant Mr. Gally’s petition for review and remand the case to the Board to determine the appropriate remedy. We deny the petition for review regarding the Union’s use of a local presumption." }, { "docid": "13960", "title": "", "text": "employees and negotiated wage rates in the retail food industry, the Board concluded otherwise. It is troubling that Beck precludes us from giving the deference to the fact-finding and expertise of the agency charged with administering the labor laws that it would otherwise be accorded under Chevron, U.S.A. v. NRDC, 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). As Judge Posner, writing for the Seventh Circuit, has noted: It is hard to think of a task more suitable for an administrative agency that specializes in labor relations, and less suitable for a court of general jurisdiction, than crafting the rules for translating the generalities of the Beck decision (more precisely, of the statute as authoritatively construed in Beck) into a workable system for determining and collecting agency fees. Int’l Ass’n of Machinists & Aerospace Workers v. NLRB, 133 F.3d 1012, 1015 (7th Cir.1998). I respectfully submit that a case-by-case, industry specific approach, see Lehnert v. Ferris Faculty Ass’n, 500 U.S. 507, 519, 111 S.Ct. 1950, 114 L.Ed.2d 572 (1991), which applies guidelines, not categorical rules, is the preferable approach. Not being presented with that option in this case, however, I concur in the majority opinion." }, { "docid": "16543226", "title": "", "text": "review of the Board. As it had before, the College argued that the LeMoyne-Owen faculty exercise authority comparable to that of the faculty members in American International College and the analogous post-FesMw cases. See Employer’s Request for Review of Regional Director’s Supplemental Decision and Certification of Representative at 12-15. The Board again issued a terse order denying review, again with no discussion of the precedents. Order, NLRB Case No. 26-RC-8328 (Oct. 11, 2002). The College refused to bargain with the faculty, and the Board ultimately deemed the College guilty of unfair labor practices and ordered it to bargain. Decision and Order, NLRB Case No. 26-CA-20953, at 2 (Jan. 17, 2003). The matter is before this comb on the College’s petition for review of the order and the Board’s cross-application for enforcement. The College’s challenge brings the entire NLRB proceeding — including the Regional Director’s underlying decision to certify the full-time faculty as a bargaining unit — before this court for review. Boire v. Greyhound Corp., 376 U.S. 473, 477, 84 S.Ct. 894, 896-97, 11 L.Ed.2d 849 (1964); Terrace Gardens Plaza, Inc. v. NLRB, 91 F.3d 222, 225 (D.C.Cir.1996). 5. We accord deference to the Board’s exercise of its authority under 29 U.S.C. § 159 to certify appropriate bargaining units. See, e.g., BB&L, Inc. v. NLRB, 52 F.3d 366, 369 (D.C.Cir.1995). That deference is subject to certain limits, however, and one of those limits is that the Board “cannot ignore its own relevant precedent but must explain why it is not controlling.” Id. (citing Cleveland Constr. Co. v. NLRB, 44 F.3d 1010, 1016 (D.C.Cir.1995)); see also International Union of Operating Eng’rs v. NLRB, 294 F.3d 186, 188 (D.C.Cir.2002) (“The Board has an obligation to engage in reasoned decision-making, which ... requires it to give a reasoned explanation when it departs from its own precedent.”) (citations omitted). In this case, the Board has not provided any explanation — let alone an adequate one — of how its disposition is consistent with its contrary holdings in the post-Yeshiva cases that appear to have presented similar facts. The only opinion is that of the" } ]

[ { "docid": "22266570", "title": "", "text": "in key positions; and then again these factors are found in varying combinations. See Williamson & Harris, Trends in Collective Bargaining, 100-102 (1945); Harbison, Seniority Policies and Procedures .as Developed through' Collective Bargaining 1-10 (1941). To draw from the Selective Service Act an implication that date of employment is the inflexible basis for determining seniority rights as reflected in layoffs is to ignore a vast body of long-established controlling practices in the process of collective bargaining of which the seniority system to which that Act refers is a part. One of the safeguards insisted upon by unions for the effective functioning of collective bargaining is continuity in office for its shop stewards or union chairmen. To that end provision is made, as it was made here, .against laying them off merely on the basis of temporal seniority. Because they are union chairmen they are not regarded as merely. individual members of the union; they are in a special position in relation to collective bargaining for the benefit of the whole union. To retain them as such is not an encroachment on the seniority system but á due regard of union interests which embrace the system of seniority rights. These considerations are decisive of the case. The agreements made by the Union with Lockheed represent familiar developments in the process of collective bargaining which the Selective Service Act presupposes and in the context' of which it must be placed. Kirk’s rights, including seniority, before he entered the service were derived from the agreement of 1941. So, likewise, ‘were his rights, including seniority, as an employee on fur lough defined'by the agreement of 1945, inasmuch as that agreement -in no wise disadvantaged his position because he was in the military service. In the ordinary and orderly course of formulating the terms of employment, the 1945 agreement between the Union and Lockheed in some directions modified the provisions of the 1941 agreement. A labor agreement is a code for the government of-an industrial enterprise and, like all government, ultimately depends for its effectiveness on the quality of enforcement of its code. Because a" } ]

[ { "docid": "12477015", "title": "", "text": "determine whether this case differs in such a way that Dempsey would not govern. The situation here is more extreme than that before the Dempsey court. That fact does not render Dempsey's reasoning use less. In Dempsey, an employee who failed to pay fees to UTU would stop accruing seniority in train service and the employee would fall behind others who continued to gain seniority. Upon an employee’s return to train service, the decline in his relative positive on the seniority list might result in no position for the employee to fill or too little seniority to “bump” another employee. In this case, employees falling under paragraph (b) will lose all seniority and thus we will assume the likelihood of their potential unemployment is greater, perhaps far greater. According to the Seventh Circuit, the Dempsey plaintiffs effectively sought a pronouncement that Section 2, Eleventh, provided some guaranteed right to continue accruing seniority. The Plaintiffs here make the same argument with the additional request that this Court find in Section 2, Eleventh, a guaranteed right to keep already accrued seniority. As explained in Dempsey, however, the RLA is not a guarantee of employment for life and employees have no vested right in the seniority created by the collective bargaining agreement between CCP and UTU. 16 F.3d at 839-40. Collective bargaining agreements and the seniority rights defined within them are contracts subject to revision, modification or abrogation. Id. To put it simply, seniority is not derived from union membership; rather it is a right derived from and limited by the collective bargaining agreement. Under these circumstances, the Dempsey court found that Section 2, Eleventh (c) provides no guarantee that a transferred employee has the right to continue to accrue seniority in his old craft while working in another. Id. The Seventh Circuit acknowledged the temptation of continuing to accrue additional seniority might entice some BLE members to satisfy the union shop requirement by paying dues to UTU to avoid potential unemployment as others passed them on the train service seniority list. Id. at 840. Succumbing to temptation to obtain a benefit that" }, { "docid": "12477012", "title": "", "text": "not to pay UTU, he would still satisfy the union shop agreement as a member of BLE and could not be terminated for failure to comply with that provision. Dempsey, 16 F.3d at 838. Thus, as to paragraph (a) of the Seniority Retention clause, we find that it is not a union shop provision and thus is not violative of Section 2, Eleventh. For those employees who make the transfer after the date of the agreement and fall under paragraph (b) of the Seniority Retention clause, closer examination is warranted. We must interpret Rule 55 as it is written, not as Hales contends it will be enforced. As such, the Court must determine whether the loss of already earned seniority for failure to pay UTU dues renders this portion of Rule 55 a union shop agreement subject to Section 2, Eleventh (c). In Dempsey, the Seventh Circuit noted that the challenged provision did not “require payment of dues to UTU to preserve already-acquired seniority in train service.” 16 F.3d at 838. We have that situation here. The Seventh Circuit has previously held that requiring transferred or promoted employees to maintain union membership in order to retain already earned seniority constitutes impermissible discrimination under § 8(a)(3) of the NLRA. N.L.R.B. v. Manitowoc Engineering Co., 909 F.2d 963, 969-71 (7th Cir.1990), cert. denied, 498 U.S. 1083, 111 S.Ct. 954, 112 L.Ed.2d 1042 (1991). Throughout their argument Plaintiffs make numerous references to the NLRA but we find these analogies largely unhelpful. We must remind the reader that the Seventh Circuit quite explicitly refused to resort to the NLRA because of the ample case law under the RLA, at least for purposes of Section 2, Fourth. This Court is mindful of that refusal as well as the Supreme Court’s continued emphasis that “the NLRA cannot be imported wholesale into the railway labor area.” Trans World Airlines, Inc. v. Indep. Fed’n of Flight Attendants, 489 U.S. 426, 439, 109 S.Ct. 1225, 1233, 103 L.Ed.2d 456 (1989). The NLRA may offer helpful analogies but analogy should not be confused with binding precedent. With that said, we" }, { "docid": "23086319", "title": "", "text": "STAHL, Circuit Judge. Appellants, Brotherhood of Locomotive Engineers and several of its individual members (“BLE”) sought to enjoin enactment of a clause in a newly negotiated collective bargaining agreement between Appellees United Transportation Union (“UTU”) and Springfield Terminal Railway Co. (“ST”), as a violation of the Railway Labor Act (“RLA”), 45 U.S.C. §§ 151-188. The district court denied the injunction and granted summary judgment for UTU and ST on BLE’s complaint. Wightman v. Springfield Terminal Ry. Co., 915 F.Supp. 503, 507 (D.Mass.1996). BLE now appeals. Background The RLA governs labor and collective bargaining arrangements between carriers, or employers, and unions. ST is a railroad operator located in Springfield, Massachusetts, and a carrier for purposes of the RLA. BLE and UTU are two of several trade unions who have collective bargaining agreements with ST. The individual plaintiffs in this ease belong to BLE. The RLA authorizes carriers and unions to establish union shops. A union shop in the railroad industry simply means that in order to remain employed with a railroad company, employees must belong to one of the national, RLA recognized railroad unions. See 45 U.S.C. §§ 152, Eleventh(a) and (c). ST and the unions with which it maintains collective bargaining agreements have established a union shop. Employment in the railroad industry revolves around crafts or classes of work, each of which is represented by a different union. Train service and engineer service constitute two such crafts. The former encompasses conductors, brakemen, trainmen and yardmen, and the latter includes primarily locomotive engineers. UTU represents the train service craft and BLE represents the engineer service craft. By practice, junior engineers advance from the ranks of the train service employees. Over the course of any given year, however, the amount of engineer work may fluctuate. During periods of reduced engineer work, junior engineers may have to return temporarily to train service in order to remain employed. Junior engineers, therefore, have an economic interest in maintaining their train service seniority. Prior to 1995, the UTU-ST collective bargaining agreement allowed non-UTU member engineers to continue to accrue train service seniority. In 1995, however, UTU" }, { "docid": "12477011", "title": "", "text": "effectively forcing them to join more than one union or change to UTU membership. The Seventh Circuit disposed of this argument in Dempsey. Section 2, Eleventh (c) only limits Section 2, Eleventh (a)’s general authorization of a union shop under the RLA. As the Seventh Circuit stated, “the prohibitions against dual unionism contained in Section 2, Eleventh (c) only kick in when the agreement at hand purports to be a union shop agreement made pursuant to Section 2, Eleventh (a).” Dempsey, 16 F.3d at 838. The central issue thus becomes whether Rule 55 conditions continued employment in the train service craft upon payment of fees or dues to UTU. Id. Nothing on the face of Rule 55 establishes such conditions for those employees who were transferred or promoted to train service prior to the date of the agreement between CCP and UTU. As in Dempsey, these employees are simply required to pay the fees or dues if they wish to obtain an additional benefit, further accumulation of train service seniority. If such an employee decides not to pay UTU, he would still satisfy the union shop agreement as a member of BLE and could not be terminated for failure to comply with that provision. Dempsey, 16 F.3d at 838. Thus, as to paragraph (a) of the Seniority Retention clause, we find that it is not a union shop provision and thus is not violative of Section 2, Eleventh. For those employees who make the transfer after the date of the agreement and fall under paragraph (b) of the Seniority Retention clause, closer examination is warranted. We must interpret Rule 55 as it is written, not as Hales contends it will be enforced. As such, the Court must determine whether the loss of already earned seniority for failure to pay UTU dues renders this portion of Rule 55 a union shop agreement subject to Section 2, Eleventh (c). In Dempsey, the Seventh Circuit noted that the challenged provision did not “require payment of dues to UTU to preserve already-acquired seniority in train service.” 16 F.3d at 838. We have that situation" }, { "docid": "12477006", "title": "", "text": "wish to continue to accumulate seniority while they are working outside the craft. As the Court realized when it stayed ruling on the pending motions, the Dempsey court’s opinion is disposi-tive of many of the issues raised here. For the reasons set forth below, the Court will grant Defendants’ motion for summary judgment and will deny Plaintiffs’ motion for summary judgment. BACKGROUND Defendant CCP is an interstate rail carrier within the meaning of Section 1 of the Rail way Labor Act (“RLA”), 45 U.S.C. § 151 et seq. Defendant UTU is a labor organization which serves as the exclusive bargaining representative for the category of employees commonly referred to as the train service craft. The train service craft includes CCP’s conductors, brakemen, yardmen and switch-men. Plaintiff BLE is a labor organization which serves as the exclusive collective bargaining representative for the engine service craft which includes CCP’s locomotive engineers. As is common, the collective bargaining agreements between CCP and UTU and between CCP and BLE contained a union shop provision requiring that employees join the union designated as their authorized representative as a condition of continued employment. The agreements also provided that this requirement is satisfied by membership in any other national labor organization organized under the RLA which admits as members employees in the train or engine service crafts. Thus, membership in either UTU or BLE satisfied the union shop provision. Over time, it became common for train service employees to elect to hold membership in BLE even though it is not the designated representative of such employees. The six individual plaintiffs are members of BLE and were working in engine service at the time of this action. Previously, they had worked in train service and hold seniority in both train service and engine service as locomotive engineers. As in Dempsey, a train service employee first obtained seniority through date of hire and thereafter maintained seniority per the collective bargaining agreement. The agreement provided that even when an employee leaves train service crafts for other crafts, such as engine service, the employee would still continue to accrue seniority in" }, { "docid": "12477010", "title": "", "text": "UTU, John W. Hales, states that UTU and CCP will not employ reduction or termination of seniority as provided in Rule 55. Instead, Hales asserts that the employee will not accumulate further seniority and will not lose already earned seniority. Plaintiffs claim Rule 55 violates Section 2 Third, Fourth, Fifth and Eleventh of the RLA, 45 U.S.C. § 152, Third, Fourth, Fifth and Eleventh. The parties agree that the facts are essentially undisputed, thus the Court’s task is made less complex. Because the parties have filed cross-motions, we must extend the required favorable inferences to each when viewing the other’s motion. Thomas v. Sullivan, 801 F.Supp. 65, 67 (N.D.Ill.1992). In the end, we must determine whether either party is entitled to judgment as a matter of law. Fed.R.CivJP. 56; McCarthy v. Kemper Life Ins. Cos., 924 F.2d 683, 687 (7th Cir.1991). Section 2, Eleventh (c) and Dual Unionism Plaintiffs argue that Rule 55 violates Section 2, Eleventh (c) by requiring employees to pay a fee or dues to UTU to continue to accrue seniority and effectively forcing them to join more than one union or change to UTU membership. The Seventh Circuit disposed of this argument in Dempsey. Section 2, Eleventh (c) only limits Section 2, Eleventh (a)’s general authorization of a union shop under the RLA. As the Seventh Circuit stated, “the prohibitions against dual unionism contained in Section 2, Eleventh (c) only kick in when the agreement at hand purports to be a union shop agreement made pursuant to Section 2, Eleventh (a).” Dempsey, 16 F.3d at 838. The central issue thus becomes whether Rule 55 conditions continued employment in the train service craft upon payment of fees or dues to UTU. Id. Nothing on the face of Rule 55 establishes such conditions for those employees who were transferred or promoted to train service prior to the date of the agreement between CCP and UTU. As in Dempsey, these employees are simply required to pay the fees or dues if they wish to obtain an additional benefit, further accumulation of train service seniority. If such an employee decides" }, { "docid": "23086326", "title": "", "text": "prevent compulsory dual unionism or the necessity of changing from one union to another when an employee temporarily changes crafts.” Landers v. Nat’l R.R. Passengers Corp., 485 U.S. 652, 657-58, 108 S.Ct. 1440, 1443, 99 L.Ed.2d 745 (1988); Rychlik, 352 U.S. at 492, 77 S.Ct. at 427. Section 152, Eleventh(c) does not exist to benefit unions by permitting them to recruit members from the ranks of other established unions, or to provide railroad employees with a general right to join unions other than the designated bargaining representative of their craft, except to meet the narrow problem of inter-craft mobility in a union shop. Rychlik, 352 U.S. at 493, 77 S.Ct. at 427-28. Bearing in mind the context and purpose of § 152 Eleventh(c), we turn to BLE’s challenge to Article 21. BLE essentially attacks Article 21 from two angles. First, BLE contends, Article 21 constitutes either a § 152, Eleventh(a) union shop agreement that violates § 152, Eleventh(c) or an amendment to the existing ST-UTU agreement that violates § 152, Eleventh(c). Second, BLE argues, Article 21 will upset “the cost sharing scheme which was continued and fostered by the 1951 union shop amendments.” We disagree. On its face, Article 21 can neither constitute a union shop agreement by itself, nor an amendment to the ST-UTU agreement that violates Eleventh(c). Nothing in the language of Article 21 requires membership in UTU or any other union as a condition of employment. See Brotherhood of Locomotive Eng’rs v. Kansas City Southern Ry. Co., 26 F.3d 787, 793 (8th Cir.) (§ 152, Eleventh(c) applies only to a § 152, Eleventh(a) union shop agreement), cert. denied, — U.S. -, 115 S.Ct. 320, 130 L.Ed.2d 281 (1994); Dempsey v. Atchison, Topeka and Santa Fe Ry. Co., 16 F.3d 832, 838 (7th Cir.) (same), cert. denied, — U.S. -, 115 S.Ct. 82, 130 L.Ed.2d 35 (1994). Article 21 does not require an engineer to choose between dual union membership or unemployment; Article 21 simply requires an engineer to choose whether to retain and continue to accrue seniority in the train service craft. Wightman, 915 F.Supp. at 506." }, { "docid": "23086345", "title": "", "text": "notice and an opportunity to participate in the negotiations. Affirmed. . 45 U.S.C. § 152 has been drafted in subsections First through Eleventh. Section 152, Eleventh contains subsections a through d. We note the unusual numbering scheme to explain our citation. . In its reply brief, BLE appears to hint that the ebb and flow of train service employees to and from engineer service occurs with less regularity today than in prior eras. . The Dempsey opinion ultimately views seniority as we do, despite that court’s implication that a provision such as Article 21 might constitute a union shop agreement. See 16 F.3d at 838-39. Dempsey concludes that seniority, bom of the collective bargaining agreement, is subject to revision or abrogation. 16 F.3d at 839. We do not interpret Dempsey, therefore, as supporting BLE’s argument. . BLE relies on three cases in support of its contention that Article 21 constitutes an illegal union shop agreement: Felter v. Southern Pac. Co.. 359 U.S. 326. 79 S.Ct. 847. 3 L.Ed.2d 854 (1959), Birkholz v. Dirks, 391 F.2d 289 (7th Cir.1968), vacated as moot, 395 U.S. 210, 89 S.Ct. 1767, 23 L.Ed.2d 213 (1969) and O’Connell v. Erie Lackawanna R.R., 391 F.2d 156 (2d Cir.1968), vacated as moot, 395 U.S. 210, 89 S.Ct. 1767, 23 L.Ed.2d 213 (1969). BLE asserted these cases unsuccessfully to the Seventh Circuit in support of a nearly identical argument. See Dempsey, 16 F.3d at 838 n. 6. We concur in that court's conclusion that these cases are inappo-site. . To be sure, it does not appear that ST was entirely candid with BLE regarding its negotiations with UTU and the substance of the ST-UTU agreement. The RLA, however, does not compel ST to inform BLE of the substance of negotiations with a third union, and we do not identify anti-BLE animus in ST's actions. . BLE essentially argues that by making it so attractive for engineers to join UTU, Article 21 has the effect of impermissibly interfering with their free choice of union, and coercing them to join UTU, in violation of §§ 152, Third and Fourth." }, { "docid": "12477016", "title": "", "text": "keep already accrued seniority. As explained in Dempsey, however, the RLA is not a guarantee of employment for life and employees have no vested right in the seniority created by the collective bargaining agreement between CCP and UTU. 16 F.3d at 839-40. Collective bargaining agreements and the seniority rights defined within them are contracts subject to revision, modification or abrogation. Id. To put it simply, seniority is not derived from union membership; rather it is a right derived from and limited by the collective bargaining agreement. Under these circumstances, the Dempsey court found that Section 2, Eleventh (c) provides no guarantee that a transferred employee has the right to continue to accrue seniority in his old craft while working in another. Id. The Seventh Circuit acknowledged the temptation of continuing to accrue additional seniority might entice some BLE members to satisfy the union shop requirement by paying dues to UTU to avoid potential unemployment as others passed them on the train service seniority list. Id. at 840. Succumbing to temptation to obtain a benefit that increases employment security is not the same as being forced to do so as a condition of continued employment. As we said above, the temptation here is more extreme and simply stated is pay UTU or lose all seniority and perhaps find yourself unemployed when you return to train service. The Dempsey plaintiffs made a similar “de facto” condition of employment argument to no avail. Though the argument is stated in starker terms here, we find no basis to distinguish it from Dempsey. Thus, this Court reaches the same conclusion as the Seventh Circuit and finds that Rule 55 and its Seniority Retention clauses are not union shop agreements and do not fall within the scope of Section 2, Eleventh. Section 2, Third and Fourth In Dempsey, both the Seventh Circuit and the District Court found that plaintiffs had waived any argument under Section 2, Third and neither court addressed the issue. We find that Section 2, Third and Fourth are so closely related that the disposition of the two claims follows one from the" }, { "docid": "23086344", "title": "", "text": "bargaining agent. In this case, by contrast, UTU does not seek to unilaterally govern the ebb and flow itself. UTU, through Article 21, has simply negotiated with ST the mechanism through which train service employees accrue seniority, as part of negotiations over a general collective bargaining agreement. BLE and UTU have no tripartite agreement, nor is UTU attempting to unilaterally negotiate a set of rules governing movement between the two crafts. As the Eighth Circuit concluded, “[t]he distinctive division of railroad, employees under the RLA into crafts or classes, and the regular movement of employees among the crafts that is characteristic of the .industry, portends overlapping ‘interests’ among bargaining units in the composition of the crafts and in their labor agreements. That sort of interest, however, does not confer upon all unions the right to notice and participation in the arbitrations of all other unions.” Kansas City Southern, 26 F.3d at 791-92. We conclude that the RLA does not provide BLE with a bargainable interest in Article 21 such that ST and UTU owed BLE notice and an opportunity to participate in the negotiations. Affirmed. . 45 U.S.C. § 152 has been drafted in subsections First through Eleventh. Section 152, Eleventh contains subsections a through d. We note the unusual numbering scheme to explain our citation. . In its reply brief, BLE appears to hint that the ebb and flow of train service employees to and from engineer service occurs with less regularity today than in prior eras. . The Dempsey opinion ultimately views seniority as we do, despite that court’s implication that a provision such as Article 21 might constitute a union shop agreement. See 16 F.3d at 838-39. Dempsey concludes that seniority, bom of the collective bargaining agreement, is subject to revision or abrogation. 16 F.3d at 839. We do not interpret Dempsey, therefore, as supporting BLE’s argument. . BLE relies on three cases in support of its contention that Article 21 constitutes an illegal union shop agreement: Felter v. Southern Pac. Co.. 359 U.S. 326. 79 S.Ct. 847. 3 L.Ed.2d 854 (1959), Birkholz v. Dirks, 391 F.2d" }, { "docid": "23086328", "title": "", "text": "In ,Dempsey v. Atchison, Topeka and Santa Fe Ry. Co., 16 F.3d 832, 838 (7th Cir.1994), the Seventh Circuit faced a BLE challenge to a provision requiring engineers desirous of accumulating additional train service seniority to pay dues to UTU. Failure to pay, however, would not affect accrued seniority. In examining whether the provision constituted a union shop agreement, the Seventh Circuit relied in part on the fact that it did not require payment of dues to UTU in order to retain accrued seniority, implying that such a provision might constitute a union shop provision. Id. at 838 (citing NLRB v. Manitowoc Engineering Co., 909 F.2d 963, 969-71 (7th Cir.1990), cert. denied, Clipper City Lodge No. 516 v. NLRB, 498 U.S. 1083, 111 S.Ct. 954, 112 L.Ed.2d 1042 (1991)). Ultimately, the court concluded that the provision at issue did not create any conditions of continued employment, and therefore, did not constitute a § 152, Eleventh(a) union shop agreement. Id. In our view, the extra step Article 21 takes with respect to accrued seniority does not create any conditions on employment different from the provision in Dempsey. As indicated, nothing on the face of Article 21 requires employees to belong to UTU in order to remain employed. Despite the fact that Article 21 takes the extra step of conditioning seniority retention and accrual on continued dues payment, an engineer who chooses BLE over UTU satisfies either of the UTU-ST or BLE-ST union shop requirements. To the extent, therefore, that Dempsey implies that a provision such as Article 21 might constitute a union shop agreement or amendment, we respectfully disagree. BLE, however, asserts that engineers who choose BLE over UTU run the risk of unemployment when shuttled back to train service, since they will have no train service seniority. According to BLE, this effectively forces those engineers at the lower end of the engineer seniority list either to belong to UTU and BLE, or to UTU instead of BLÉ, as a condition of continued employment at ST. BLE asserts that § Í52, Eleventh(c) allows a railroad employee in a union shop to" }, { "docid": "23086332", "title": "", "text": "collective bargaining agreements, does not vest in employees. Robertshaw, 405 F.2d at 33; McMullans v. Kansas, Okla. & Gulf Ry., 229 F.2d 50, 53 (10th Cir.1956). Instead, seniority rights are subject to revision or even abrogation with the termination or renegotiation of the collective bargaining agreement. Dempsey, 16 F.3d at 839; Robertshaw, 405 F.2d at 33; McMullans, 229 F.2d at 54. Any rights employees have in seniority, therefore, are tied directly to the terms of the labor agreement between the carrier and the union representing their craft. Nothing in the RLA changes this fundamental tenet of labor law. Dempsey, 16 F.3d at 840; McMullans, 229 F.2d at 53. We recognize that Article 21 may make it attractive for at least some engineers to choose UTU over BLE. We stop short, however, of equating a union’s successful negotiation of a potential competitive advantage over another union with the kind of compulsory dual unionism § 152, Eleventh(c) exists to prevent. See Whiting Milk, 342 F.2d at 11 (“Obtaining a benefit for employees may well encourage others to join a union but that side effect does not violate the [NLRB], for ‘The truth is that the union is a service agency that probably encourages membership whenever it does its job well.’”) (quoting Local 357, Int’l Bhd. of Teamsters v. NLRB, 365 U.S. 667, 675-76, 81 S.Ct. 835, 840, 6 L.Ed.2d 11 (1961)). We conclude that § 152, Eleventh(c), does not provide the statutory basis to vest railroad employees with their accrued seniority. Finally, BLE asserts that Article 21 “upsets the sharing of costs of representation promoted by the 1951 amendments” in violation of § 152, Eleventh(e). Section 152, Eleventh(c) limits employees in a union shop to membership in those unions which qualify as electors of the union representatives on the National Railroad Adjustment Board (“NRAB”). The NRAB' exists to settle disputes arising under collective bargaining agreements. See Rychlik, 352 U.S. at 487, 77 S.Ct. at 425. As the Seventh Circuit pointed out, this requirement limits union shop participation to those unions which share the costs of administering the NRAB, and which “join together" }, { "docid": "12477005", "title": "", "text": "MEMORANDUM OPINION AND ORDER MAROVICH, District Judge. Plaintiffs Gary D. Carr, Daniel L. Christensen, Gary L. Hanson, Donald W. Hofmas-ter, John H. Wagner, Donald L. Wood Jr., and the Brotherhood of Locomotive Engineers (“BLE”) filed a complaint against Defendants Chicago, Central & Pacific Railroad Company (“CCP”) and the United Transportation Union (“UTU”) seeking declaratory and injunctive relief to prohibit the enforcement of an amendment to a collective bargaining agreement executed between CCP and UTU. On July 30, 1993, this Court stayed ruling on the pending cross-motions for summary judgment until such time as the Seventh Circuit issued an opinion in a nearly identical case, Dempsey v. Atchison, Topeka and Santa Fe Railway Co., 16 F.3d 832 (7th Cir.1994). The Seventh Circuit has now ruled on the issues raised in that ease concerning the validity under the Railway Labor Act of a similar side agreement entered into by a rail carrier and Defendant UTU which requires individuals who transfer out of the train service craft to pay a fee or dues to UTU if those individuals wish to continue to accumulate seniority while they are working outside the craft. As the Court realized when it stayed ruling on the pending motions, the Dempsey court’s opinion is disposi-tive of many of the issues raised here. For the reasons set forth below, the Court will grant Defendants’ motion for summary judgment and will deny Plaintiffs’ motion for summary judgment. BACKGROUND Defendant CCP is an interstate rail carrier within the meaning of Section 1 of the Rail way Labor Act (“RLA”), 45 U.S.C. § 151 et seq. Defendant UTU is a labor organization which serves as the exclusive bargaining representative for the category of employees commonly referred to as the train service craft. The train service craft includes CCP’s conductors, brakemen, yardmen and switch-men. Plaintiff BLE is a labor organization which serves as the exclusive collective bargaining representative for the engine service craft which includes CCP’s locomotive engineers. As is common, the collective bargaining agreements between CCP and UTU and between CCP and BLE contained a union shop provision requiring that employees join the" }, { "docid": "23086327", "title": "", "text": "21 will upset “the cost sharing scheme which was continued and fostered by the 1951 union shop amendments.” We disagree. On its face, Article 21 can neither constitute a union shop agreement by itself, nor an amendment to the ST-UTU agreement that violates Eleventh(c). Nothing in the language of Article 21 requires membership in UTU or any other union as a condition of employment. See Brotherhood of Locomotive Eng’rs v. Kansas City Southern Ry. Co., 26 F.3d 787, 793 (8th Cir.) (§ 152, Eleventh(c) applies only to a § 152, Eleventh(a) union shop agreement), cert. denied, — U.S. -, 115 S.Ct. 320, 130 L.Ed.2d 281 (1994); Dempsey v. Atchison, Topeka and Santa Fe Ry. Co., 16 F.3d 832, 838 (7th Cir.) (same), cert. denied, — U.S. -, 115 S.Ct. 82, 130 L.Ed.2d 35 (1994). Article 21 does not require an engineer to choose between dual union membership or unemployment; Article 21 simply requires an engineer to choose whether to retain and continue to accrue seniority in the train service craft. Wightman, 915 F.Supp. at 506. In ,Dempsey v. Atchison, Topeka and Santa Fe Ry. Co., 16 F.3d 832, 838 (7th Cir.1994), the Seventh Circuit faced a BLE challenge to a provision requiring engineers desirous of accumulating additional train service seniority to pay dues to UTU. Failure to pay, however, would not affect accrued seniority. In examining whether the provision constituted a union shop agreement, the Seventh Circuit relied in part on the fact that it did not require payment of dues to UTU in order to retain accrued seniority, implying that such a provision might constitute a union shop provision. Id. at 838 (citing NLRB v. Manitowoc Engineering Co., 909 F.2d 963, 969-71 (7th Cir.1990), cert. denied, Clipper City Lodge No. 516 v. NLRB, 498 U.S. 1083, 111 S.Ct. 954, 112 L.Ed.2d 1042 (1991)). Ultimately, the court concluded that the provision at issue did not create any conditions of continued employment, and therefore, did not constitute a § 152, Eleventh(a) union shop agreement. Id. In our view, the extra step Article 21 takes with respect to accrued seniority does not" }, { "docid": "23086331", "title": "", "text": "Co. v. Whirls, 331 U.S. 40, 53 n. 21, 67 S.Ct. 982, 988 n. 21, 91 L.Ed. 1328 (1947). Seniority, therefore, does not stem from the employer-employee relationship and by extension become an employment right, but rather from either a statute or the four corners of a collective bargaining agreement, in this case between a union and a carrier. National Labor Relations Bd. v. Whiting Milk Corp., 342 F.2d 8, 10-11 (1st Cir.1965). It is by now well established that in the absence of a contract creating seniority rights, they do not exist. See Dempsey, 16 F.3d at 839; United Food & Commercial Workers Int’l Union, AFL-CIO, Local 7 v. Gold Star Sausage Co., 897 F.2d 1022, 1026 (10th Cir.1990); Cooper v. General Motors Corp., 651 F.2d 249, 250 (5th Cir.1981) (citing cases); Local 1251 Int’l Union of United Auto., Aircraft and Agric. Implement Workers of Am., UAW v. Robertshaw Controls Co., 405 F.2d 29, 32-33 (2d Cir.1968) (citing cases) (overruling prior circuit precedent to the contrary). Seniority, like any other benefit deriving exclusively from collective bargaining agreements, does not vest in employees. Robertshaw, 405 F.2d at 33; McMullans v. Kansas, Okla. & Gulf Ry., 229 F.2d 50, 53 (10th Cir.1956). Instead, seniority rights are subject to revision or even abrogation with the termination or renegotiation of the collective bargaining agreement. Dempsey, 16 F.3d at 839; Robertshaw, 405 F.2d at 33; McMullans, 229 F.2d at 54. Any rights employees have in seniority, therefore, are tied directly to the terms of the labor agreement between the carrier and the union representing their craft. Nothing in the RLA changes this fundamental tenet of labor law. Dempsey, 16 F.3d at 840; McMullans, 229 F.2d at 53. We recognize that Article 21 may make it attractive for at least some engineers to choose UTU over BLE. We stop short, however, of equating a union’s successful negotiation of a potential competitive advantage over another union with the kind of compulsory dual unionism § 152, Eleventh(c) exists to prevent. See Whiting Milk, 342 F.2d at 11 (“Obtaining a benefit for employees may well encourage others to" }, { "docid": "23086330", "title": "", "text": "change membership to any other RLA recognized union, “without putting himself out of compliance with the membership requirement of a valid union shop agreement and thereby cause a loss of seniority and employment rights.” BLE’s argument requires us to determine whether § 152, Eleventh(c), in protecting against compulsory dual unionism, elevates seniority into a statutorily protected right employees may take with them as they move from craft to craft and union to union. By its own language, the RLA governs relations between carriers, unions and employees, and § 152, Eleventh(c) dictates the limits of what carriers and/or unions can demand of employees in a union, shop. Within those parameters, which include a prohibition on compulsory dual unionism, the RLA makes no mention of seniority, and notably fails to designate seniority as a protected employment right. In the absence of a legislative pronouncement to the contrary, union contracts typically define the scope and significance of seniority rights. Aeronautical Indus. Dist. Lodge v. Campbell, 337 U.S. 521, 526, 69 S.Ct. 1287, 1289-90, 93 L.Ed. 1513 (1949); Trailmobile Co. v. Whirls, 331 U.S. 40, 53 n. 21, 67 S.Ct. 982, 988 n. 21, 91 L.Ed. 1328 (1947). Seniority, therefore, does not stem from the employer-employee relationship and by extension become an employment right, but rather from either a statute or the four corners of a collective bargaining agreement, in this case between a union and a carrier. National Labor Relations Bd. v. Whiting Milk Corp., 342 F.2d 8, 10-11 (1st Cir.1965). It is by now well established that in the absence of a contract creating seniority rights, they do not exist. See Dempsey, 16 F.3d at 839; United Food & Commercial Workers Int’l Union, AFL-CIO, Local 7 v. Gold Star Sausage Co., 897 F.2d 1022, 1026 (10th Cir.1990); Cooper v. General Motors Corp., 651 F.2d 249, 250 (5th Cir.1981) (citing cases); Local 1251 Int’l Union of United Auto., Aircraft and Agric. Implement Workers of Am., UAW v. Robertshaw Controls Co., 405 F.2d 29, 32-33 (2d Cir.1968) (citing cases) (overruling prior circuit precedent to the contrary). Seniority, like any other benefit deriving exclusively from" }, { "docid": "23086320", "title": "", "text": "one of the national, RLA recognized railroad unions. See 45 U.S.C. §§ 152, Eleventh(a) and (c). ST and the unions with which it maintains collective bargaining agreements have established a union shop. Employment in the railroad industry revolves around crafts or classes of work, each of which is represented by a different union. Train service and engineer service constitute two such crafts. The former encompasses conductors, brakemen, trainmen and yardmen, and the latter includes primarily locomotive engineers. UTU represents the train service craft and BLE represents the engineer service craft. By practice, junior engineers advance from the ranks of the train service employees. Over the course of any given year, however, the amount of engineer work may fluctuate. During periods of reduced engineer work, junior engineers may have to return temporarily to train service in order to remain employed. Junior engineers, therefore, have an economic interest in maintaining their train service seniority. Prior to 1995, the UTU-ST collective bargaining agreement allowed non-UTU member engineers to continue to accrue train service seniority. In 1995, however, UTU negotiated a provision known as Article 21, which requires that employees moving from train service to engineer service pay dues to UTU in order to maintain and continue to accrue their train service seniority. When BLE objected to Article 21, ST offered it a similar provision which BLE rejected, apparently believing it to be of little value to its membership. BLE then challenged Article 21 on RLA grounds. It sought preliminary injunctive relief which the district court denied. Subsequently, on cross motions, the district court granted summary judgment in favor of UTU and ST. This appeal followed. Standard of Review We review the award of summary judgment de novo. Ortiz-Pinero v. Rivera-Arroyo, 84 F.3d 7, 11 (1st Cir.1996). Summary judgment is appropriate in the absence of a genuine issue of material fact, when the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c). Neither party may rely on conclusory allegations or unsubstantiated denials, but must identify specific facts deriving from the pleadings, depositions, answers to interrogatories, admissions and affidavits to" }, { "docid": "23086329", "title": "", "text": "create any conditions on employment different from the provision in Dempsey. As indicated, nothing on the face of Article 21 requires employees to belong to UTU in order to remain employed. Despite the fact that Article 21 takes the extra step of conditioning seniority retention and accrual on continued dues payment, an engineer who chooses BLE over UTU satisfies either of the UTU-ST or BLE-ST union shop requirements. To the extent, therefore, that Dempsey implies that a provision such as Article 21 might constitute a union shop agreement or amendment, we respectfully disagree. BLE, however, asserts that engineers who choose BLE over UTU run the risk of unemployment when shuttled back to train service, since they will have no train service seniority. According to BLE, this effectively forces those engineers at the lower end of the engineer seniority list either to belong to UTU and BLE, or to UTU instead of BLÉ, as a condition of continued employment at ST. BLE asserts that § Í52, Eleventh(c) allows a railroad employee in a union shop to change membership to any other RLA recognized union, “without putting himself out of compliance with the membership requirement of a valid union shop agreement and thereby cause a loss of seniority and employment rights.” BLE’s argument requires us to determine whether § 152, Eleventh(c), in protecting against compulsory dual unionism, elevates seniority into a statutorily protected right employees may take with them as they move from craft to craft and union to union. By its own language, the RLA governs relations between carriers, unions and employees, and § 152, Eleventh(c) dictates the limits of what carriers and/or unions can demand of employees in a union, shop. Within those parameters, which include a prohibition on compulsory dual unionism, the RLA makes no mention of seniority, and notably fails to designate seniority as a protected employment right. In the absence of a legislative pronouncement to the contrary, union contracts typically define the scope and significance of seniority rights. Aeronautical Indus. Dist. Lodge v. Campbell, 337 U.S. 521, 526, 69 S.Ct. 1287, 1289-90, 93 L.Ed. 1513 (1949); Trailmobile" }, { "docid": "12477018", "title": "", "text": "other in this case. Both Section 2, Third and Fourth have as their focus “the pre-certification rights and freedoms of unorganized employees.” Trans World, 489 U.S. at 440, 109 S.Ct. at 1234; National R.R. Passenger Corp. v. International Ass’n of Machinists & Aerospace Workers, 915 F.2d 43, 51 (1st Cir.1990). As the Dempsey court explained, Section 2, Fourth’s application to “post-certification” controversies is extremely limited and the RLA, itself, is wholly inexplicit as to scope of permissible “self-help” once parties have completed the RLA’s dispute resolution process. 16 F.3d at 841. Under these circumstances, the courts have intervened only in the unusual case where the plaintiff can show that the employer’s actions “strike a fundamental blow to union or employer activity and the collective bargaining process itself.” Trans World, 489 U.S. at 442, 109 S.Ct. at 1235; Dempsey, 16 F.3d at 841. Whether Rule 55 strikes such a fundamental blow is now the question. Defendants rely on the Chairman Hales’ affidavit in which he explains that the accelerating transfer of train service employees to engine service has lead to continued expenditure of resources and funds to protect the train service seniority of employees working outside the craft. For example, approximately 23 of the CCP engine service employees retain train service seniority. Of the 120 active train service employees, over a quarter are working outside of that craft. According to Hales, “the ‘seniority retention’ agreement was sought in order to provide that train service employees working outside the craft, but whose seniority was protected by UTU agreements, would pay fair support to the UTU as [the] labor organization that was maintaining those agreements.” In Dempsey, the Seventh Circuit found a similar statement sufficient evidence of the lack of anti-union animus to place the burden on the opponent to put forward evidence of such animus. 16 F.3d at 842-43. In addition, while we ignored Hales’ statements regarding the application of paragraph (b) when deciding whether Rule 55 is a union shop agreement, we do consider them here on the question of CCP’s and UTU’s intent. According to Hales, CCP and UTU do" }, { "docid": "3975625", "title": "", "text": "forced to join the union representing his craft if he is a member in good standing of a union representing another operating craft (yet he is always free to switch affiliation to any union for which he is eligible if he so chooses). BLE contends that Side Letter No. 3 is in substance a union shop agreement that requires dual union membership in violation of subparagraph (e). We disagree. Under § 2 Eleventh (a), a railroad and an authorized union are permitted “to make agreements, requiring, as a condition of continued employment that ... all employees shall become members of the labor organization representing their craft or class.” 45 U.S.C. § 152 Eleventh (a). Thus the RLA authorizes union shop agreements. Section 2 Eleventh (c), which provides that union shop agreements may be satisfied by membership in another union, is applicable only to a “requirement of membership in a labor organization in an agreement made pursuant to subparagraph (a).” 45 U.S.C. § 152 Eleventh (c) (emphasis added). “In other words, the prohibitions against dual unionism contained in Section 2, Eleventh (e) only kick in when the agreement at hand purports to be a union shop agreement made pursuant to Section 2, Eleventh (a).” Dempsey, 16 F.3d at 838. BLE argues that Side Letter No. 3 is in fact a subparagraph (a) agreement because it requires UTU membership “as a condition of continued employment” in substance if not in form or, in the alternative, because it modifies the collective bargaining agreement between UTU and KCS, which is a subparagraph (a) agreement, and thus should itself be treated as a subparagraph (a) agreement. We find those arguments unpersuasive. Membership in UTU is not a condition of continued employment under the terms of Side Letter No. 3. No engineer, regardless of whether he came to that position via train service, may be terminated for failure to join or to retain membership in UTU. No employee, returning to train service having joined BLE, may be terminated for declining to join UTU. No accumulated seniority in train service will be lost if a junior engineer/former" } ]

[ { "docid": "22577601", "title": "", "text": "SWAN, Circuit Judge. The taxpayer is a personal holding company. The Commissioner determined deficiencies in personal holding company surtaxes for the years 1941 and 1942 and added thereto a 25% penalty, pursuant to § 291 of the Internal Revenue Code, for petitioner’s failure to file personal holding company returns for those years. The sole question presented to the Tax Court and likewise here is whether the taxpayer’s failure to file personal holding company returns for the years in suit was “due to reasonable cause and not due to willful neglect”. The Tax Court held that it was not due to reasonable cause. “Reasonable cause” has been defined by the Regulations to mean that the taxpayer exercised ordinary business care and prudence. Treas.Reg. 103, § 19.291-1; see Southeastern Finance Co. v. Commissioner, 5 Cir., 153 F.2d 205; Girard Inv. Co. v. Commissioner, 3 Cir., 122 F.2d 843, 848, certiorari denied 314 U.S. 699, 62 S.Ct. 479, 86 L.Ed. 559, citing Klein, Federal Income Taxation 1674. In the case at bar Mr. Sprague, the taxpayer’s secretary-treasurer, requested a certified public accountant, Mr. Wolcott, who was competent to advise on tax matters, to prepare the proper corporate tax returns for the years 1941 and 1942. Sprague fully disclosed to Wolcott all necessary information about the corporation and Wolcott knew that the taxpayer was a personal holding company but “through inadvertence” did not inform Sprague of this fact nor submit to him a personal holding company surtax return. Sprague was aware of the personal holding company surtax statute but he had never studied its application and it did not occur to him that the petitioner was a personal holding company. He filed on behalf of the corporation only the returns prepared by Wolcott. Because Sprague did not “specifically inquire” of Wolcott “concerning the personal holding company status of petitioner” but “merely awaited passively for such tax advice as Wolcott might volunteer to give,” the Tax Court held, one judge dissenting, that petitioner had not sustained the burden of proving that ordinary business care and prudence were exercised in failing to file the personal holding" } ]

[ { "docid": "14240074", "title": "", "text": "the Service that the return would be filed no later than April 1, 1969. Here was another date entry to be noted on Kroll’s records. No return was filed by this date and the record discloses no effort or even inquiry on Kroll’s part to check as to whether that deadline had been met. And at least Kroll must have known that he had not signed a return as executor nor had he drawn an estate check for the tax. Despite this uncontradicted proof of Kroll’s awareness of the facts, the District Court concluded that Kroll was entitled to rely on Dill and he did so in good faith. With this conclusion we must disagree as completely unsupported by the facts and accordingly reverse the judgment below. Whether or not the taxpayer is liable for taxes is a question of tax law which often only an expert can answer. The taxpayer not only can, but must, rely on the advice of either an accountant or a lawyer. This reliance is clearly an exercise of ordinary business care and prudence. Such a situation is exemplified in this Circuit by the case of Commissioner of Internal Revenue v. American Ass’n of Engineers Employment, Inc., 204 F.2d 19 (7th Cir. 1953). In that case, the taxpayer corporation failed to file federal tax returns for five years, in reliance on the written opinion of a tax attorney that it was an exempt corporation. The Tax Court disapproved the 25% penalty imposed by the Commissioner, and this Court affirmed, stating: “We think that this is a case where the taxpayer did all that it was required to do and that it should not be penalized for an error made by its expert tax counsel in deciding a close question of law.” 204 F.2d at 21. An entirely different situation is presented where a penalty is assessed because a return, although filed, is filed after the due date. This situation often arises where the taxpayer knows that he must file a return, but entrusts the preparation and filing of the return to an attorney or an" }, { "docid": "12086053", "title": "", "text": "calculate her gift tax.” “But,” the IRS continues, “because Mrs. Ballard complied with § 483 and charged the minimum 6% interest, we will not use that 6% rate to calculate her gift taxes. We must use the market rate of 18%. And, if the court pleases, we do this because § 483 does not mean what it says.” This argument is akin to that made by Humpty Dumpty in Lewis Carrol’s Alice in Wonderland. “When I use a word,” Humpty Dumpty said in rather scornful tone, “it means just what I choose it to mean — neither more nor less.” Though perhaps well suited for a fairy tale, this sort of logic fails here. We conclude that § 483 meant what it clearly said, that it applied for the purposes of Title 26 which includes both income and gift tax provisions. Mrs. Ballard properly relied on the “safe harbor” rate of interest provided in § 483 when she filed her 1981 gift tax return. Consequently, the Commissioner’s assessment of gift taxes was improper. Having ruled that Mrs. Ballard owed no taxes, we must now determine whether a penalty should have been assessed for the untimely filing of Mrs. Ballard’s tax return. A taxpayer may avoid the mandatory penalty for an untimely filing of a return if the taxpayer is able to show reasonable cause for that delay. 26 U.S.C. § 6651(a) (1954). Under a recent Supreme Court decision, a taxpayer who does not file any return on the advice of his attorney has shown reasonable cause but a taxpayer who has been advised that a late filing will result in no penalty has not. United States v. Boyle, 469 U.S. 241, 105 S.Ct. 687, 83 L.Ed.2d 622 (1985); Jackson v. Commissioner, 86 T.C. 492 (1986). In certain cases, and we think this is such a case, this distinction would seem incongruous. Mrs. Ballard, a 68 year old widow, relied on the written legal advice of her attorney. When she filed a late return, she did not, as the Commissioner argued in his brief, “cavalierly ignore the due date of her" }, { "docid": "18947093", "title": "", "text": "not managed by Brown. Respondent also allowed $5,000 for each petitioner per year. We agree with respondent’s determination. The prevailing rate charged by professional management agencies in the Greensboro area was 6 percent. We think this figure represents an arm’s-length rate and is controlling in the instant case. See Place v. Commissioner, 17 T.C. 199, 203 (1951), affd. per curiam 199 F.2d 373 (6th Cir. 1952), cert. denied 344 U.S. 927 (1953); Stanwick’s, Inc. v. Commissioner, 15 T.C. 556, 560-561 (1950), affd. per curiam 190 F.2d 84 (4th Cir. 1951); Limericks, Inc. v. Commissioner, 7 T.C. 1129, 1134 (1946), affd. 165 F.2d 483 (5th Cir. 1948). The additional amount allowed by respondent, $10,000 for each year in issue, is certainly reasonable in the light of the trial record. 4. The Delinquency Penalty Issue Section 6651(a)(1) provides that failure to timely file a Federal income tax return results in a penalty of 5 percent per month up to a maximum of 25 percent “unless it is shown that such failure is due to reasonable cause and not due to willful neglect.” Whether petitioners have reasonable cause for failing to timely file their returns is a question of fact, and petitioners have the burden of proving that reasonable cause exists. Ferrando v. United States, 245 F.2d 582, 589 (9th Cir. 1957). Petitioners argue that their failure to file timely returns may be excused because they relied upon an attorney hired by their parent corporation and an accounting firm hired by the receivers to file their returns. We disagree. The general rule is that the filing of a return when due is the personal, nondelegable duty of the taxpayer and reliance upon an accountant or attorney to so file is no excuse for late filing. Logan Lamber Co. v. Commissioner, 365 F.2d 846, 854 (5th Cir. 1966), affg. on this issue a Memorandum Opinion of this Court; Ferrando v. United States, supra at 589. A taxpayer who has failed to file a timely return may demonstrate reasonable cause by showing that he acted in good faith reliance upon the advice of an attorney" }, { "docid": "13335225", "title": "", "text": "because we cannot hold on this record that the findings of the Tax Court are clearly erroneous. Rule 52(a), Fed.R. Civ.P. Commissioner of Internal Revenue v. Duberstein, 363 U.S. 278, (1960); Estate of Frank Duttenhofer v. 289-291, 80 S.Ct. 1190, 4 L.Ed.2d 1218 Commissioner, 49 T.C. 200, 204 (1967), aff’d, 410 F.2d 302 (6th Cir. 1969). Compare, In re Fisk’s Estate, 203 F.2d 358, 359 (6th Cir. 1953). Although we affirm, we do so unenthusiastically. The opinion of the Tax Court contains language critical of the “entirely passive role” of the executrix, 32 CCH Tax Ct. Mem. at 426, which we believe is unjustified. It was stipulated that the executrix was a housewife who had no income of her own. She had little or no business experience and it was further stipulated that she relied entirely on the attorney for the estate, a kinsman of her deceased husband, to file the federal estate tax return. Counsel for the executrix states as follows in his reply brief: “[DJiscussions were had [between the executrix and him] as to what had to be done and when. It would be unrealistic to assume that there was no discussion between the Executrix and the attorney as to what had to be done and when, how much money would have to be set aside for this tax and that tax, etc.” (Emphasis in original.) Further, counsel for the executrix states that after his illness he went to the office of the Estate and Gift Tax Group of the Cleveland District of the Internal Revenue Service (IRS), presumably prior to August 28, 1968, and orally requested an extension of time to file the estate tax return. Counsel states that an IRS employee informed him that the penalty set forth in the statute was seldom enforced where the return was filed within a reasonable time and there was some reason for delay. Counsel did not make the application for extension of time in writing as required by Treas. Reg. § 1.6081-1 (b) (1), and there is no verification in the record of any aspect of his conversation with" }, { "docid": "13116492", "title": "", "text": "Commissioner, 2 Cir., 178 F.2d 769, 771, the court said: “When a corporate taxpayer selects a competent tax expert, supplies him with all necessary information, and requests him to prepare proper tax returns, we think the taxpayer has done all that ordinary business care and prudence can reasonably demand.” In Burton Swartz Land Corp. v. Commissioner, 5 Cir., 198 F.2d 558, a corporate taxpayer did not file returns on the advice of a competent tax accountant. In finding that in such a case the imposition of penalties was not proper, the court said, 198 F.2d at page 560: “It is now well settled that the advice of a competent accountant constitutes ‘reasonable cause’ for failure to file a tax return, and that a taxpayer who in good faith acts upon such advice, after full disclosure to the accountant, is not guilty of wilful neglect. Such a taxpayer will not be penalized for the accountant’s error. (Citing cases.)” Mr. H. A. Wagner, who was connected with the taxpayer and who had been looking after the service department for 25 years, testified that the petitioner did not file tax returns because, “We were advised by counsel that we were exempt and did not have to file.” Mr. Wagner said that their tax counsel gave them this advice in March 1933. This witness also said that the tax counsel he called was Mr. John E. Hughes, Sr., that the witness thought that several years prior to 1933 Mr. Hughes had given them a written opinion stating that the company was exempt but that he (Mr. Wagner) did not know where the written opinion was. While this testimony was rather meager, there was no denial of it in any way. Counsel for the Commissioner contends that since the written opinion of the attorney was not in evidence, that since the testimony concerning it was not positive, and that since we are not informed as to what the attorney knew about the taxpayer or as to what information the taxpayer had furnished the attorney, we may only consider the attorney’s statement that the taxpayer was" }, { "docid": "2331326", "title": "", "text": "it has presented itself on appeal. See Roberts, 860 F.2d at 1239-40 (knowledge of exact amount of compensation from a known income-producing activity not required in order to have knowledge of an item of community income under § 66(c)), aff'g 54 T.C.M. (CCH) 94 (1987). Taxpayer was aware that her husband earned income from his dental practice, although she did not know the exact amount. She was aware of Taehe’s irresponsible behavior in financial matters, yet never questioned him regarding the amounts he earned from his dental practice or whether tax returns were being timely filed. She made no effort to review tax documents before signing them. Furthermore, taxpayer testified at trial that she could have determined Taehe’s income for the years at issue by asking Epstein. On the whole, she did not act as a reasonably prudent person with an equal level of knowledge would under the surrounding circumstances with regard to determining the amount of Dr. Taehe’s income for the years in question. See Sanders, 509 F.2d at 166-67; cf. Erdahl v. Commissioner, 930 F.2d 585 (8th Cir.1991) (innocent spouse relief is “designed to protect the innocent, not the intentionally ignorant”) (quoting Cohen v. Commissioner, 54 T.C.M. (CCH) 944, 947 (1987)). Accordingly, we find that the tax court did not commit clear error when it found that taxpayer knew or should have known of the item of community income, and was, therefore, not entitled to relief as an innocent spouse under § 66(c). B. Additions to Tax 1. Section 6651(a)(1) The tax court found taxpayer liable for additions’ to tax under I.R.C. § 6651(a)(1) which imposes a civil penalty for failure to file a timely return, unless it is shown that the failure to file was due to reasonable cause and not due to willful neglect. Taxpayer argued to the tax court that she had reasonable cause to rely on Tache and Epstein, a partner in a national accounting firm, to file tax documents and payments in a timely manner and should therefore not be subject to a penalty for failure to file. The tax court, however, found" }, { "docid": "4828616", "title": "", "text": "and to conduct financial transactions. What is more, we strongly suspect that the petitioner has in fact used them for such purpose — when she purchases her groceries or pays for her other necessities of life with Federal Reserve notes, she is using legal tender, not accounts receivable. The petitioner has the burden of proving that she did not receive the income determined by the Commissioner. Rule 142(a), Tax Court Rules of Practice and Procedure; Welch v. Helvering, 290 U.S. 111 (1933). Since she offered no evidence to refute such determination, she has failed to carry her burden of proof, and we must sustain the Commissioner’s determination of deficiency based on the receipt of such income. It also follows that the petitioner was required under section 6012 to file a return for such year. The law is well established that a Form 1040 which discloses no information relating to a taxpayer’s income and deductions does not constitute a \"return” within the meaning of section 6012. Commissioner v. Lane-Wells Co., 321 U.S. 219 (1944); Cupp v. Commissioner, 65 T.C. at 79-80; Hosking v. Commissioner, 62 T.C. 635, 639 (1974); Houston v. Commissioner, 38 T.C. 486, 491-492 (1962); see also United States v. Daly, supra (upholding a criminal conviction for the willful failure to file returns with regard to Forms 1040 not substantially different from those herein); United States v. Porth, supra. Hence, the petitioner did not file a 1974 tax return, and the addition to the tax for her failure to file a timely tax return was properly imposed since she offered no excuse for such failure. Sec. 6651(a); Electric & Neon, Inc. v. Commissioner, 56 T.C. 1324 (1971), affd. without opinion 496 F.2d 876 (5th Cir. 1974); Zivnuska v. Commissioner, 33 T.C. 226, 239 (1959); Estate of Derby v. Commissioner, 20 T.C. 164, 170 (1953). In light of the petitioner’s failure of proof, the Commissioner’s imposition of additions to the tax under sections 6653(a) and 6654 must also be upheld. Rule 142, Tax Court Rules of Practice and Procedure; Vaira v. Commissioner, 444 F.2d 770 (3d Cir. 1971), affg. on" }, { "docid": "2331329", "title": "", "text": "F.2d at 1240-42; Internal Revenue Manual (CCH) § 4562.2 (Feb. 25, 1987). 2. Sections 6653(a)(1) & (2) The tax court likewise sustained the Commissioner’s determination that taxpayer is liable for additions to tax under I.R.C. §§ 6653(a)(1) & (2), which provide for additions to tax if an underpayment of tax required to be shown on a return is due to negligence. Taxpayer relies on the same argument that she asserted regarding the imposition of the § 6651(a)(1) penalty — that her failure to file was reasonable and therefore her underpayment was not negligent. We cannot conclude that the tax court’s finding is clear error. Negligence is any failure to reasonably attempt to comply with the tax code, including a lack of due care or failure to do what a reasonable and ordinarily prudent person would do under the circumstances. Portillo v. Commissioner, 932 F.2d 1128, 1135 (5th Cir.1991); Marcello v. Commissioner, 380 F.2d 499 (5th Cir.1967), cert. denied, 389 U.S. 1044, 88 S.Ct. 787, 19 L.Ed.2d 835 (1968). There is no evidence to support taxpayer’s claim that she acted reasonably under the circumstances or that she made any bona fide effort to attempt to comply with her obligation to report her one-half share of community income. As a result, taxpayer failed to meet her burden of proof with regard to this issue. See Masat v. Commissioner, 784 F.2d 573, 576-77 (5th Cir.1986); Marcello, 380 F.2d at 506. III. Based on the record before us, we cannot conclude that any of the tax court’s disputed findings were clearly erroneous. AFFIRMED. . Tache had just formed his own private dental practice in 1978. Not yet being established, it took a few years for his practice to begin generating significant income. From the time of its inception, however, the practice’s financial management and record keeping were in disarray. This financial disorganization remained a chronic problem of which taxpayer was aware. . Tache’s irresponsibility regarding these matters is the reason that taxpayer took over paying the household bills starting in 1979. . The divorce decree specifically addressed the payment of any federal income tax" }, { "docid": "12778712", "title": "", "text": "S.Ct. 364, 87 L.Ed. 418 (1943). It is true that an accountant, since deceased, prepared the returns. But this does not absolve taxpayer where on a question of credibility the Tax Court decided the accountant prepared the returns from records supplied by taxpayer, and from incomplete records resulting in false returns. Drieborg v. Commissioner of Internal Revenue, 225 F.2d 216, 219 (6th Cir. 1955). We conclude, for the several reasons given, that the record furnishes clearly and convincingly the basis for the inferences of fraud, and we approve the decision of the Tax Court that taxpayer filed the false returns for the years 1950 through 1957 with the fraudulent intent to avoid payment of income taxes. Affirmed. . Int.Rev.Code of 1939, § 293(b), and Int.Rev.Code of 1954, § 6653(b), provide for a penalty tax of 50% of a deficiency \"winch, is in any part due to fraud with intent to evade tax. The decision of the Tax Court finds these deficiencies and penalties: Addition to Tax-1939 Code Year Deficiency Sec. 294(d) (1) (A) Sec. 293(b) 1950 $ 2,452.80 $ 239.40 $ 1,226.40 1951 912.60 111.82 456.30 1952 1,157.99 107.53 579.00 1953 1,917.95 None 958.98 Addition to Tax-1954 Code Year Deficiency Sec. 6653(b) 1954 $ 4,406.04 $ 2,203.02 1955 5,678.88 2,839.44 1956 12,515.61 6,257.81 1957 5,838.86 2,919.43 Taxpayers have not challenged the additions to tax under § 294(d) (1) (A) of the 1939 Code (failure to file declaration) for the years 1950-52. . Eugenia Gromacki is a party only because she joined with her husband in filing a joint return in 1953,1955,1956 and 1957. . Using the bank deposits plus cash expenditures method, the court found the following: 1954 1955 1956 1957 Corrected gross receipts $44,888.35 $72,513.94 $98,077.56 $91,167.70 Less: reported gross receipts 34,966.57 50,560.30 78,170.50 71,790.00 Unreported gross receipts $ 9,921.78 $21,953.64 $19,907.06 $19,377.70 Respondent had determined additional business receipts for these four years, respectively, of $12,931.78, $23,453.64, $20,607.06, and $20,077.70. The difference is due mainly to the court’s use of a lower dollar amount for estimated personal expenses paid by cash — a difference, we note, in taxpayer’s favor." }, { "docid": "14240075", "title": "", "text": "business care and prudence. Such a situation is exemplified in this Circuit by the case of Commissioner of Internal Revenue v. American Ass’n of Engineers Employment, Inc., 204 F.2d 19 (7th Cir. 1953). In that case, the taxpayer corporation failed to file federal tax returns for five years, in reliance on the written opinion of a tax attorney that it was an exempt corporation. The Tax Court disapproved the 25% penalty imposed by the Commissioner, and this Court affirmed, stating: “We think that this is a case where the taxpayer did all that it was required to do and that it should not be penalized for an error made by its expert tax counsel in deciding a close question of law.” 204 F.2d at 21. An entirely different situation is presented where a penalty is assessed because a return, although filed, is filed after the due date. This situation often arises where the taxpayer knows that he must file a return, but entrusts the preparation and filing of the return to an attorney or an accountant. Any layman with the barest modicum of business experience knows that there is a deadline for the filing of returns and knows that he must sign the return before it is filed. If, in addition, the taxpayer in a given case knows the exact date of the deadline, then the failure of his attorney or accountant to present him with the return for his signature before that date must put him on notice that reliance on the attorney or accountant is not an exercise of ordinary business care and prudence. This situation is exemplified in the Fifth Circuit case, Logan Lumber Co. v. Commissioner of Internal Revenue, 365 F.2d 846 (5th Cir. 1966). In that case, the Fifth Circuit upheld the assessment of a penalty for a late filing, over the taxpayer corporation’s claim of reliance on its accountant. The Court held that this reliance was unfounded in light of the fact that the company’s treasurer had signed a “tentative return” two days before the due date, indicating that he was aware of the" }, { "docid": "22639336", "title": "", "text": "taxpayer has relied on the erroneous advice of counsel concerning a question of law. Courts have frequently held that “reasonable cause” is established when a taxpayer shows that he reasonably relied on the advice of an accountant or attorney that it was unnecessary to file a return, even when such advice turned out to have been mistaken. See, e. g., United States v. Kroll, 547 F. 2d 398, 395-396 (CA7 1977); Commissioner v. American Assn. of Engineers Employment, Inc., 204 F. 2d 19, 21 (CA7 1953); Burton Swartz Land Corp. v. Commissioner, 198 F. 2d 558, 560 (CA5 1952); Haywood Lumber & Mining Co. v. Commissioner, 178 F. 2d, at 771; Orient Investment & Finance Co. v. Commissioner, 83 U. S. App. D. C., at 75, 166 F. 2d, at 603; Hatfried, Inc. v. Commissioner, 162 F. 2d, at 633-635; Girard Investment Co. v. Commissioner, 122 F. 2d, at 848; Dayton Bronze Bearing Co. v. Gilligan, 281 F. 709, 712 (CA6 1922). This Court also has implied that, in such a situation, reliance on the opinion of a tax adviser may constitute reasonable cause for failure to file a return. See Commissioner v. Lane-Wells Co., 321 U. S. 219 (1944) (remanding for determination whether failure to file return was due to reasonable cause, when taxpayer was advised that filing was not required). When an accountant or attorney advises a taxpayer on a matter of tax law, such as whether a liability exists, it is reasonable for the taxpayer to rely on that advice. Most taxpayers are not competent to discern error in the substantive advice of an accountant or attorney. To require the taxpayer to challenge the attorney, to seek a “second opinion,” or to try to monitor counsel on the provisions of the Code himself would nullify the very purpose of seeking the advice of a presumed expert in the first place. See Haywood Lumber, supra, at 771. “Ordinary business care and prudence” do not demand such actions. By contrast, one does not have to be a tax expert to know that tax returns have fixed filing dates and" }, { "docid": "13335224", "title": "", "text": "return is tardy, not to exceed 25 per cent. The 15 per cent addition in the present case was determined on the basis of the appellant’s return being filed two months and one day late. The appellant petitioned the United States Tax Court wherein she asserted that the following three reasons were sufficient to constitute reasonable cause for the tardy filing of the return: 1) The executrix, a housewife with no income of her own and little or no business experience, relied entirely on the attorney for the estate to file the return; 2) The attorney was incapacitated by illness during June and July of 1968; 3) The attorney was under the mistaken impression that “the return was due 15 months from the date of the appointment of the executrix rather than the date of death.” The Tax Court, in an opinion prepared by Judge Theodore Tannenwald, Jr., found that the above factors did not constitute reasonable cause for the failure to timely file the return. 32 CCH Tax Ct. Mem. 424 (1973). We affirm because we cannot hold on this record that the findings of the Tax Court are clearly erroneous. Rule 52(a), Fed.R. Civ.P. Commissioner of Internal Revenue v. Duberstein, 363 U.S. 278, (1960); Estate of Frank Duttenhofer v. 289-291, 80 S.Ct. 1190, 4 L.Ed.2d 1218 Commissioner, 49 T.C. 200, 204 (1967), aff’d, 410 F.2d 302 (6th Cir. 1969). Compare, In re Fisk’s Estate, 203 F.2d 358, 359 (6th Cir. 1953). Although we affirm, we do so unenthusiastically. The opinion of the Tax Court contains language critical of the “entirely passive role” of the executrix, 32 CCH Tax Ct. Mem. at 426, which we believe is unjustified. It was stipulated that the executrix was a housewife who had no income of her own. She had little or no business experience and it was further stipulated that she relied entirely on the attorney for the estate, a kinsman of her deceased husband, to file the federal estate tax return. Counsel for the executrix states as follows in his reply brief: “[DJiscussions were had [between the executrix and him] as" }, { "docid": "13932923", "title": "", "text": "the taxpayer’s shortage of funds is not reasonable cause for the purposes of the statute. See e.g. Jones v. Commissioner, 25 T.C. 1100 (1956), rev’d on other grounds 259 F.2d 300 (5th Cir.1958); Jane S. Langston, ¶ 77,421 P-H Memo. T.C. (1977) and Joseph P. Delfino, ¶ 81,657 P-H Memo. T.C. (1981). In an action to contest or set aside the assessment of the penalties at issue here, it is well settled that the taxpayer has the burden of proving that it had reasonable cause for not complying with the statute. Geraci v. Commissioner, 502 F.2d 1148, 1149 (6th Cir.1974). While the elements necessary to constitute reasonable cause is a question of law, the question of whether reasonable cause exists in any particular case is a question for the trier of fact. In re Fisk’s Estate, 203 F.2d 358 (6th Cir.1953); Glenwal-Schmidt v. United States, supra. In resolving disputes regarding the Internal Revenue Code, the regulations developed by the Secretary of the Treasury have the effect of law, particularly when those regulations have been in existence for a substantial time without amendment to either the regulations or the statutes from which those regulations are derived. Joseph Gann, Inc. v. Commissioner, 701 F.2d 3 (1st Cir.) cert. denied, 464 U.S. 821, 104 S.Ct. 85, 78 L.Ed.2d 94 (1983). We agree with the IRS that the debtor has not shown sufficient cause to warrant excusing it from liability for the penalty assessed under 26 U.S.C. § 6651(a)(1) for failure to timely file its tax returns. Mr. Varga testified that his failure to timely file the tax returns for the debtor when it could not pay the tax in part or in full was due to gross misjudgment on his part and to his former accountant’s erroneous advice. He stated that he never knew that he was required to file the returns notwithstanding the debtor’s inability to pay the tax. A taxpayer’s financial difficulties may or may not present reasonable cause for failure to actually pay the tax; however, financial difficulties have no effect on a taxpayer’s ability to file returns in a" }, { "docid": "12086054", "title": "", "text": "that Mrs. Ballard owed no taxes, we must now determine whether a penalty should have been assessed for the untimely filing of Mrs. Ballard’s tax return. A taxpayer may avoid the mandatory penalty for an untimely filing of a return if the taxpayer is able to show reasonable cause for that delay. 26 U.S.C. § 6651(a) (1954). Under a recent Supreme Court decision, a taxpayer who does not file any return on the advice of his attorney has shown reasonable cause but a taxpayer who has been advised that a late filing will result in no penalty has not. United States v. Boyle, 469 U.S. 241, 105 S.Ct. 687, 83 L.Ed.2d 622 (1985); Jackson v. Commissioner, 86 T.C. 492 (1986). In certain cases, and we think this is such a case, this distinction would seem incongruous. Mrs. Ballard, a 68 year old widow, relied on the written legal advice of her attorney. When she filed a late return, she did not, as the Commissioner argued in his brief, “cavalierly ignore the due date of her return.” Certainly, it would have been more prudent to file a request for an extension of time. However, there is nothing in the record which would indicate that Mrs. Ballard willfully refused to do so. Rather, it appears her failure to timely file was the result of her attorney’s advice and as such, it would seem inequitable to penalize Mrs. Ballard — especially since she owed no taxes. Nevertheless, our hands are tied by the Boyle decision. Mrs. Ballard, by relying on her attorney's advice that no penalty would result from a late filing, has not shown reasonable cause for her delay. Accordingly, the imposition of a penalty, pursuant to § 6651 of the Code, technically was proper. However, the amount of the penalty assessed against Mrs. Ballard must be based on the amount of taxes she owed. 26 U.S. C. § 6651(a)(1). Because we have found that Mrs. Ballard owes no “additional” gift taxes, and because no gift taxes were ever owed under Mrs. Ballard’s original gift tax return, no penalty can be assessed." }, { "docid": "738510", "title": "", "text": "loss carry-back allowed, the Eighth Circuit had this to say; “The tax for 1943 became due and payable on the date the taxpayer was required to file her 1943 return, and the penalties became due and payable on the same date. The carryback provision does not relieve the taxpayer of the obligation to pay the tax in full when it falls due, and can not be interpreted as deferring taxpayer’s duty to pay the tax promptly. Manning v. Seeley Tube & Box Co., 338 U.S. 561, 70 S.Ct. 386, 94 L.Ed. 346. In the case just cited the Court held that where a deficiency and interest have been assessed, a subsequent carryback loss which abates the deficiency does not abate the in terest assessed. The reasoning of the Manning case supports the fraud and delinquency penalties here determined. The decision upon this issue also finds support in other cases. See C. V. L. Corporation v. Commissioner, 17 T.C. 812; Auerbach Shoe Co. v. Commissioner, 21 T.C. 191, affirmed, 1 Cir., 216 F.2d 693; Nick v. Dunlap, 5 Cir., 185 F.2d 674; Petterson v. Commissioner, 19 T.C. 486.” Simon v. Commissioner, 8 Cir., 1957, 248 F.2d 869, at page 877. As this quotation reflects, this Court has taken a like view. Nick v. Dunlap, 5 Cir., 1950, 185 F.2d 674. A taxpayer may not, with impunity, wilfully make false deductions in an attempt to evade the 1953 tax, and which has the actual effect of reducing the tax imposed for that year, after taking into account all deductions that are then available, whether claimed or not, because fortuitously in 1955 a loss occurs, which for tax purposes can be carried back to wipe out the 1953 liability. We think the crime is complete when with wilful intent, a false and fraudulent return is filed for a year as to which, with all benefits arising out of events up to that time taken in his favor, there would still be a tax due by him but for the fraud. Such tax is, in our opinion, the “tax imposed by this chapter.” Any" }, { "docid": "17147414", "title": "", "text": "it correct in principle and the order of the Board in this respect is reversed. The dispute as to income from the sale of dramatic rights relates only to royalties received from the licensing for dramatization of the copyrighted work entitled “Scaramouche”. Advance royalty was received in a lump sum together with additional royalties accruing from time to time. The Board held this income taxable and we agree that it was. As the taxpayer no long er questions that, no more need be said about it. It is also contended that Mr. Sabatini was innocently mistaken as to the necessity for filing tax returns and no penalties should have been imposed. There is, indeed, no reason to believe that he intended any tax evasion whatever. The government argues that the imposition of the penalties was ■ mandatory but that is only where no returns are filed at all. Edmonds v. Commissioner, 9 Cir., 90 F.2d 14, 18. Here returns were filed late after the controversy arose and the imposition of penalties depends upon whether the failure to file on time was due to reasonable cause or to willful neglect. The burden to excuse the failure was on the taxpayer and the Board has found that no reasonable cause for the failure to file returns was shown. The taxpayer may well have believed that he was liable for no taxes and yet have had no reasonable cause for not filing timely returns. At any rate there is no basis in this record sufficient to warrant a reversal of the Board on this point. One other issue of a most unusual nature remains. The taxpayer employed a tax expert in this country to represent him after his controversy with the government arose. This man apparently forged a letter addressed to the taxpayer in care of the expert to the effect that after careful consideration had been given the matter in the office of the Commissioner it had been held that no deficiency existed. On the strength of that, he collected his fee from Mr. Sabatini. Later the expert employed a reputable attorney" }, { "docid": "13116491", "title": "", "text": "our consideration only the question of whether the Tax Court correctly decided that the Commissioner should not.have assessed penalties 'against the taxpayer because of its failure to file returns. Title 26 U.S.C.A. § 291, provides that for failure to make 'and file returns within the time prescribed by law penalties shall be added “unless it is shown that such failure is due to reasonable cause and not due to willful neglect”. The Tax Court expressly found that the failure of the taxpayer to file returns here was “due to the belief, in good faith and on the advice of a reputable tax attorney, that petitioner was an exempt corporation and was not willful.” The Commissioner contends that the evidence does not sustain this finding. As we .pointed out above, the parties stipulated before the Tax Court that the taxpayer’s- tax counsel was an attorney who had specialized in federal taxation for more than 25 years and that he had had wide experience in tax cases before the courts. In Haywood Lumber & Mining Co. v. Commissioner, 2 Cir., 178 F.2d 769, 771, the court said: “When a corporate taxpayer selects a competent tax expert, supplies him with all necessary information, and requests him to prepare proper tax returns, we think the taxpayer has done all that ordinary business care and prudence can reasonably demand.” In Burton Swartz Land Corp. v. Commissioner, 5 Cir., 198 F.2d 558, a corporate taxpayer did not file returns on the advice of a competent tax accountant. In finding that in such a case the imposition of penalties was not proper, the court said, 198 F.2d at page 560: “It is now well settled that the advice of a competent accountant constitutes ‘reasonable cause’ for failure to file a tax return, and that a taxpayer who in good faith acts upon such advice, after full disclosure to the accountant, is not guilty of wilful neglect. Such a taxpayer will not be penalized for the accountant’s error. (Citing cases.)” Mr. H. A. Wagner, who was connected with the taxpayer and who had been looking after the service" }, { "docid": "738509", "title": "", "text": "to strike something like an average taxable income computed over a period longer than one year.” 353 U.S. 385, 77 S.Ct. 993. This loss taxpayer “set off its lean years” by having them wiped out in reorganization proceedings. We conclude therefore that on the undisputed facts tendered by Willing-ham’s proffer of evidence to show that there was no tax due for 1952 and 1953, evidence of losses incurred in 1949 and 1950 was not admissible. We next come to the claim that a loss sustained in 1955 should have been carried back to 1953, and that if this had been done no tax would be due for that year. This would not affect the 1952 conviction, but would be a defense to the 1953 charge. Whatever problems there might be as to loss carry-overs, there can be no difficulties as to loss carry-backs. They operate retrospectively to reduce or extinguish a tax previously due. In an analogous situation imposing the 50% civil penalties on the whole of the initial deficiency with no reduction from the loss carry-back allowed, the Eighth Circuit had this to say; “The tax for 1943 became due and payable on the date the taxpayer was required to file her 1943 return, and the penalties became due and payable on the same date. The carryback provision does not relieve the taxpayer of the obligation to pay the tax in full when it falls due, and can not be interpreted as deferring taxpayer’s duty to pay the tax promptly. Manning v. Seeley Tube & Box Co., 338 U.S. 561, 70 S.Ct. 386, 94 L.Ed. 346. In the case just cited the Court held that where a deficiency and interest have been assessed, a subsequent carryback loss which abates the deficiency does not abate the in terest assessed. The reasoning of the Manning case supports the fraud and delinquency penalties here determined. The decision upon this issue also finds support in other cases. See C. V. L. Corporation v. Commissioner, 17 T.C. 812; Auerbach Shoe Co. v. Commissioner, 21 T.C. 191, affirmed, 1 Cir., 216 F.2d 693; Nick v." }, { "docid": "2331327", "title": "", "text": "930 F.2d 585 (8th Cir.1991) (innocent spouse relief is “designed to protect the innocent, not the intentionally ignorant”) (quoting Cohen v. Commissioner, 54 T.C.M. (CCH) 944, 947 (1987)). Accordingly, we find that the tax court did not commit clear error when it found that taxpayer knew or should have known of the item of community income, and was, therefore, not entitled to relief as an innocent spouse under § 66(c). B. Additions to Tax 1. Section 6651(a)(1) The tax court found taxpayer liable for additions’ to tax under I.R.C. § 6651(a)(1) which imposes a civil penalty for failure to file a timely return, unless it is shown that the failure to file was due to reasonable cause and not due to willful neglect. Taxpayer argued to the tax court that she had reasonable cause to rely on Tache and Epstein, a partner in a national accounting firm, to file tax documents and payments in a timely manner and should therefore not be subject to a penalty for failure to file. The tax court, however, found that taxpayer’s failure to file was not due to reasonable cause and sustained the penalty. We cannot find that tax court’s conclusion rests on findings of fact that are clearly erroneous. The record shows that taxpayer knew Tache was “immature” and “irresponsible” in his handling of tax and financial matters, and that Epstein communicated his concern to taxpayer about Tache’s failure to comply with taxation-related requirements. Taxpayer was fully aware of her obligation to file federal income tax returns, an obligation which she effectively ignored. Furthermore, failure to timely file a tax return is not excused by reliance on an agent, and such reliance is not a reasonable cause for late filing under § 6651(a)(1). United States v. Boyle, 469 U.S. 241, 252, 105 S.Ct. 687, 692, 83 L.Ed.2d 622 (1985). Taxpayer cannot, therefore, rest on the actions of Tache and Epstein, regardless of how reliable or unreliable they are, to comply with this nondelegable duty. Accordingly, we cannot say that the tax court’s findings as to reasonable cause constitute clear error. See Roberts, 860" }, { "docid": "1229437", "title": "", "text": "insureds were foreign or domestic. Consequently, Northumberland has not carried its burden of proof, and the tax assessments made by the I.R.S. on the assumption that all of the risks are situated in the United States will stand. ASSESSMENT OF PENALTIES The Government has assessed penalties against Northumberland for failing to file and pay the tax due. The assessments, made pursuant to § 6651(a)(1) (failure to file) and § 6651(a)(2) (failure to pay) are mandatory unless it is shown that the taxpayer’s failure was due to reasonable cause and not the result of willful neglect. See 26 U.S.C. § 6651, Estate of Geraci v. Commissioner of Internal Revenue, 502 F.2d 1148, 1149 (6th Cir. 1974), cert. denied, 420 U.S. 992, 95 S.Ct. 1428, 43 L.Ed.2d 673 (1975). Northumberland contends that penalties are not justified in the instant case because substantial issues of law and fact existed which could easily cause reasonable men to differ as to whether any tax was due. See Dillin v. Commissioner, 56 T.C. 228, 248 (1971). The Third Circuit has held that reasonable cause means nothing more than the exercise of ordinary business care and prudence. See Sanderling v. Commissioner of Internal Revenue, 571 F.2d 174, 179 (3d Cir. 1978); Hatfried, Inc. v. Commissioner, 162 F.2d 628 (3d Cir. 1947). See also Ferrando v. United States, 245 F.2d 582 (9th Cir. 1957); Southeastern Finance Co. v. Commissioner, 153 F.2d 205 (5th Cir. 1946). Relying on the standard as so articulated, this Court finds that Northumberland has shown that it failed to file excise tax returns and failed to pay the excise tax for reasonable cause. Mr. Schurr, an accountant and Treasurer of the International Insurance Holdings Corporation Group, which, through one of its subsidiaries, managed the business affairs of Northumberland during the years in question, and which had been involved with the AIM RENorthumberland contract as well as the 1973 Technical Advice memorandum, testified that his company had advised Northumberland not to pay the excise tax on the AIM RE transaction. This advice was based on the company’s belief that the excise tax did not apply" } ]

[ { "docid": "15816730", "title": "", "text": "the petition. On November 21, 1985, the District Court denied petitioner’s motion for certificate of probable cause. This Court granted the certificate on January 30, 1986. This appeal followed. I. DE NOVO REVIEW Petitioner argues that the District Court erred in not granting de novo review of his objections to the Magistrate’s report. Petitioner made a blanket objection to the Magistrate’s report and recommendation, stating: “The undersigned objects to each and every finding of the Magistrate and requests that the court conduct a de novo review of the record.” Joint Appendix at 118. Petitioner then stated somewhat more specific objections to the District Court’s failure to appoint counsel, and the state court’s instructions to the jury on circumstantial evidence and on the elements of the offense of theft under Ohio law, concluding with: “Petitioner also objects to the other findings and recommendations of the Magistrate and requests that the court conduct a de novo review of the record.” Joint Appendix at 121. The District Court adopted the Magistrate’s report as the order of the Court, noting that: “The substance of [petitioner’s] objection already has been addressed by the Magistrate. Further, [petitioner] fails to raise any new issues which might properly be addressed by this Court. Thus, [petitioner’s] objections do not warrant de novo review.” Joint Appendix at 123. Title 28 U.S.C. § 636(b)(1) provides for de novo review of those portions of a magistrate’s report or recommendations to which objections have been made by any party. However, the district court need not provide de novo review where the objections are “[f]rivolous, conclusive or general.” Nettles v. Wainwright, 677 F.2d 404, 410 n. 8 (5th Cir.1982). The parties have “the duty to pinpoint those portions of the magistrate’s report that the district court must specially consider.” Id. at 410 (footnote omitted); see also United States v. Slay, 714 F.2d 1093, 1095 (11th Cir.1983), cert. denied, 464 U.S. 1050, 104 S.Ct. 729, 79 L.Ed.2d 189 (1984). Furthermore, the only issues raised by petitioner are legal ones. “[D]e novo determination refers only to matters involving disputed facts.” Gioiosa v. United States, 684 F.2d" } ]

[ { "docid": "11706841", "title": "", "text": "and Recommendation and, further, that they have compensated plaintiff for its costs and expenses, including attorney’s fees incurred in connection with the Plaintiffs Motion for Contempt, as supplemented, Doc. Nos. 91,100, including the evidentiary hearing held on June 27, 2006. It is FURTHER RECOMMENDED that Plaintiff’s Motion for Preliminary Injunction, Doc. No. 90, be DENIED without prejudice to renewal should defendants not affirmatively establish, within thirty (30) days, that they have satisfied the recommended sanction for their civil contempt. If any party seeks review by the District Judge of the portion of this document that entails the Report and Recommendation, that party may, within ten (10) days, file and serve on all parties objections to the Report and Recommendation, and the part thereof in question, as well as the basis for the objection thereto. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b). Responses to objections must be filed within ten (10) days after being served with a copy thereof. Fed.R.Civ.P. 72(b). The parties are specifically advised that failure to object to the Report and Recommendation will result in a waiver of the right to de novo review by the District Judge and of the right to appeal the decision of the District Court adopting the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); Harris v. City of Akron, 20 F.3d 1396 (6th Cir.1994); Smith v. Detroit Fed’n of Teachers, Local 231, Am. Fed’n of Teachers, AFL-CIO, 829 F.2d 1370 (6th Cir.1987). Aug. 30, 2006. . Ms. Moore is a previous employee of a company owned by, or controlled by, Mr. Burke. Affidavit of Christina Moore ¶¶ 1-3. . Moreover, it is simply impossible for the Magistrate Judge to have \"wholly ignore[d]” Defendants’ excuse for not reporting the sales when that information simply was not before her at the evidentiary hearing. That is, the \"computer glitch\" that Defendants now contend caused the reporting failure is mentioned for the first time only in Defendants’ Objections: \"After the hearing, Mr. Maloney learned that a computer glitch resulted in the failure to report sales figures at one" }, { "docid": "19719434", "title": "", "text": "upon which relief may be granted, the Court should deny defendants’ motion to dismiss. NOTICE TO PARTIES REGARDING OBJECTIONS The parties to this action may object to and seek review of this Report and Recommendation, but are required to act within ten (10) days of service of a copy hereof as provided for in 28 U.S.C. section 636(b)(1) and E.D.Mich. LR 72.1(d)(2). Failure to file specific objections constitutes a waiver of any further right of appeal United States v. Walters, 638 F.2d 947 (6th Cir. 1981); Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); Howard v. Secretary of Health & Human Services, 932 F.2d 505 (6th Cir.1991). Filing of objections which raise some issues but fail to raise others with specificity, will not preserve all the objections a party might have to this Report and Recommendation. Smith v. Detroit Federation of Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir.1987); Willis v. Sullivan, 931 F.2d 390, 401 (6th Cir.1991). Pur suant to E.D.Mich. LR 72.1(d)(2), a copy of any objections is to be served upon this Magistrate Judge. Within ten (10) days of service of any objecting party’s timely filed objections, the opposing party may file a response. The response shall be not more than five (5) pages in length unless by motion and order such page limit is extended by the Court. The response shall address specifically, and in the same order raised, each issue contained within the objections. Dated: June 27,1996. . The relevánt facts alleged in the complaint are set forth in detail in my Report & Recommendation of August 25, 1995, at pages 1-6. Accordingly, they are not set forth in detail again here. Judge Borman's Order and my Report are reported at Niece v. Fitzner, 922 F.Supp. 1208 (E.D.Mich.1996). . Although Congress did not explicitly state that it was enacting the Rehabilitation Act or the abrogation of Eleventh Amendment immunity under 42 U.S.C. § 2000d-7 pursuant to its enforcement powers under the Fourteenth Amendment, this can be fairly inferred from the findings and purposes behind the Rehabilitation Act, see 29" }, { "docid": "8529686", "title": "", "text": "petitioners filed their claim within this period; and 6. Conclude that petitioners have raised a genuine issue of material fact with respect to their diligence in prosecuting their claim, precluding application of the doctrine of laches. III. NOTICE TO PARTIES REGARDING OBJECTIONS: The parties to this action may object to and seek review of this Report and Recommendation, but are required to act within ten (10) days of service of a copy hereof as provided for in 28 U.S.C. section 636(b)(1) and E.D. Mich. LR 72.1(d)(2). Failure to file specific objections constitutes a waiver of any further right of appeal. United States v. Walters, 638 F.2d 947 (6th Cir.1981); Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); Howard v. Secretary of Health & Human Services, 932 F.2d 505 (6th Cir.1991). Filing of objections which raise some issues but fail to raise others with specificity, will not preserve all the objections a party might have to this Report and Recommendation. Smith v. Detroit Federation of Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir.1987); Willis v. Secretary of Health & Human Services, 931 F.2d 390, 401 (6th Cir.1991). Pursuant to E.D. Mich. LR 72.1(d)(2), a copy of any objections is to be served upon this Magistrate Judge. Within ten (10) days of service of any objecting party’s timely filed objections, the opposing party may file a response. The response shall be not more than five (5) pages in length unless by motion and order such page limit is extended by the Court. The response shall address specifically, and in the same order raised, each issue contained within the objections. Dated: Oct. 21,1996. . Ronald Vance is currently a prisoner in the federal prison system serving a sentence for his conviction. Co-Petitioner William Vance was not charged with participation in the drug conspiracy, or with any other crime. . In Williams v. United States Drug Enforcement Administration, 51 F.3d 732 (7th Cir.1995), the district court applied a two-year state statute of limitations to the plaintiff's claim. The plaintiff did not dispute that this was the applicable limitations" }, { "docid": "22359233", "title": "", "text": "subpoena duces tecum she served on her mother in order to determine from her mother and her mother’s records the source of the defamatory statements at issue. Because Miller subpoenaed her mother only in connection with her defamation claim, the propriety of quashing the subpoena duces tecum is moot. On November 15, 1993, the district court issued a memorandum opinion and order adopting the magistrate judge’s recommendations that defendants’ motions for summary judgment be granted, thereby dismissing Miller’s defamation claim. Because Miller never filed specific objections to the magistrate judge’s reports recommending that summary judgment be granted, she has waived her right to review of the grant of summary judgment. Northern District of Ohio Local Rule 5:3.1(b) provides that a party must file specific objections to a magistrate’s report and recommendation within ten days of service. As long as a party was properly informed of the consequences of failing to object, the party waives subsequent review by the district court and appeal to this court if it fails to file an objection. See United States v. Walters, 638 F.2d 947, 949-50 (6th Cir.1981); see also Thomas v. Arn, 474 U.S. 140, 147-50, 106 S.Ct. 466, 470-72, 88 L.Ed.2d 435 (1985) (affirming appellate court’s holding that failure to file an objection to the magistrate’s report constitutes a waiver). Local Rule 5:3.1(b) also requires that the objection identify the portions of the magistrate’s recommendation to which objection is made and the basis for the objection. In Howard v. Secretary of Health and Human Servs., 932 F.2d 505, 508-09 (6th Cir.1991), we held that a general objection to a magistrate’s report, which fails to specify the issues of contention, does not satisfy the requirement that an objection be filed. The objections must be clear enough to enable the district court to discern those issues that are dispositive and contentious. Howard, 932 F.2d at 509. The magistrate judge filed his recommendations that summary judgment be awarded to defendants on April 13, 1993, July 22, 1993, and September 29, 1993. Each time, Miller received notice that the magistrate’s report and recommendation had been filed. The" }, { "docid": "11835550", "title": "", "text": "parties to this action may object to and seek review of this Report and Recommendation, but are required to act within ten (10) days of service of a copy hereof as provided for in 28 U.S.C. § 636(b)(1) and E.D. Mich. LR 72.1(d)(2). Failure to file specific objections constitutes a waiver of any further right of appeal. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); Howard v. Secretary of Health & Human Servs., 932 F.2d 505 (6th Cir.1991); United States v. Walters, 638 F.2d 947 (6th Cir.1981). Filing of objections which raise some issues but fail to raise others with specificity, will not preserve all the objections a party might have to this Report and Recommendation. Willis v. Sullivan, 931 F.2d 390, 401 (6th Cir.1991); Smith v. Detroit Federation of Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir.1987). Pursuant to E.D. Mich. LR 72.1(d)(2), a copy of any objections is to be served upon this Magistrate Judge. Within ten (10) days of service of any objecting party’s timely filed objections, the opposing party may file a response. The response shall be not more than five (5) pages in length unless by motion and order such page limit is extended by the Court. The response shall address specifically, and in the same order raised, each issue contained within the objections. Feb. 7, 2008 . Although plaintiff was actually employed by Beaver Aerospace, his pay checks were issued by PSI, and the parties refer to PSI as plaintiff's employer. . Plaintiff also had multiple surgeries on his left knee in 1999 and 2000. See PL’s Resp., Exs. A-B. . See also International Ass’n of Heat and Frost Insulators and Asbestos Workers Local Union 42 v. Absolute Environmental Services, Inc., 814 F.Supp. 392, 401 (D.Del.1993) (\"When the moving party seeks summary judgment based on a claim or defense upon which the moving party bears the ultimate burden of proof at trial, the moving party must establish every element of that claim or defense as a matter of law such that no reasonable jury could return a verdict" }, { "docid": "1777019", "title": "", "text": "all proceedings arising out of the filing of an involuntary petition if that petition is dismissed and, therefore, its decision should be reversed and the matter remanded for a decision on the merits. V. Conclusion For the reasons discussed above, the court recommends that the decision of the Bankruptcy Court be REVERSED and that this case be remanded to the Bankruptcy Court for a decision on the merits of appellants’ motion and a determination of a reasonable fee amount. The parties to this action may object to and seek review of this Report and Recommendation, but are required to act within ten (10) days of service of a copy hereof as provided for in 28 U.S.C. § 636(b)(1) and E.D. Mich. LR 72.1(d)(2). Failure to file specific objections constitutes a waiver of any further right of appeal. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); Howard v. Secretary of HHS, 932 F.2d 505, 508 (6th Cir.1991); United States v. Walters, 638 F.2d 947, 949-50 (6th Cir.1981). The filing of objections which raise some issues, but fail to raise others with specificity, will not pre serve all the objections a party might have to this Report and Recommendation. Willis v. Secretary of HHS, 931 F.2d 390, 401 (6th Cir.1991); Smith v. Detroit Fed’n of Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir.1987). Pursuant to E.D. Mich. LR 72.1(d)(2), a copy of any objections is to be served upon this magistrate judge. Within ten (10) days of service of any objecting party’s timely filed objections, the opposing party may file a response. The response shall be no more than 20 pages in length unless, by motion and order, the page limit is extended by the court. The response shall address each issue contained within the objections specifically and in the same order raised. Nov. 19, 2008. REPORT AND RECOMMENDATION APPEAL ON ATTORNEY’S FEES AND COSTS I. Introduction This case involves an appeal by appellants Honigman, Miller Schwartz and Cohn (“HMSC”) and John Richards Homes Building Co., L.L.C. (“JRH”) from a September 21, 2006 order of the" }, { "docid": "13659228", "title": "", "text": "Roberts. As to the plaintiffs’ ADA claims against defendants Lockwood and Roberts, the court should grant defendants’ motion to dismiss for failure to state a claim because all actions of these defendants took place before the effective date of the Act. However, all other claims against these defendants should remain. III. NOTICE TO PARTIES REGARDING OBJECTIONS: The parties to this action may object to and seek review of this Report and Recommendation, but are required to act within ten (10) days of service of a copy hereof as provided for in 28 U.S.C. section 636(b)(1) and E.D.Mich. LR 72.1(d)(2). Failure to file specific objections constitutes a waiver of any further right of appeal. United States v. Walters, 638 F.2d 947 (6th Cir.1981); Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); Howard v. Secretary of Health & Human Services, 932 F.2d 505 (6th Cir.1991). Filing of objections that raise some issues but fail to raise others with specificity, will not preserve all the objections a party might have to this Report and Recommendation. Smith v. Detroit Federation of Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir.1987); Willis v. Secretary of Health & Human Services, 931 F.2d 390, 401 (6th Cir.1991). Pursuant to E.D.Mich. LR 72.1(d)(2), a copy of any objections is to be served upon this Magistrate Judge. Within ten (10) days of service of any objecting party’s timely filed objections, the opposing party may file a response. The response shall not be more than five (5) pages in length unless by motion and order such page limit is extended by the Court. The response shall address specifically, and in the same order raised, each issue contained within the objections. . The complaint contains class action allegations; however, on May 22, 1994, the parties agreed that plaintiffs would withdraw their allegations for class certification. . Defendants still are refusing Niece to bring her plastic cup into the visiting room. . No civil lawsuit had been filed at this time. . Counts I and II allege violations of the ADA asserted by Plaintiff Niece and Plaintiff" }, { "docid": "22071809", "title": "", "text": "that the rule set out in Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603, 605 (1st Cir.1980) forecloses our review of unobjected to issues. The appellant in reply argues that any objection to the magistrate's report preserves all claims on appeal. We agree that only those issues fairly raised by the objections to the magistrate's report are subject to review in the district court and those not preserved by such objection are precluded on appeal. See Thomas v. Am, 474 U.S. 140, 147-48, 106 S.Ct. 466, 471-72, 88 L.Ed.2d 435 (1985). The Federal Magistrate's Act provides that \"a judge of the (district) court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.\" 28 U.s.c. § 636(b)(1)(C); Scott v. Schweiker, 702 F.2d 13, 14 (1st Cir.1983). Here, the notice by the magistrate adequately informed the claimant that failure to make all his specific objections would result in a waiver of further appellate review. Objecting to certain portions of a magistrate's report does not preserve all the objections one may have. Wilson v. McMacken, 786 F.2d 216, 220 (6th Cir.1986); see also Fed.R.Civ.P. 72(b). The district court could assume, absent objection, that the claimant acquiesed to the remaining portions of magistrate's recommendations. Templeman v. Chris Craft Corp., 770 F.2d 245, 247 (1st Cir.), cert. denied, 474 U.S. 1021, 106 S.Ct. 571, 88 L.Ed.2d 556 (1985); Smith v. Detroit, 829 F.2d 1370, 1374 (6th Cir.1987). The claimant's objections to the magistrate's disposition of two specific issues cannot, as he suggests, be fairly construed to include objections to the other two issues the magistrate had before him. Cheshier v. Bowen, 831 F.2d 687, 689 (7th Cir.1987). Nor have we been presented with any compelling reason to relax our rule in this case. Consequently, the appellant has waived our review of the ALT's treatment of the testimony of medical advisor Barrett and the answers to interrogatories filed by another medical advisor, Dr. Kunkle. III. On the issue that treating physician evidence was ignored, the appellant contends that the" }, { "docid": "8893628", "title": "", "text": "sex offender therapy, I will not recommend that the Court find Plaintiffs claim for injunctive relief moot. D. CONCLUSION For the reasons stated above, I recommend that Defendants’ Motion to Dismiss be GRANTED IN PART AND DENIED IN PART. I further recommend that the following claims survive Defendants’ Motion: (1) Plaintiffs claim for injunctive relief under Title II of the ADA and under Section 504 of the Rehab Act; (2) Plaintiffs claim for retaliation under the ADA; (3) Plaintiffs claims under the MPDCRA that accrued before March 10, 2001; and (4) Plaintiffs claim for monetary damages against Defendants in their official capacity under the Rehab Act. III. NOTICE TO PARTIES REGARDING OBJECTIONS: The parties to this action may object to and seek review of this Report and Recommendation, but are required to act within ten (10) days of service of a copy hereof as provided for in 28 U.S.C. Section 636(b)(1) and E.D. Mich. LR 72.1(d)(2). Failure to file specific objections constitutes a waiver of any further right of appeal. United States v. Walters, 638 F.2d 947 (6th Cir.1981), Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985), Howard v. Secretary of Health and Human Services, 932 F.2d 505 (6th Cir.1991). Filing of objections that raise some issues but fail to raise others with specificity, will not preserve all the objections a party might have to this Report and Recommendation. Smith v. Detroit Federation of Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir.1987), Willis v. Sullivan, 931 F.2d 390, 401 (6th Cir.1991). Pursuant to E.D. Mich. LR 72.1(d)(2), a copy of any objection is to be served upon this Magistrate Judge. March 20, 2001. Within ten (10) days of service of any objecting party’s timely filed objections, the opposing party may file a response. The response shall not be more than five (5) pages in length unless by motion and order such page limit is extended by the Court. The response shall address specifically, and in the same order raised, each issue contained within the objections. . It is unclear whether Defendants refused to transfer" }, { "docid": "6436154", "title": "", "text": "reference herein.” The district court approved and adopted the recommendation of the magistrate judge, 822 F.Supp. 416. In the judgment dismissing the case District Judge Benjamin F. Gibson wrote that he had “given new consideration and made a de novo determination of those portions to which specific objection has been made.” II. Before reaching the substantive issues raised by the petitioner, we must deal with the respondent’s assertion that Kelly waived the right to appeal by failing to file “specific objections” to the magistrate judge’s report and recommendations. A. Exercising its supervisory power over the district courts, this court held in United States v. Walters, 638 F.2d 947, 949-50 (1981), that a party must file timely objections to a magistrate’s report with the district court in order to preserve the right to appeal. The purpose of such objections is to provide the district court “with the opportunity to consider the specific contentions of the parties and to correct any errors immediately.” Id. at 950. The Supreme Court upheld this rule in Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985), a habeas corpus case. The Court stated that “[t]he filing of objections to a magistrate’s report enables the district judge to focus attention on those issues — factual and legal— that are at the heart of the parties’ dispute.” Id. at 147, 106 S.Ct. at 471 (footnote omitted). In Smith v. Detroit Federation of Teachers, Local 231, 829 F.2d 1370, 1373 (6th Cir.1987), we stated that “only those specific objections to the magistrate’s report made to the district court will be preserved for appellate review; making some objections but failing to raise others will not preserve all the objections a party may have.” The only case we have found in which a party attempted to incorporate previous filings by reference in objections to a magistrate’s report and recommendations provides little help. In Howard v. Secretary of Health and Human Services, 932 F.2d 505 (6th Cir.1991), the party who lost before the magistrate filed a document in which she specifically objected to the magistrate’s determination to deny" }, { "docid": "19719433", "title": "", "text": "of the ADA. must be reasonable, and “reasonable” depends upon the nature of the service or program and the type of modification in question. The policy concerns inherent in the maintenance of state correctional facilities, such as security, discipline, and rehabilitation, will not be frustrated by application of either section 504 or the ADA to state prisons. Cf. Gates, 39 F.3d at 1447 (indicating that under the ADA, as under the Constitution a regulation “ ‘is valid if it is reasonably related to legitimate penological interests.’ ”) (quoting Turner, 482 U.S. at 89, 107 S.Ct. at 2261-62). Accordingly, a consideration of the policy interests involved weighs in favor of applying section 504 and the ADA to state prisons. IV. CONCLUSION In light of the foregoing, the Court should conclude that Congress has properly abrogated the states’ Eleventh Amendment immunity, and thus plaintiffs’ claim is not barred by that Amendment. Further, the Court should conclude that the provisions of Title II and Title IV are applicable to state prisons. Accordingly, because plaintiffs’ have stated a claim upon which relief may be granted, the Court should deny defendants’ motion to dismiss. NOTICE TO PARTIES REGARDING OBJECTIONS The parties to this action may object to and seek review of this Report and Recommendation, but are required to act within ten (10) days of service of a copy hereof as provided for in 28 U.S.C. section 636(b)(1) and E.D.Mich. LR 72.1(d)(2). Failure to file specific objections constitutes a waiver of any further right of appeal United States v. Walters, 638 F.2d 947 (6th Cir. 1981); Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); Howard v. Secretary of Health & Human Services, 932 F.2d 505 (6th Cir.1991). Filing of objections which raise some issues but fail to raise others with specificity, will not preserve all the objections a party might have to this Report and Recommendation. Smith v. Detroit Federation of Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir.1987); Willis v. Sullivan, 931 F.2d 390, 401 (6th Cir.1991). Pur suant to E.D.Mich. LR 72.1(d)(2), a copy of any objections" }, { "docid": "22167760", "title": "", "text": "of developmental disabilities, participate in special education programs, participate in treatment for learning disabilities, and participate in vocational training. DISCUSSION On appeal, defendant contends that the district court erroneously denied the motion to suppress his confession. Specifically, defendant argues that (1) he was incapable of knowingly waiving hisMiranda rights, (2) the government’s conduct caused defendant to involuntarily waive his Miranda rights and involuntarily confess, and (3) the trial court improperly placed on defendant the burden of proving his confession was made involuntarily. We affirm the judgment of the district court. Failure to Object to Magistrate’s Report and Recommendation Before reaching the merits of this appeal, we comment on whether defendant’s failure to object to the magistrate judge’s Report and Recommendation waives any right to appellate review of the admissibility of his confession. Section 636(b)(1)(B) of the Federal Magistrates Act provides that a district judge may “designate a magistrate to conduct hearings, including evidentiary hearings, and to submit to a judge of the court proposed findings of fact and recommendations for the disposition, by a judge of the court, of [among other things, a motion to suppress evidence in a criminal case].” The Act also provides that, within ten days after being served with the report and recommendation, any party may object to the findings or recommendations of the magistrate judge. 28 U.S.C. § 636(b)(1). If an objection is filed within ten days, “[a] judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.” Id. Otherwise, the district court can adopt the report without making a de novo determination. Although the Act does not, on its face, condition appellate review on timely objections, the Supreme Court has held that “a court of appeals may adopt a rule conditioning appeal, when taken from a district court judgment that adopts a magistrate’s recommendation, upon the filing of objections with the district court identifying those issues on which further review is desired.” Thomas v. Am, 474 U.S. 140, 155, 106 S.Ct. 466, 474-75, 88 L.Ed.2d 435 (1985)." }, { "docid": "12359334", "title": "", "text": "subluxation, contracture, bony or fibrous ankylosis, instability) supported by X-ray evidence of either significant joint space narrowing or significant bony destruction and markedly limiting ability to walk and stand; or B. Reconstructive surgery or surgical ar-throdesis of a major weight-bearing joint and return to full weight-bearing status did not occur, or is not expected to occur, within 12 months of onset. . Any objections to this Report and Recommendation must be served and filed within ten (10) days after service of a copy of this recommended disposition on the objecting party. Such objections must conform to the requirements of Rule 72(b), Federal Rules of Civil Procedure. Failure to file objections within the time specified waives the right to appeal the District Court’s order. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985). The district court need not provide de novo review where objections to this report and recommendation are frivolous, conclusive or general. Mira v. Marshall, 806 F.2d 636 (6th Cir.1986). Only specific objections are reserved for appellate review. Smith v. Detroit Federation of Teachers, 829 F.2d 1370 (6th Cir. 1987)." }, { "docid": "11835549", "title": "", "text": "255 F.Supp.2d 417, 445 (E.D.Pa.2002); Marrero v. Camden County Bd. of Soc. Servs., 164 F.Supp.2d 455, 466 (D.N.J. 2001); cf. Willard v. Ingram Constr. Co., Inc., No. 98-6261, 1999 WL 801580, at *2 (6th Cir. Sept.28, 1999) (“Termination for excessive absenteeism during leave protected under FMLA violates the FMLA.”). Thus, to the extent that genuine issues of material fact remain with respect to whether plaintiff was entitled to FMLA leave for his May 2-3, 2005, absences, genuine issues of material fact also remain with respect to his retaliation claim. The Court should accordingly deny the parties’ motions for summary judgment on this claim. D. Conclusion In view of the foregoing, the Court should conclude that genuine issues of material fact remain and that, based on these issues of fact, neither part is entitled to judgment as a matter of law with respect to plaintiffs entitlement and retaliation claims under FMLA. Accordingly, the Court should deny plaintiffs motion for partial summary judgment and deny defendant’s motion for summary judgment. III. NOTICE TO PARTIES REGARDING OBJECTIONS: The parties to this action may object to and seek review of this Report and Recommendation, but are required to act within ten (10) days of service of a copy hereof as provided for in 28 U.S.C. § 636(b)(1) and E.D. Mich. LR 72.1(d)(2). Failure to file specific objections constitutes a waiver of any further right of appeal. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); Howard v. Secretary of Health & Human Servs., 932 F.2d 505 (6th Cir.1991); United States v. Walters, 638 F.2d 947 (6th Cir.1981). Filing of objections which raise some issues but fail to raise others with specificity, will not preserve all the objections a party might have to this Report and Recommendation. Willis v. Sullivan, 931 F.2d 390, 401 (6th Cir.1991); Smith v. Detroit Federation of Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir.1987). Pursuant to E.D. Mich. LR 72.1(d)(2), a copy of any objections is to be served upon this Magistrate Judge. Within ten (10) days of service of any objecting party’s timely filed" }, { "docid": "1777070", "title": "", "text": "1992) (quoting Gargallo v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 918 F.2d 658, 661 (6th Cir.1990)). Here, the parties dispute whether the any issues of fact or law raised in this action were actually litigated and decided in the Florida Bankruptcy Court. As discussed above, this court finds that no issue presented in this appeal was ever litigated in the Florida Bankruptcy case given the fundamental differences between the two actions with respect to the legal basis for each action, the relief sought, and the standards governing the respective cases. The issues of fact and law in this case involve whether appellants are entitled to attorneys’ fees and costs pursuant to 11 U.S.C. § 303(i)(l) with respect to Adell’s post-award conduct and those issues were not actually litigated or decided as part of the Florida Bankruptcy case. V. Conclusion For the reasons discussed above, this court recommends that Adell’s motion be DENIED on the basis that Adell waived his preclusion arguments by failing to raise them in a timely manner and by failing to adequately address them in his motion. In the alternative, this court recommends that Adell’s motion be denied on the basis that neither claim preclusion nor issue preclusion applies in this matter. The parties to this action may object to and seek review of this Report and Recommendation, but are required to act within ten (10) days of service of a copy hereof as provided for in 28 U.S.C. § 636(b)(1) and E.D. Mich. LR 72.1(d)(2). Failure to file specific objections constitutes a waiver of any further right of appeal. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); Howard v. Secretary of HHS, 932 F.2d 505, 508 (6th Cir.1991); United States v. Walters, 638 F.2d 947, 949-50 (6th Cir.1981). The filing of objections which raise some issues, but fail to raise others with specificity, will not preserve all the objections a party might have to this Report and Recommendation. Willis v. Secretary of HHS, 931 F.2d 390, 401 (6th Cir.1991); Smith v. Detroit Fed’n of Teachers Local 231, 829 F.2d 1370," }, { "docid": "22466302", "title": "", "text": "court did not address the timeliness issue below. In its brief, the State claims that by failing to object to the portion of the magistrate judge’s report which found that his petition was not timely filed, Souter waived this argument. Resp. Br. at 3. We have long held that with regards to a magistrate judge’s recommendation, “a party shall file objections with the district court or else waive right to appeal.” United States v. Walters, 638 F.2d 947, 950 (6th Cir.1981). “By operation of this supervisory rule, only those specific objections to the magistrate’s report made to the district court will be preserved for appellate review.” Smith v. Detroit Fed’n of Teachers, Local 231, 829 F.2d 1370, 1373 (6th Cir.1987). The United States Supreme Court affirmed the Walters rule, holding that it “is a valid exercise of the supervisory power” of the court of appeals. Thomas v. Arn, 474 U.S. 140, 155, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985). While we have regularly enforced the Walters rule, we have also noted that “[i]t plainly is not a jurisdictional rule; the court of appeals retains subject matter jurisdiction over the appeal regardless of the untimely filing or nonfil-ing of objections.” Kent v. Johnson, 821 F.2d 1220, 1222 (6th Cir.1987). In Thomas v. Arn, the Supreme Court “emphasize^] that, because the [Walters ] rule is a nonjurisdietional waiver provision, the Court of Appeals may excuse the default in the interests of justice.” 474 U.S. at 155, 106 S.Ct. 466. In this case, we conclude that it would be inappropriate to apply the Walters rule to bar review of Souter’s timeliness argument. When the magistrate judge issued his report, we had yet to decide Abela v. Martin, 348 F.3d 164 (6th Cir.2003) (en banc), cert. denied, — U.S. —, 124 S.Ct. 2388, 158 L.Ed.2d 976 (2004), which clarified the one-year limitations period under § 2244(d) and which is potentially dispositive of the issue in this case. The magistrate judge reasoned that the limitations period commenced on the date of the last new affidavit, September 17, 1999, from which point Souter had one year" }, { "docid": "1777071", "title": "", "text": "adequately address them in his motion. In the alternative, this court recommends that Adell’s motion be denied on the basis that neither claim preclusion nor issue preclusion applies in this matter. The parties to this action may object to and seek review of this Report and Recommendation, but are required to act within ten (10) days of service of a copy hereof as provided for in 28 U.S.C. § 636(b)(1) and E.D. Mich. LR 72.1(d)(2). Failure to file specific objections constitutes a waiver of any further right of appeal. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); Howard v. Secretary of HHS, 932 F.2d 505, 508 (6th Cir.1991); United States v. Walters, 638 F.2d 947, 949-50 (6th Cir.1981). The filing of objections which raise some issues, but fail to raise others with specificity, will not preserve all the objections a party might have to this Report and Recommendation. Willis v. Secretary of HHS, 931 F.2d 390, 401 (6th Cir.1991); Smith v. Detroit Fed’n of Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir.1987). Pursuant to E.D. Mich. LR 72.1(d)(2), a copy of any objections is to be served upon this magistrate judge. Within ten (10) days of service of any objecting party’s timely filed objections, the opposing party may file a response. The response shall be no more than 20 pages in length unless, by motion and order, the page limit is extended by the court. The response shall address each issue contained within the objections specifically and in the same order raised. March 12, 2009. . The Court believes that had the Florida bankruptcy court considered a request for attorney fees in its case pursuant to some other statutory authority, that decision would not have had a directly preclusive effect on the Michigan bankruptcy court as to the amount of post-judgment attorney fees warranted here, but it would certainly have been a factor for the Michigan bankruptcy court to consider when assessing all the circumstances and determining an equitable amount. The Court believes that failure to consider attorney fees recovered elsewhere and from other" }, { "docid": "12359333", "title": "", "text": "record as a whole. Accordingly, it is hereby RECOMMENDED that the Commissioner’s motion for summary judgment be GRANTED; and that the plaintiffs motion for summary judgment be DENIED. April 11, 2000. . Substituted for \"musculoskeletal system” is \"respiratory system” in 3.001., and “cardiovascular system” in 4.00F. . See note 1, supra. . 20 C.F.R. Part 404, Subpart P, Appendix 1, § 4.11 provides the following: 4.11 Chronic venous insufficiency of a lower extremity. With incompetency or obstruction of the deep venous system and one of the following: A. Extensive brawny edema; OR B. Superficial varcosities stasis dermatitis, and recurrent or persistent ulceration which has not healed following at least 3 months of prescribed medical or surgical therapy. . 20 C.F.R. Pt 404, Subpart P, Appendix 1, § 1.03 provides Arthritis of a major weight-hearing joint (cue to any cause): With history of persistent joint pain and stiffness with signs of marked limitation of motion or abnormal motion of the affected joint on current physical examination. With: A. Gross anatomical deformity of hip or knee (e.g., subluxation, contracture, bony or fibrous ankylosis, instability) supported by X-ray evidence of either significant joint space narrowing or significant bony destruction and markedly limiting ability to walk and stand; or B. Reconstructive surgery or surgical ar-throdesis of a major weight-bearing joint and return to full weight-bearing status did not occur, or is not expected to occur, within 12 months of onset. . Any objections to this Report and Recommendation must be served and filed within ten (10) days after service of a copy of this recommended disposition on the objecting party. Such objections must conform to the requirements of Rule 72(b), Federal Rules of Civil Procedure. Failure to file objections within the time specified waives the right to appeal the District Court’s order. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985). The district court need not provide de novo review where objections to this report and recommendation are frivolous, conclusive or general. Mira v. Marshall, 806 F.2d 636 (6th Cir.1986). Only specific objections are reserved for appellate review. Smith v." }, { "docid": "13394718", "title": "", "text": "with the respondent’s assertion that Kelly waived the right to appeal by failing to file “specific objections” to the magistrate judge’s report and recommendations. Exercising its supervisory power over the district courts, this court held in United States v. Walters, 638 F.2d 947, 949-50 (1981), that a party must file timely objections to a magistrate’s report with the district court in order to preserve the right to appeal. The purpose of such objections is to provide the district court “with the opportunity to consider the specific contentions of the parties and to correct any errors immediately.” Id. at 950. The Supreme Court upheld this rule in Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985), a habeas corpus case. The Court stated that “[t]he filing of objections to a magistrate’s report enables the district judge to focus attention on those issues — factual and legal — that are at the heart of the parties’ dispute.” Id. at 147, 106 S.Ct. at 471 (footnote omitted). In Smith v. Detroit Federation of Teachers, Local 231, 829 F.2d 1370, 1373 (6th Cir.1987), we stated that “only those specific objections to the magistrate’s report made to the district court will be preserved for appellate review; making some objections but failing to raise others will not preserve all the objections a party may have.” The only case we have found in which a party attempted to incorporate previous filings by reference in objections to a magistrate’s report and recommendations provides little help. In Howard v. Secretary of Health and Human Services, 932 F.2d 505 (6th Cir.1991), the party who lost before the magistrate filed a document in which she specifically objected to the magistrate’s determination to deny her request for relief and stated that she “supported” her objections by relying on her earlier brief in support of her motion for summary judgment. The record disclosed, however, that the party had previously filed neither a summary judgment motion nor a brief. In holding that the party had waived appellate review we wrote: A general objection to the entirety of the magistrate’s report" }, { "docid": "22466301", "title": "", "text": "(6th Cir.1999). In this appeal, we address the same two issues as were addressed by the district court below: (1) whether Souter’s petition for writ of habeas corpus was filed timely; and (2) if the petition was untimely, whether the doctrine of equitable tolling should' apply. Upon review, we conclude that Souter’s petition was untimely, but that he has demonstrated a credible claim of actual innocence, which is sufficient for equitably tolling the statute of limitations and enabling a court to reach the merits of his underlying constitutional claims. A. Statute of Limitations Souter’s first argument is that his petition for a writ of habeas corpus, which was filed on January 30, 2002, was timely filed. Before reaching the merits of the timeliness argument, we must first address whether Souter may even raise the issue on appeal. Though the overall recommendation favored Souter, the magistrate judge found that the petition was not filed within the one-year limitations period. Souter did not file any objections to the magistrate judge’s report and recommendation, and accordingly, the district court did not address the timeliness issue below. In its brief, the State claims that by failing to object to the portion of the magistrate judge’s report which found that his petition was not timely filed, Souter waived this argument. Resp. Br. at 3. We have long held that with regards to a magistrate judge’s recommendation, “a party shall file objections with the district court or else waive right to appeal.” United States v. Walters, 638 F.2d 947, 950 (6th Cir.1981). “By operation of this supervisory rule, only those specific objections to the magistrate’s report made to the district court will be preserved for appellate review.” Smith v. Detroit Fed’n of Teachers, Local 231, 829 F.2d 1370, 1373 (6th Cir.1987). The United States Supreme Court affirmed the Walters rule, holding that it “is a valid exercise of the supervisory power” of the court of appeals. Thomas v. Arn, 474 U.S. 140, 155, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985). While we have regularly enforced the Walters rule, we have also noted that “[i]t plainly is" } ]

[ { "docid": "18413317", "title": "", "text": "114 (E.D.Pa.1980), aff’d, 651 F.2d 908 (3d Cir. 1981) and Anthony v. Koppers Co.,-Pa.Super.-, 425 A.2d 428 (1981). . Pangrazzi v. United States, 511 F.Supp. 648 (E.D.Pa.1981). . Everett v. City of Chester, 391 F.Supp. 26 (E.D.Pa.1975). See also Davis v. Chubb/Pacific Indemnity Group, 493 F.Supp. 89 (E.D.Pa.1980), in which the court suggested several “indecisive” terminations which would not support a malicious prosecution claim: a charge withdrawn pursuant to an agreement with the accused or withdrawn out of mercy requested or accepted by the accused, the entry of a plea of nolo contendere or a pardon by the executive. The court held that a termination through an Accelerated Rehabilitative Disposition Program (ARD) was similarly “indecisive”. . Thomas v. E. J. Korvette, Inc., 329 F.Supp. 1163 (E.D.Pa.1971), rev’d on other grounds, 476 F.2d 471 (3d Cir. 1973). . Singleton v. City of New York, supra. . See Commonwealth v. Haefner, 264 Pa.Super. 144, 399 A.2d 707 (1979). . Formal abandonment of charges by the prosecutor as the necessary consequence of a procedural error committed by the trial judge and barring re-prosecution because of the Double Jeopardy Clause cannot be considered as termination inconsistent with guilt. . This subsection provides that [i]f two or more persons in any State or Territory conspire to deter, by force, intimidation, or threat, any party or witness in any court of the United States from attending such court, or from testifying to any matter pending therein, freely, fully and truthfully, or to injure such party or witness in his person or property on account of his having so attended or testified, or to influence the verdict, presentment, or indictment of any grand or petit juror in any such court, or to injure such juror in his person or property on account of any verdict, presentment, or indictment lawfully assented to by him, or of his being or having been sudh juror; or if two or more persons conspired for the purpose of impeding, hindering, obstructing, or defeating, in any manner, the due course of justice in any State or Territory, with intent to deny to any" } ]

[ { "docid": "2875418", "title": "", "text": "those in the prior litigation; a court of competent jurisdiction must have entered a valid, final judgment on the merits; and the present action must concern the same subject-matter or cause of action as the prior suit. Coggins v. Carpenter, 468 F.Supp. 270, 280 (E.D.Pa.1979). Finding that these conditions have been met, we grant defendants’ motions to dismiss. Plaintiff originally instituted suit against a plethora of Lancaster City and County public officials and private citizens and charged them with violations of The Civil Rights Act of 1871, 42 U.S.C. § 1983, 42 U.S.C. § 1985(2) and state claims based upon tortious conduct. Specifically, plaintiff’s first suit alleged that in his business as a rock collector he had employed, and then fired, defendant K. Burkey. In retaliation for his firing, K. Burkey allegedly conspired with co-defendants J. Burkey and Klivansky to secure a criminal prosecution of plaintiff. The three defendants then supposedly met and conspired with law enforcement officials who arrested plaintiff and charged him with corruption of a minor, and involuntary deviate sexual intercourse. Thereafter, defendant law enforcement officials subjected plaintiff to harassment, intimidation and abuse and, along with other defendants, maliciously prosecuted plaintiff for crimes which they knew he did not commit. To effectuate their illegal conspiratorial goal, various defendants committed perjury at plaintiff’s preliminary hearing and subsequent trial, sought to illegally pressure plaintiff into tendering a guilty plea, improperly investigated and interviewed potential jurors and threatened and intimidated defense witnesses. Upon completion of plaintiff’s trial, which ended in a hung jury, he was sentenced to prison — this for contemptuous conduct. While in the county prison, plaintiff was allegedly subjected to various abuses and forced to reveal information critical to and necessary for his defense at re-trial. The Commonwealth’s attempt to re-try plaintiff was successfully blocked by decision of the Pennsylvania Superior Court, grounded upon double jeopardy considerations. See Commonwealth v. Haefner, 264 Pa.Super. 144, 399 A.2d 707 (1979). We dismissed plaintiff’s first suit because it was time-barred. See Haefner v. County of Lancaster, 520 F.Supp. 131 (E.D.Pa.1981), aff’d, 681 F.2d 806 (3d Cir. 1982). Plaintiff’s current suit" }, { "docid": "18838917", "title": "", "text": "Co. v. Food Machinery & Chemical Corp., 382 U.S. 172, 86 S.Ct. 347, 15 L.Ed.2d 247 (1965); Frederiksen v. Poloway, 637 F.2d 1147, 1150 n. 1 (7th Cir.), cert. denied, 451 U.S. 1017, 101 S.Ct. 3006, 69 L.Ed.2d 389 (1981); General Public Utilities Corp. v. United States, 551 F.Supp. 521, 524 n. 4 (E.D.Pa.1982). Plaintiffs’ six-count complaint primarily asserts claims under the Civil Rights Act of 1871, 42 U.S.C. § 1983, and the Fourth, Eighth and Fourteenth Amendments. Additionally, plaintiffs have appended various state tort claims to their federal ones. Defendants, moving to dismiss, assert that the applicable statute of limitations precludes any adjudication of the complaint, that plaintiffs have failed to state a claim under § 1983, that Count II improperly purports to predicate municipal liability upon the theory of respondeat superior and that the Political Subdivision Tort Claims Act, 42 Pa.C.S.A. § 8541 et seq., effectively immunizes them from suit. Finally, defendants argue that they may not be subjected to a claim for punitive damages. We now address these issues. Plaintiffs’ claims against defendants accrued on October 4,1979. Suit was instituted two years and one day later, on October 5,1981. The operative facts underlying the federal claim are analogous to the state tort of false arrest and imprisonment and assault and battery. Pennsylvania requires that such claims be brought within two years. Salaneck v. State Trooper Eric Olena, 558 F.Supp. 370 (E.D.Pa.1983); Haefner v. Lancaster County, 520 F.Supp. 131, 132 (E.D.Pa.1981), aff'd, 681 F.2d 806 (3d Cir.1982); 42 Pa.C.S.A. § 5524(1). Fed.R. Civ.P. 6(a), which governs the resolution of this issue, specifically provides that “day of the act ... from which the designated period of time begins to run shall not be included” in determining whether suit was brought in a timely manner. Accordingly, October 5, 1979, the day after the complained of conduct occurred, is the first day which we consider in determining whether suit was filed within the prescribed time. Since suit was instituted on October 5,1981, we conclude that this action was brought within the two-year period and is not time-barred. The individual defendants also" }, { "docid": "7960184", "title": "", "text": "all defendants. F. Under Pennsylvania law, the elements of the tort of intentional infliction of emotional distress are: (1) extreme and outrageous conduct, (2) which is intentional or reckless, and (3) causes severe emotional distress. Denenberg v. American Family Corp. of Columbus, Ga., 566 F.Supp. 1242, 1251 (E.D.Pa.1983). Plaintiffs complaint sufficiently states this cause of action against all defendants. G. Civil conspiracy is actionable, under Pennsylvania law, when (1) an overt act is performed (2) in pursuit of the common purpose or design held by the conspirators, and (3) actual legal damage results. Cohen v. Pelagatti, 364 Pa.Super. 573, 528 A.2d 657, 658 (1987). As discussed, supra, in section A., the plaintiff has failed to allege facts tending to establish that a conspiracy existed between the private-party defendants and Justice. Therefore, the complaint does not state a cause of action for civil conspiracy against Justice. The complaint is sufficient, however, in stating a civil conspiracy claim against the private-party defendants. H. Defendants also contend that plaintiffs claims are barred by the applicable statutes of limitations. The limitations period applicable to all of plaintiffs common law claims is two years. 42 Pa.C.S. § 5524. Since Congress did not establish a federal statute of limitations for actions brought under 42 U.S.C. § 1983, the two-year state limitations period for the analogous common law actions is utilized. Haefner v. Lancaster County, Pa., 520 F.Supp. 131, 132 (E.D.Pa.1981), affirmed, 681 F.2d 806 (3d Cir.1982), cert. denied, 459 U.S. 874, 103 S.Ct. 165, 74 L.Ed.2d 136 (1982). Plaintiffs original complaint in the superseded action No. 90-6458 (“the 1990 complaint”) brought identical claims against the defendants in the present action. The 1990 complaint satisfied the statute of limitations requirement as to all claims. Pursuant to the Order of this court dated May 1, 1991, plaintiff was instructed to file the complaint in the present action so that two related actions (89-6581 and 90-6458) could be consolidated. The complaint in the present action satisfies the limitations requirements through its relationship to and derivation from the 1990 complaint. I. Defendants also argue that plaintiffs complaint fails to satisfy" }, { "docid": "18841388", "title": "", "text": "fails to satisfy any of these standards. Plaintiff does not allege discrimination based on race, sex, alienage, or any other suspect classification. Nor does she claim discrimination against administrative law judges as a class. Thus, she fails to state a claim under § 1985(3). B. 42 U.S.C. § 1985(2) The Third Circuit construes section 1985(2) as subdivided into two parts — one part preceding and the other following the semi-colon. Brawer v. Horowitz, 535 F.2d 830, 840 (3d Cir. 1976). The second half of section 1985(2), proscribing obstructions of justice having as their object the denial of equal protection of the laws, Haefner v. County of Lancaster, 520 F.Supp. 131, 134 (E.D.Pa.1981), has been construed to require the same class-based, invidiously discriminatory animus as that which has been re quired under § 1985(3). Brawer, 535 F.2d at 840. Accordingly, for the reasons stated above, plaintiff’s claim under this section must also be dismissed. The first clause of subsection (2) is aimed at conspiracies to intimidate or pressure witnesses, parties and jurors in the performance of their duties in any court of the United States. Brawer, 535 F.2d at 840. This section does not provide judges or others involved in the judicial process, who are not specified in the statute, with any protection. Plaintiff, as a judge, does not have standing under this statute to raise the constitutional claims of litigants who appear before her. O’Malley v. Brierley, 477 F.2d at 789 (one cannot sue for deprivation of another’s civil rights.) C. Section 1985(1) Section 1985(1) has not been definitively construed by the Third Circuit. However, in a carefully considered opinion, with which I am in agreement, the Seventh Circuit has construed it to consist of four component parts. Stern v. United States Gypsum, Inc., 547 F.2d 1329, 1336 (7th Cir.), cert. denied, 434 U.S. 975, 98 S.Ct. 533, 54 L.Ed.2d 467 (1977). Parts one and two proscribe conspiracies to prevent federal officers, by the use of “force, intimidation, or threat” from holding office or discharging their duties. Also proscribed are conspiracies to induce federal officers to leave a place where" }, { "docid": "1704834", "title": "", "text": "state court’s judgment must be given the same effect in federal court that it would have been given in state court. Marrese v. American Academy of Orthopaedic Surgeons, 470 U.S. 373, 105 S.Ct. 1327, 84 L.Ed.2d 274 (1985); Kremer v. Chemical Construction Co., 456 U.S. 461, 102 S.Ct. 1883, 72 L.Ed.2d 262 (1982); Nanavati v. Burdette Tomlin Memorial Hospital, 857 F.2d 96 (3d Cir.1988), cert. denied, — U.S. —, 109 S.Ct. 1528, 103 L.Ed.2d 834 (1989). The Pennsylvania law of res judica-ta applies a four-part test to determine whether a claim is barred: The application of res judicata requires a concurrence of four (4) conditions: (1) an identity of the thing sued upon; (2) an identity of the cause of action; (3) an identity of the persons and parties to the action; and (4) an identity of the quality or capacity of the parties suing or sued. Dunham v. Temple University, 288 Pa.Super. 522, 534, 432 A.2d 993, 999 (1981). For relitigation to be precluded, Pennsylvania law requires that the prior determination be “on the merits.” See Ross v. Bowlby, 353 Pa.Super. 59, 509 A.2d 332 (1986) (disposition of case not on the merits does not bar relitigation); Consolidation Coal Co. v. Dish 5, UMW, 336 Pa.Super. 354, 485 A.2d 1118 (1984) (res judicata applies where prior action was decided on the merits). Where the prior dismissal was based on a judgment of non pros, Pennsylvania courts will not give preclusive effect to the judgment. As the Pennsylvania Superior Court has stated: [t]he legal effect of the entry of a judgment of non pros is not such as to preclude a plaintiff who suffers such a judgment from instituting another suit on the same cause of action provided, however, that the second suit is brought within the period of the statute of limitations [and the plaintiff is willing to pay for costs of the former suit]. Haefner v. Sprague, 343 Pa.Super. 342, 347, 494 A.2d 1115, 1118 (1985). Although neither the Superior Court nor the Supreme Court of Pennsylvania have spoken to the issue, Pennsylvania claim preclusion law also appears" }, { "docid": "18841387", "title": "", "text": "Court has repeatedly emphasized the importance of protecting the independence of attorneys and ensuring zealous advocacy on behalf of clients under our adversary system of justice. See, e.g., In re Sawyer, 360 U.S. 622, 635-36, 79 S.Ct. 1376, 1382-1383, 3 L.Ed.2d 1473 (1959). See also In re Dellinger, 461 F.2d at 400. These principles must be followed with special care with respect to legal service organizations where, because of funding and other considerations, there is a high risk of interference and control by the government or the courts. Fairly read, plaintiff’s requests for relief, if granted, would seriously encroach upon the protected activities of the CLS defendants. It is also clear that plaintiff’s complaint fails to satisfy the requirement that defendants’ actions be motivated by a class-based, discriminatory animus. Such allegations must allege discrimination against a well defined class, and discrimination that “(1) affects a traditionally disadvantaged group {e.g., ‘suspect’ classification); (2) is irrational; or (3) unnecessarily burdens plaintiff’s exercise of a ‘fundamental’ right.” Santiago v. City of Philadelphia, 435 F.Supp. 136, 156 (E.D.Pa.1977). Plaintiff fails to satisfy any of these standards. Plaintiff does not allege discrimination based on race, sex, alienage, or any other suspect classification. Nor does she claim discrimination against administrative law judges as a class. Thus, she fails to state a claim under § 1985(3). B. 42 U.S.C. § 1985(2) The Third Circuit construes section 1985(2) as subdivided into two parts — one part preceding and the other following the semi-colon. Brawer v. Horowitz, 535 F.2d 830, 840 (3d Cir. 1976). The second half of section 1985(2), proscribing obstructions of justice having as their object the denial of equal protection of the laws, Haefner v. County of Lancaster, 520 F.Supp. 131, 134 (E.D.Pa.1981), has been construed to require the same class-based, invidiously discriminatory animus as that which has been re quired under § 1985(3). Brawer, 535 F.2d at 840. Accordingly, for the reasons stated above, plaintiff’s claim under this section must also be dismissed. The first clause of subsection (2) is aimed at conspiracies to intimidate or pressure witnesses, parties and jurors in the performance of" }, { "docid": "2875417", "title": "", "text": "MEMORANDUM AND ORDER TROUTMAN, District Judge. Res judicata rests upon considerations of “economy of judicial time and public policy favoring the establishment of legal relations”. Sea-Land Services v. Gaudet, 414 U.S. 573, 578, 94 S.Ct. 806, 811, 39 L.Ed.2d 9 (1974), quoting Commissioner v. Sunnen, 333 U.S. 591, 597, 68 S.Ct. 715, 719, 92 L.Ed. 898 (1948). Described as a “fundamental rule of substantial justice” rather than a “mere matter of practice or procedure inherited from more technical times” it should be “cordially regarded and enforced by the courts”. Federated Department Stores, Inc. v. Moitie, 452 U.S. 394, 401, 101 S.Ct. 2424, 2429, 69 L.Ed.2d 103, 111 (1981) (quotations omitted). Res judicata serves the salutary purposes of “encouragpng] reliance on judicial decisions [and], bar [ring] vexatious litigation [while] free[ing] courts to resolve other disputes”. Brown v. Felsen, 442 U.S. 127, 131, 99 S.Ct. 2205, 2209, 60 L.Ed.2d 767 (1979). In order to successfully invoke its protections, three prerequisites need be established: the parties to the instant suit must be the same or in privity with those in the prior litigation; a court of competent jurisdiction must have entered a valid, final judgment on the merits; and the present action must concern the same subject-matter or cause of action as the prior suit. Coggins v. Carpenter, 468 F.Supp. 270, 280 (E.D.Pa.1979). Finding that these conditions have been met, we grant defendants’ motions to dismiss. Plaintiff originally instituted suit against a plethora of Lancaster City and County public officials and private citizens and charged them with violations of The Civil Rights Act of 1871, 42 U.S.C. § 1983, 42 U.S.C. § 1985(2) and state claims based upon tortious conduct. Specifically, plaintiff’s first suit alleged that in his business as a rock collector he had employed, and then fired, defendant K. Burkey. In retaliation for his firing, K. Burkey allegedly conspired with co-defendants J. Burkey and Klivansky to secure a criminal prosecution of plaintiff. The three defendants then supposedly met and conspired with law enforcement officials who arrested plaintiff and charged him with corruption of a minor, and involuntary deviate sexual intercourse. Thereafter," }, { "docid": "23695390", "title": "", "text": "S.Ct. 1368, 67 L.Ed.2d 347 (1981). In Pennsylvania, like most jurisdictions, a party bringing a malicious prosecution claim must demonstrate that (1) the defendants initiated a criminal proceeding; (2) the, criminal proceeding ended in the plaintiffs favor; (3) the proceeding was initiated without probable cause; and (4) the defendants acted maliciously or for a purpose other than bringing the plaintiff to justice. Haefner v. Burkey, 534 Pa. 62, 626 A.2d 519, 521 (1993); see also Lee, 847 F.2d at 69-70. The resolution of this case rests on an assessment of whether Miller is able to meet the second requirement, i.e. demonstrate that the criminal proceedings below ended in her favor. According to the Restatement (Second) of Torts § 659 (1976), which has been relied upon by the Pennsylvania Supreme Court, criminal proceedings are terminated in favor of the accused by (a) a discharge by a magistrate at a preliminary hearing, or (b) the refusal of a grand jury to indict, or (c) the formal abandonment of the proceedings by the public prosecutor, or (d) the quashing of an indictment or information, or (e) an acquittal, or (f) a final order in favor of the accused by a trial or appellate court. Id., quoted in Haefner, 626 A.2d at 521. Miller’s basic argument is that the prosecution’s decision to move for nolle prosequi of her charges amounts to a “formal abandonment of the proceedings by the public prosecutor,” and thus the district court should have found that the criminal proceedings had terminated in her favor. In particular, Miller refers us to the Pennsylvania Supreme Court’s decision in Haefner, where the court determined that the plaintiff had met the threshold requirement for a malicious prosecution claim after the prosecution “nolle prossed the remaining charges because of insufficient evidence.” Haefner, 626 A.2d at 521. The court there noted, “ ‘if the defendant is discharged after abandonment of the charges by the prosecutor, this is sufficient to satisfy the requisite element of prior favorable termination of the criminal action.’ ” Id. (quoting Woodyatt v. Bank of Old York Road, 408 Pa. 257, 182 A.2d" }, { "docid": "14095579", "title": "", "text": "and; (3) the presence of the same parties or their privies in both lawsuits. See Haefner v. The County of Lancaster, 543 F.Supp. 264, 265 (E.D.Pa.1982), affd, 707 F.2d 1401 (3d Cir.1983). In recent times, however, the last of these three requirements has been abolished in the strict sense. The Court of Appeals for the Third Circuit, among other courts, has broadened the availability of res judicata to persons who were not parties to or in “privity” with parties in the earlier case. See Bruszewski v. United States, 181 F.2d 419 (3d Cir.), cert. denied, 340 U.S. 865, 71 S.Ct. 87, 95 L.Ed. 632 (1950). That is, where the same plaintiff sues in multiple suits on identical causes of action, defendants in the later suits who were not named as defendants in the earlier suits are entitled to the benefit of res judicata so long as there is a close or particular relationship with the defendants in the earlier suit: Where different plaintiffs sue the same defendant in successive suits, many courts have questioned the fairness of invoking res judicata against the defendant unless a significant relationship can be found between the plaintiffs. But where, as in this case, res judicata is invoked against a plaintiff who has twice asserted essentially the same claim against different defendants, courts have, as indicated in the cases above cited, enlarged the area of res judicata beyond any definable categories of privity between the defendants____ We are in accord with this development of the law away from formalism which impedes the achievement of fair and desirable results. Bruszewski, 181 F.2d at 422. The Court of Appeals later reaffirmed Bruszewski, holding in Gambocz v. Yelencsics, 468 F.2d 837, 841 (3d Cir.1972) that res judicata applies “where there is a close or significant relationship between successive defendants.” The doctrine of collateral estoppel, sometimes called “issue preclusion,” serves essentially the same policy goals as res judicata — avoiding relitigation of the same claims, expense to litigants and inconsistent results. The rules of res judicata and collateral estoppel are often confused. The Court of Appeals for the Third" }, { "docid": "7960185", "title": "", "text": "The limitations period applicable to all of plaintiffs common law claims is two years. 42 Pa.C.S. § 5524. Since Congress did not establish a federal statute of limitations for actions brought under 42 U.S.C. § 1983, the two-year state limitations period for the analogous common law actions is utilized. Haefner v. Lancaster County, Pa., 520 F.Supp. 131, 132 (E.D.Pa.1981), affirmed, 681 F.2d 806 (3d Cir.1982), cert. denied, 459 U.S. 874, 103 S.Ct. 165, 74 L.Ed.2d 136 (1982). Plaintiffs original complaint in the superseded action No. 90-6458 (“the 1990 complaint”) brought identical claims against the defendants in the present action. The 1990 complaint satisfied the statute of limitations requirement as to all claims. Pursuant to the Order of this court dated May 1, 1991, plaintiff was instructed to file the complaint in the present action so that two related actions (89-6581 and 90-6458) could be consolidated. The complaint in the present action satisfies the limitations requirements through its relationship to and derivation from the 1990 complaint. I. Defendants also argue that plaintiffs complaint fails to satisfy the requirements of Federal Rules of Civil Procedure 8, 9 and 10. Rule 8 requires a pleader to set forth (1) a short, plain statement asserting jurisdictional grounds, (2) a short, plain statement of each claim showing that the pleader is entitled to relief, and (3) a demand for judgment for the relief pleader is seeking. Fed.R.Civ.P. 8(a). Plaintiffs complaint clearly includes each of these three items. Rule 9 provides that in “all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity.” Fed.R.Civ.P. 9(b). Despite the fact that neither fraud nor mistake is averred in the complaint, defendants contend that this rule should be applicable to plaintiffs allegations. The contention is unpersuasive. Rule 10 requires, inter alia, that each claim founded on a separate transaction or occurrence be stated in a separate count when such arrangement facilitates under standing. Fed.R.Civ.P. 10(b). Plaintiffs complaint is straightforward and understandable. Defendants are unconvincing in their assertion that organization of the complaint into separate counts would enhance clarity of presentation. V. Conclusion" }, { "docid": "15578927", "title": "", "text": "County, 520 F.Supp. 131, 132 (E.D.Pa.1981), aff'd, 681 F.2d 806 (3d Cir.1982). Reasoning that Pennsylvania’s six-month period within which to commence suit against “any offi- eer or any government unit for anything done in the execution of his office”, 42 Pa.C.S.A. § 5522(b)(1), supplies the appropriate statute of limitations, defendants argue that plaintiffs’ action, brought beyond this temporal limit, is barred. In so urging, defendants assert that Pennsylvania has jettisoned the traditional § 1983 statute-of-limitations analysis and has substituted a specific limitation period which bars all suits against the Commonwealth, its political subdivisions and officers which are beyond the six-month period. This argument, although appearing meritorious cannot withstand principled scrutiny. Claims of unlawful arrest and physical abuse while in police custody are viewed as most nearly resembling state tort actions for assault and battery and false arrest and imprisonment. Haefner v. Lancaster County, 520 F.Supp. at 132. Institution of suit for such claims must be within two years of accrual. 42 Pa.C.S.A. § 5524(1). Adoption of the six-month statute for claims against the Commonwealth and its agencies by the Pennsylvania legislature did not alter this rule. Rather, the new six-month statute of limitations establishes a time frame within which to bring specified claims against a specific class of defendant. The key issue for resolution is whether the claim at bar is the type of “specified claim” which is intended to be governed by the short limitation period. Judge Luongo (now Chief Judge), in a careful and in-depth analysis of the statute in question, 42 Pa.C.S.A. § 5522(b)(1), established a two-step analysis to determine those civil rights claims which are properly subjected to the six-month period. He viewed the statute as complementing, rather than supplanting, the traditional analysis which courts employ in determining which statute of limitations to apply. Specifically, courts first identify the facts underlying the complained-of state action. If the state has provided a statute of limitations for the specific conduct at issue, then that specific limitation period applies. Where, however, the state activity which forms the basis of the § 1983 claim does not admit to any specific" }, { "docid": "19720221", "title": "", "text": "OPINION LUONGO, Chief Judge. This is uie second of two lawsuits based on plaintiff Joseph Sendi’s claim that defendant NCR Comten, Inc. wrongfully terminated his employment. In 1984 Sendi filed a complaint alleging that Comten’s acceptance of his resignation on November 6, 1981 violated the Pennsylvania Wage Payment and Collection Law (WPCL), 43 P.S. § 260.1 et seq. Sendi v. NCR Comten, Inc., No. 84-2114 (E.D.Pa. filed May 2, 1984) (Sendi I). On June 10, 1985 Sendi moved for leave to amend his complaint to add counts alleging breach of an employment agreement and an implied covenant of good faith and fair dealing. I denied his motion for leave to amend on July 5 and, on October 25, granted summary judgment in Comten’s favor, 619 F.Supp. 1577. On October 10, 1985 plaintiff filed this lawsuit (Sendi II). Comten has moved to dismiss the Sendi II complaint, which is identical to the proposed amended complaint in Sendi I, on the ground that it is barred by res judicata. For the reasons stated below, Comten’s motion to dismiss will be granted. The doctrine of res judicata is intended to ensure the finality of judgments and prevent repetitive litigation. Brown v. Felsen, 442 U.S. 127, 131, 99 S.Ct. 2205, 2209, 60 L.Ed.2d 767 (1979). The doctrine operates to bar not only identical repetitive suits but also to prevent the assertion of a different legal theory which arises from the same liability creating conduct, and which the party had reasonable opportunity to present in the original suit____ A party is not entitled to a second lawsuit merely because he states a new theory of recovery. Seamon v. Bell Telephone Co., 576 F.Supp. 1458, 1460 (W.D.Pa.1983), aff'd mem., 740 F.2d 958 (3d Cir.1984). See also Haefner v. County of Lancaster, 543 F.Supp. 264, 266-67 (E.D.Pa.1982), aff'd mem., 707 F.2d 1401 (3d Cir.1983); Miller v. United States, 438 F.Supp. 514, 520-23 (E.D.Pa.1977). Plaintiff argues that in Sendi I he sought damages only for commissions which he had allegedly earned prior to his November 6, 1981 termination date. Sendi II is not barred, he contends, because it" }, { "docid": "23669907", "title": "", "text": "was affected by such act or transaction. In Count V of the complaint, Mr. duPont has alleged that: From time to time defendants Sam Wyly, Charles J. Wyly, Jr., Walter Haefner and Walter Haefner Holding A.G., by the use of the mails and means and instrumentalities of interstate commerce, and otherwise, willfully effected a series of transactions in the common stock of UCC raising the price of such security for the purpose of inducing the purchase or sale of such security by others, and for the purpose of pegging, fixing or stabilizing the price of such shares in contravention of the rules and regulations of the SEC. Mr. duPont does not allege that he has purchased shares the price of which has been affected by such transaction. In fact, in his brief plaintiff admits that “(he) did not purchase or sell his stock at a price directly affected by the Section 9(a) manipulations.” I read this comment, in the absence of any express allegation on the subject, as indicating that the series of stock transactions referred to in paragraph 45 did not precede the purchase of Mr. duPont’s stock on May 19, 1971. In light of the express requirement of Section 9(e) that liability be predicated on a purchase or sale at a price affected by the allegedly offending conduct, I conclude that plaintiff has not stated a claim upon which relief could be granted under Section 9. Rosenberg v. Hano, 121 F.2d 818 (3rd Cir. 1941). Plaintiff argues that even though he himself has suffered no injury, members of the class which he seeks to represent have been damaged and he ought to be permitted to litigate those claims. Even if I were persuaded that this were otherwise a proper class action, I think it settled that one who has suffered no wrong is not properly a member of a class seeking redress and, therefore, not an appropriate party to represent it. See Kauffman v. Dreyfus, 434 F.2d 727 (3rd Cir. 1970) and cases cited at 434 F.2d 736. Count V will be dismissed. Defendant Arthur Young’s Motion To" }, { "docid": "15578926", "title": "", "text": "MEMORANDUM AND ORDER TROUTMAN, District Judge. Plaintiffs, complaining that their illegal arrests were accomplished through the use of excessive force, instituted this action against a plethora of Pennsylvania State officials and local police officers. Defendants, moving to dismiss all claims grounded in The Civil Rights Act of 1871, 42 U.S.C. § 1983 , argue that the purportedly relevant statute of limitations, 42 Pa.C.S.A. § 5522(b)(1), requires that all such actions be brought within six months. Since more than that period of time elapsed between the accrual of plaintiffs’ claim and the institution of suit, defendants assert that they are entitled to dismissal or summary judgment. We disagree and deny the motion. Because § 1983 contains no statute of limitations, federal courts have historically applied the limitations period which would be applicable in the state court for an action seeking similar relief under state law. Board of Regents v. Tomanio, 446 U.S. 478, 483-89, 100 S.Ct. 1790, 1794, 64 L.Ed.2d 440 (1980); Polite v. Diehl, 507 F.2d 119, 122 (3d Cir.1974) (en banc); Haefner v. Lancaster County, 520 F.Supp. 131, 132 (E.D.Pa.1981), aff'd, 681 F.2d 806 (3d Cir.1982). Reasoning that Pennsylvania’s six-month period within which to commence suit against “any offi- eer or any government unit for anything done in the execution of his office”, 42 Pa.C.S.A. § 5522(b)(1), supplies the appropriate statute of limitations, defendants argue that plaintiffs’ action, brought beyond this temporal limit, is barred. In so urging, defendants assert that Pennsylvania has jettisoned the traditional § 1983 statute-of-limitations analysis and has substituted a specific limitation period which bars all suits against the Commonwealth, its political subdivisions and officers which are beyond the six-month period. This argument, although appearing meritorious cannot withstand principled scrutiny. Claims of unlawful arrest and physical abuse while in police custody are viewed as most nearly resembling state tort actions for assault and battery and false arrest and imprisonment. Haefner v. Lancaster County, 520 F.Supp. at 132. Institution of suit for such claims must be within two years of accrual. 42 Pa.C.S.A. § 5524(1). Adoption of the six-month statute for claims against the Commonwealth and" }, { "docid": "23669906", "title": "", "text": "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 was affected by such act or transaction. In Count V of the complaint, Mr. duPont has alleged that: From time to time defendants Sam Wyly, Charles J. Wyly, Jr., Walter Haefner and Walter Haefner Holding A.G., by the use of the mails and means and instrumentalities of interstate commerce, and otherwise, willfully effected a series of transactions in the common stock of UCC raising the price of such security for the purpose of inducing the purchase or sale of such security by others, and for the purpose of pegging, fixing or stabilizing the price of such shares in contravention of the rules and regulations of the SEC. Mr. duPont does not allege that he has purchased shares the price of which has been affected by such transaction. In fact, in his brief plaintiff admits that “(he) did not purchase or sell his stock at a price directly affected by the Section 9(a) manipulations.” I read this comment, in the absence of any express allegation on the subject, as indicating that the series of stock transactions" }, { "docid": "14095578", "title": "", "text": "The parties have reviewed the relevant legal principles of res judicata and collateral estoppel in their memoranda. The Court of Appeals for the Third Circuit has adhered to the view that state law rules of res judicata and collateral estoppel apply in diversity cases. See Provident Tradesmens Bank & Trust Co. v. Lumbermen’s Mutual Casualty Co., 411 F.2d 88, 94 (3d Cir.1969). Nevertheless, the majority rule is to the contrary, and calls for the application of federal law. See, e.g., Hunt v. Liberty Lobby, Inc., 707 F.2d 1493, 1496 (D.C.Cir.1983); Restatement (Second) of Judgments, § 87. The parties in the instant case have manifested a willingness to apply federal principles of res judicata and collateral estoppel. I will therefore evaluate defendant’s arguments by utilizing federal standards. As has been often stated, the three prong test for the application of res judicata to a given action requires (1) a final judgment in a court of competent jurisdiction in the earlier case; (2) the assertion of the same cause of action in the two cases at issue, and; (3) the presence of the same parties or their privies in both lawsuits. See Haefner v. The County of Lancaster, 543 F.Supp. 264, 265 (E.D.Pa.1982), affd, 707 F.2d 1401 (3d Cir.1983). In recent times, however, the last of these three requirements has been abolished in the strict sense. The Court of Appeals for the Third Circuit, among other courts, has broadened the availability of res judicata to persons who were not parties to or in “privity” with parties in the earlier case. See Bruszewski v. United States, 181 F.2d 419 (3d Cir.), cert. denied, 340 U.S. 865, 71 S.Ct. 87, 95 L.Ed. 632 (1950). That is, where the same plaintiff sues in multiple suits on identical causes of action, defendants in the later suits who were not named as defendants in the earlier suits are entitled to the benefit of res judicata so long as there is a close or particular relationship with the defendants in the earlier suit: Where different plaintiffs sue the same defendant in successive suits, many courts have questioned the" }, { "docid": "2875420", "title": "", "text": "is predicated upon the same general events outlined above; they commenced in August, 1975. Additional allegations are contained in the instant suit, which, plaintiff urges, assert a new dimension to the prior suit and obstruct or exclude application of res judicata. Specifically, plaintiff now informs the Court that he was subjected to multiple prosecutions. The first lawsuit was predicated upon false charges inspired by defendant K. Burkey. The case at bar, plaintiff asserts, is grounded in false charges inspired by defendant Klivansky. Unlike the “Burkey-inspired” charges, the “Klivansky-inspired” charges were not the subject of the mistrial which eventually resulted in litigation before the Pennsylvania Superior Court. Moreover, plaintiff now argues that the “Klivansky-inspired” charges were outstanding until March 7, 1980, at which time they were nolle prossed on the basis of insufficient evidence. The unlawful conspiracy now alleged and relating to the “Klivansky-inspired” charges includes defendants’ supposed failure to comply with a Court order requiring them to expunge plaintiff’s arrest record. See Commonwealth v. Haefner, 291 Pa.Super. 604, 436 A.2d 665 (1981). We turn now to our analysis of the issue involved. The first element necessary to establishment of a res judicata bar, the requirement that the subsequent action be brought against the same parties as the initial action, is met here. The presence of defendant Mumma, the only defendant not named in the first suit, does not compel a contrary result. Coggins v. Carpenter, 468 F.Supp. at 280. We have equally little trouble finding that the second required element, a final, valid judgment on the merits, is met. A dismissal for failure to state a claim is a “judgment on the merits”. Federated Department Stores, Inc. v. Moitie, 452 U.S. at 399, 101 S.Ct. at 2428, n. 3, 69 L.Ed.2d at 109, n. 3; Hubicki v. ACF Industries, Inc., 484 F.2d 519, 523 (3d Cir. 1973); Hayes v. New England Millwork Distributors, Inc., 485 F.Supp. 459, 461 (D.Mass.1980); Coggins v. Carpenter, 468 F.Supp. at 280. Likewise, dismissal of a suit as time-barred establishes a res judicata bar. Wachovia Bank & Trust Co., N.A. v. Randell, 485 F.Supp. 39 (S.D.N.Y.1979)." }, { "docid": "2875419", "title": "", "text": "defendant law enforcement officials subjected plaintiff to harassment, intimidation and abuse and, along with other defendants, maliciously prosecuted plaintiff for crimes which they knew he did not commit. To effectuate their illegal conspiratorial goal, various defendants committed perjury at plaintiff’s preliminary hearing and subsequent trial, sought to illegally pressure plaintiff into tendering a guilty plea, improperly investigated and interviewed potential jurors and threatened and intimidated defense witnesses. Upon completion of plaintiff’s trial, which ended in a hung jury, he was sentenced to prison — this for contemptuous conduct. While in the county prison, plaintiff was allegedly subjected to various abuses and forced to reveal information critical to and necessary for his defense at re-trial. The Commonwealth’s attempt to re-try plaintiff was successfully blocked by decision of the Pennsylvania Superior Court, grounded upon double jeopardy considerations. See Commonwealth v. Haefner, 264 Pa.Super. 144, 399 A.2d 707 (1979). We dismissed plaintiff’s first suit because it was time-barred. See Haefner v. County of Lancaster, 520 F.Supp. 131 (E.D.Pa.1981), aff’d, 681 F.2d 806 (3d Cir. 1982). Plaintiff’s current suit is predicated upon the same general events outlined above; they commenced in August, 1975. Additional allegations are contained in the instant suit, which, plaintiff urges, assert a new dimension to the prior suit and obstruct or exclude application of res judicata. Specifically, plaintiff now informs the Court that he was subjected to multiple prosecutions. The first lawsuit was predicated upon false charges inspired by defendant K. Burkey. The case at bar, plaintiff asserts, is grounded in false charges inspired by defendant Klivansky. Unlike the “Burkey-inspired” charges, the “Klivansky-inspired” charges were not the subject of the mistrial which eventually resulted in litigation before the Pennsylvania Superior Court. Moreover, plaintiff now argues that the “Klivansky-inspired” charges were outstanding until March 7, 1980, at which time they were nolle prossed on the basis of insufficient evidence. The unlawful conspiracy now alleged and relating to the “Klivansky-inspired” charges includes defendants’ supposed failure to comply with a Court order requiring them to expunge plaintiff’s arrest record. See Commonwealth v. Haefner, 291 Pa.Super. 604, 436 A.2d 665 (1981). We turn now" }, { "docid": "18838918", "title": "", "text": "defendants accrued on October 4,1979. Suit was instituted two years and one day later, on October 5,1981. The operative facts underlying the federal claim are analogous to the state tort of false arrest and imprisonment and assault and battery. Pennsylvania requires that such claims be brought within two years. Salaneck v. State Trooper Eric Olena, 558 F.Supp. 370 (E.D.Pa.1983); Haefner v. Lancaster County, 520 F.Supp. 131, 132 (E.D.Pa.1981), aff'd, 681 F.2d 806 (3d Cir.1982); 42 Pa.C.S.A. § 5524(1). Fed.R. Civ.P. 6(a), which governs the resolution of this issue, specifically provides that “day of the act ... from which the designated period of time begins to run shall not be included” in determining whether suit was brought in a timely manner. Accordingly, October 5, 1979, the day after the complained of conduct occurred, is the first day which we consider in determining whether suit was filed within the prescribed time. Since suit was instituted on October 5,1981, we conclude that this action was brought within the two-year period and is not time-barred. The individual defendants also argue that plaintiffs have failed to state a claim under § 1983 because when plaintiffs were arrested they, defendants, had probable cause and that the arguable use of some force to effectuate the valid arrests was privileged and not excessive. Hence, the individual defendants argue that Count I should be dismissed. We begin our analysis of this issue with the observation that state actors who make an arrest incur no § 1983 liability when they act in good faith and with probable cause, Pierson v. Ray, 386 U.S. 547, 555, 87 S.Ct. 1213, 1218, 18 L.Ed.2d 288 (1967) or pursuant to a valid arrest warrant. Baker v. McCollan, 443 U.S. 137, 143-44, 99 S.Ct. 2689, 2694, 61 L.Ed.2d 433 (1979); Druckenmiller v. United States, 548 F.Supp. 193, 194 (E.D.Pa.1982). In specifically addressing this issue, Chief Justice Warren observed that a policeman’s lot is not so unhappy that he must choose between being charged with dereliction of duty if he does not arrest when he has probable cause, and being mulcted in damages if he does." }, { "docid": "19720222", "title": "", "text": "dismiss will be granted. The doctrine of res judicata is intended to ensure the finality of judgments and prevent repetitive litigation. Brown v. Felsen, 442 U.S. 127, 131, 99 S.Ct. 2205, 2209, 60 L.Ed.2d 767 (1979). The doctrine operates to bar not only identical repetitive suits but also to prevent the assertion of a different legal theory which arises from the same liability creating conduct, and which the party had reasonable opportunity to present in the original suit____ A party is not entitled to a second lawsuit merely because he states a new theory of recovery. Seamon v. Bell Telephone Co., 576 F.Supp. 1458, 1460 (W.D.Pa.1983), aff'd mem., 740 F.2d 958 (3d Cir.1984). See also Haefner v. County of Lancaster, 543 F.Supp. 264, 266-67 (E.D.Pa.1982), aff'd mem., 707 F.2d 1401 (3d Cir.1983); Miller v. United States, 438 F.Supp. 514, 520-23 (E.D.Pa.1977). Plaintiff argues that in Sendi I he sought damages only for commissions which he had allegedly earned prior to his November 6, 1981 termination date. Sendi II is not barred, he contends, because it is based on a claim that defendant breached an employment agreement by preventing plaintiff from working and earning commissions after November 6. In my view, the claims in Sendi I and II cannot be so neatly differentiated. Both cases center on the question whether Corn-ten had the right to accept Sendi’s resignation on November 6, 1981 and to deny his request to remain on the payroll for a period of time. The cases “emerge from the same transaction and share precisely the same nucleus of operative facts.” Poe v. John Deere Co., 695 F.2d 1103, 1106 (8th Cir.1982). Sendi II “is nothing more than an attempt to apply different legal labels to the facts” of Sendi I. Id. at 1107. See also Seamon, 576 F.Supp. at 1460. Moreover, although I denied plaintiff leave to amend his complaint in Sendi I, he did not confine himself to a claim for commissions allegedly earned before November 6, 1981. In opposing Comten’s motion for summary judgment, Sendi argued and presented evidence to show that Comten’s personnel policy manual" } ]

[ { "docid": "22634995", "title": "", "text": "while resisting their entry into his home. In his testimony at trial the petitioner said that he and his companions had gone to the victim’s home hoping to pawn the shotgun, and that the victim was accidentally killed while the petitioner was presenting the gun to him for inspection. Upon remand, the case again came to trial before a jury. This time the prosecutor did not, of course, offer the alleged confessions in evidence. But he did read to the jury the petitioner’s testimony at the prior trial— testimony which placed the petitioner, shotgun in hand, at the scene of the killing. The testimony was read over the objection of defense counsel, who argued that the petitioner had been induced to testify at the former trial only because of the introduction against him of the inadmissible confessions. The petitioner was again convicted, and the Court of Appeals affirmed. We granted certiorari to decide whether the petitioner’s trial testimony was the inadmissible fruit of the illegally procured confessions. In this case we need not and do not question the general evidentiary rule that a defendant’s testimony at a former trial is admissible in evidence against him in later proceedings. A defendant who chooses to testify waives his privilege against compulsory self-incrimination with respect to the testimony he gives, and that waiver is no less effective or complete because the defendant may have been motivated to take the witness stand in the first place only by reason of the strength of the lawful evidence adduced against him. Here, however, the petitioner testified only after the Government had illegally introduced into evidence three confessions, all wrongfully obtained, and the same principle that prohibits the use of confessions so procured also prohibits the use of any testimony impelled thereby — the fruit of the poisonous tree, to invoke a time-worn metaphor. For the “essence of a provision forbidding the acquisition of evidence in a certain way is that not merely evidence so acquired shall not be used before the Court but that it shall not be used at all.” Silverthorne Lumber Co. v. United" } ]

[ { "docid": "17262452", "title": "", "text": "resentencing, the State read much of Mr. Littlejohn’s testimony into the record, but redacted portions dealing with the Tingle incident. See State R., Vol. V, Resentencing Tr. at 799-800 (“But for the record, [the testimony] goes from page 58 to page 198 with the exception of the redacted portions.... ”). On direct appeal from the 2000 resentencing, the OCCA rejected Mr. Littlejohn’s argument that the reading of his testimony was unlawful and should result in another resen-tencing. See Littlejohn II, 85 P.3d at 298-99. Assuming arguendo that his testimony should have been suppressed under Harrison, the OCCA found that any error was harmless beyond a reasonable doubt. See id. The district court found that Harrison was not clearly established federal law as applied to Mr. Littlejohn’s case because Harrison involved an illegally obtained confession, and otherwise dealt primarily with the fruit-of-the-poisonous-tree doctrine—concepts not at issue here. In any event, applying Brecht, it found that any error under Harrison did not have a substantial or injurious effect on Mr. Littlejohn’s resentencing trial. We agree with the district court that Harrison does not supply clearly established federal law on these facts. Consequently, we need not decide whether the admission of Mr. Littlejohn’s testimony was harmless error. “ ‘[C]learly established Federal law1 in § 2254(d)(1) ‘refers to the holdings, as opposed to the dicta, of th[e Supreme] Court’s decisions as of the time of the relevant state-court decision.’ ” Musladin, 549 U.S. at 74, 127 S.Ct. 649 (quoting Williams, 529 U.S. at 412, 120 S.Ct. 1495). It “consists of Supreme Court holdings in cases where the facts are at least closely-related or similar to the case sub judice.” House, 527 F.3d at 1016. Whether clearly established federal law exists is a threshold question and is “analytically dispositive in the § 2254(d)(1) analysis.” Id. at 1017. In Harrison, the prosecution introduced three confessions that the petitioner allegedly made while he was in custody. See 392 U.S. at 220, 88 S.Ct. 2008. After the admission of the confessions, the petitioner took the stand in order to offer his own version of the events in question." }, { "docid": "17262451", "title": "", "text": "his ex-girlfriend and their baby” in Tulsa, Oklahoma. Aplt. Opening Br. at 81. Another individual ultimately was convicted of charges relating to the murder of Mr. Littlejohn’s ex-girlfriend and baby. See id. (citing Young v. State, 992 P.2d 332 (Okla.Crim.App.1998)). On direct appeal, the OCCA found that the State had offered no “true corroborating evidence” for Mr. Tingle’s testimony. See Littlejohn I, 989 P.2d at 911. Accordingly, it found that the admission of the testimony violated Mr. Littlejohn’s due process rights and that the error was not harmless beyond a reasonable doubt in that it contributed to the jury’s finding of the continuing-threat aggravator. See id. Thus, based in part on this finding, it remanded for the resentencing proceeding, which ultimately took place in 2000. See id. at 911-12. Mr. Littlejohn testified during the 1994 proceedings. See State R., Vol. VIII, 1994 Trial Tr., at 58-198 (Test, of Mr. Littlejohn). In a short portion of his testimony, he denied confessing anything to Mr. Tingle while in his cell. See id. at 107-08. At the 2000 resentencing, the State read much of Mr. Littlejohn’s testimony into the record, but redacted portions dealing with the Tingle incident. See State R., Vol. V, Resentencing Tr. at 799-800 (“But for the record, [the testimony] goes from page 58 to page 198 with the exception of the redacted portions.... ”). On direct appeal from the 2000 resentencing, the OCCA rejected Mr. Littlejohn’s argument that the reading of his testimony was unlawful and should result in another resen-tencing. See Littlejohn II, 85 P.3d at 298-99. Assuming arguendo that his testimony should have been suppressed under Harrison, the OCCA found that any error was harmless beyond a reasonable doubt. See id. The district court found that Harrison was not clearly established federal law as applied to Mr. Littlejohn’s case because Harrison involved an illegally obtained confession, and otherwise dealt primarily with the fruit-of-the-poisonous-tree doctrine—concepts not at issue here. In any event, applying Brecht, it found that any error under Harrison did not have a substantial or injurious effect on Mr. Littlejohn’s resentencing trial. We agree with the" }, { "docid": "21810494", "title": "", "text": "it analyzes whether their cumulative effect on the outcome of the trial is such that collectively they can no longer be determined to be harmless.” (quoting Workman v. Mullin, 342 F.3d 1100, 1116 (10th Cir. 2003))). “In the federal habeas context,” we aggregate the “federal constitutional errors, and [our precedent emphasizes that] such errors will suffice to permit relief under [the] cumulative error doctrine only when the constitutional errors committed in the state court trial so fatally infected the trial that they violated the trial’s fundamental fairness.” Littlejohn I, 704 F.3d at 868 (quoting Matthews v. Workman, 577 F.3d 1175, 1195 n.10 (10th Cir. 2009)); see Grant, 727 F.3d at 1025 (“Only if the errors ‘so fatally infected the trial that they violated the trial’s fundamental fairness’ is reversal appropriate.” (quoting Matthews, 577 F.3d at 1195 n.10)). It is not lost on us, however, that, “as easy as the standard may be to state in principle,.it admits of few easy answers in application.” Grant, 727 F.3d at 1025. But “wherever the cumulative error line may fall, it is not crossed often.” Id. Mr. Littlejohn argues that two errors in addition to Mr. Rowan’s alleged ineffective assistance prejudicially impacted the jury’s death-penalty determination at his resen-tencing: (1) “[t]he failure to provide adequate notice of the testimony of Bill Meers concerning an alleged admission and an alleged threat uttered by Mr. Littlejohn,” Aplt’s Opening Br. at 57; and (2) “Confrontation Clause violations concerning who fired the fatal shot,” id. As detailed in Littlejohn I, the first alleged error relates to testimony from Bill Meers, the victim’s brother, that “Mr. Litt-lejohn told him that ‘the motherfucker’s [i.e., his brother’s] dead and he ain’t coming back’ ” and “I killed the motherfucker, I’ll kill you.” 704 F.3d at 832 (quoting State R., Vol. YI, Resentencing Tr. at 21 (Test, of Bill Meers)). The prosecution failed to provide Mr. Littlejohn with notice of its intention to introduce these statements until the fifth day of the resentencing. Despite the delinquent disclosure, the state court provided Mr. Littlejohn’s counsel with “three days to prepare a response to" }, { "docid": "17262524", "title": "", "text": "all that Brecht required in this case. .We acknowledge that our decision in Humphreys v. Gibson, 261 F.3d 1016 (10th Cir.2001), may at first blush indicate that Harrison has broader applicability than is suggested here. In Humphreys, the petitioner objected to the admission at resentencing of his own testimony from the guilt stage of his initial trial. See id. at 1023. He argued that he was compelled to testify after the trial court erred in \"refusing] to instruct on first degree manslaughter,” his separate theory of the case. Id. However, the OCCA held that the trial court did not err in refusing the instruction. Id. We concluded that, to the extent that the petitioner was \"impelled” to testify, he was not \"wrongfully impelled.” Id. However, in referencing Harrison, we did not hold that it was clearly established federal law. See id. To the contrary, we noted that \"Harrison does not directly address [the petitioner’s] situation,” id. (citing Elstad, 470 U.S. at 316-17, 105 S.Ct. 1285), but nonetheless (in the alternative) we considered his argument because it was without merit, see id. In any event, the petitioner in Humphreys clearly framed his claim to establish that the prosecution’s use of his testimony \"violated his Fifth Amendment privilege against self-incrimination.” Id. This is substantially different than Mr. Littlejohn’s argument: that the reading of his testimony violated his due process rights and that the holding of Harrison is sufficiently broad to outlaw it. For these reasons, Humphreys does not advance Mr. Littlejohn’s contention that Harrison's holding is clearly established federal law beyond the Fifth Amendment confession context. . The OCCA in this very case questioned whether Harrison could be limited to the Fifth Amendment context. See Littlejohn II, 85 P.3d at 298 (\"We are not convinced Hanison can be so easily limited because in both instances [the Fifth Amendment and due process contexts], the defendant is complaining that he was, more or less, forced to testify because the State used his inadmissible confession against him.”). . Mr. Littlejohn suggests in the alternative that, \"since the state court at least assumed Hanison applied, [§" }, { "docid": "17262449", "title": "", "text": "prior ability to cross-examine an unavailable declarant in a prior proceeding that was not “significantly limited in any way” counsels in favor of a finding of no underlying violation. Green, 399 U.S. at 166, 90 S.Ct. 1930. Here, we find the same considerations found in Green weigh in favor of a finding of harmless error because Mr. Littlejohn’s counsel was not at all precluded from thoroughly cross-examining Ms. Ware and Ms. Harris at the 1994 trial. Consequently, Mr. Littlejohn’s arguments under the Confrontation Clause must be rejected. On the facts presented, we cannot say that “[g]rave doubt” exists as to the effect of the (assumed) Confrontation Clause error or that “the matter is so evenly balanced that ... [we feel] in virtual equipoise regarding the error’s harmlessness.” Patton v. Mullin, 425 F.3d 788, 800-01 (10th Cir.2005) (quoting O’Neal, 513 U.S. at 435, 115 S.Ct. 992) (internal quotation marks omitted). E. Impelling of Testimony Mr. Littlejohn next claims that the re-sentencing court erred in admitting redact ed portions of the testimony that he gave during the 1994 trial because he was “impelled” to testify in order to deny erroneous allegations made by a jailhouse informant. He claims that the prosecution’s use of his 1994 testimony violated Harrison v. United States, which prohibits the introduction into evidence of a defendant’s testimony that is “impelled” by the evidentiary use of the same defendant’s illegally procured confessions. 392 U.S. 219, 222, 88 S.Ct. 2008, 20 L.Ed.2d 1047 (1968); see id. at 223 n. 9, 88 S.Ct. 2008 (“[W]e decide here only a case in which the prosecution illegally introduced the defendant’s confession in evidence against him at trial in its case-in-chief.”). Harrison bars the use of such testimony of a defendant because it is deemed to be “the fruit of the poisonous tree” of his illegal confessions. Id. at 222, 88 S.Ct. 2008. At the penalty phase of Mr. Littlejohn’s 1994 trial, the State elicited testimony from Lawrence Tingle, a “jailhouse snitch,” who claimed that, while incarcerated, Mr. Littlejohn confessed both to killing Mr. Meers and also to “hiring a hit man to kill" }, { "docid": "17262457", "title": "", "text": "confession at trial, compelling the defendant to testify in rebuttal” but, on the other hand, “the Court has refused to find that a defendant who confesses, after being falsely told that his codefendant has turned State’s evidence, does so involuntarily”). It is apparent that the rule Mr. Little-john advocates for involves the application of Harrison’s remedial measure (i.e., suppression) where a defendant’s prior testimony is impelled by an alleged due process violation. To adopt such a rule would require us inappropriately to extend Harrison to a novel context. See Premo v. Moore, — U.S.-, 131 S.Ct. 733, 743, 178 L.Ed.2d 649 (2011) (“[Njovelty ... [that] renders [a] relevant rule less than ‘clearly established’ ... provides a reason to reject it under AEDPA.”). Whether Harrison ever may be extended beyond its Fifth Amendment confession context is not the question before us. Rather, giving due deference to state court adjudications as AEDPA commands, our threshold concern must be whether Harrison’s holding furnished the OCCA with clearly established federal law to resolve Mr. Littlejohn’s argument. We answer that question in the negative. For that reason, we reject Mr. Littlejohn’s impelled-testimony argument. F. Inconsistent Theories Mr. Littlejohn argues that the prosecution inappropriately took inconsistent positions in his trial and the earlier trial of his co-defendant, Mr. Bethany. Specifically, he contends that, in their separate trials, the prosecution first pointed the finger at Mr. Bethany, and then at Mr. Littlejohn, as the person who fired the shot that killed Kenneth Meers. At the 1994 trial, the State prosecuted Mr. Littlejohn for first degree murder with malice aforethought and, alternatively, for felony murder. However, earlier in March 1993, Mr. Littlejohn claims that the same prosecutor insinuated at Mr. Bethany’s trial that he was the shooter of Mr. Meers. In particular, the prosecutor allegedly “made several arguments that Mr. Bethany ... could have had a gun,” that two witnesses across the street “said that the taller man (Mr. Bethany) was the shooter,” and that “Mr. Bethany came up with his version [of the story, i.e., blaming Mr. Littlejohn] after being warned by police that Mr. Littlejohn was" }, { "docid": "17262448", "title": "", "text": "1930, 26 L.Ed.2d 489 (1970) (referencing Mattox v. United States, 156 U.S. 237, 242-43, 15 S.Ct. 337, 39 L.Ed. 409 (1895)). However, we disagree that this facet of the assumed violation of Mr. Littlejohn’s Confrontation Clause rights definitively tilts the scales in favor of a finding of reversible prejudice. The admission of out-of-court testimony in violation of a defendant’s confrontation rights entails an inquiry somewhat different than that used to assess unconstitutional restrictions on the ability of the defendant to test the witness at trial. See Coy, 487 U.S. at 1020, 108 S.Ct. 2798 (noting that the Confrontation Clause encompasses numerous “implicit” rights, including “the right to cross-examine [and ] the right to exclude out-of-court statements” (citation omitted)). Specifically, the admission of out-of-court testimony in violation of the Confrontation Clause will invariably result in the inability of a jury to assess the demeanor of the declar-ant. However, that does not mean that, in such circumstances, the application of harmless-error review is a futile exercise. Indeed, in this context, the Supreme Court has recognized that counsel’s prior ability to cross-examine an unavailable declarant in a prior proceeding that was not “significantly limited in any way” counsels in favor of a finding of no underlying violation. Green, 399 U.S. at 166, 90 S.Ct. 1930. Here, we find the same considerations found in Green weigh in favor of a finding of harmless error because Mr. Littlejohn’s counsel was not at all precluded from thoroughly cross-examining Ms. Ware and Ms. Harris at the 1994 trial. Consequently, Mr. Littlejohn’s arguments under the Confrontation Clause must be rejected. On the facts presented, we cannot say that “[g]rave doubt” exists as to the effect of the (assumed) Confrontation Clause error or that “the matter is so evenly balanced that ... [we feel] in virtual equipoise regarding the error’s harmlessness.” Patton v. Mullin, 425 F.3d 788, 800-01 (10th Cir.2005) (quoting O’Neal, 513 U.S. at 435, 115 S.Ct. 992) (internal quotation marks omitted). E. Impelling of Testimony Mr. Littlejohn next claims that the re-sentencing court erred in admitting redact ed portions of the testimony that he gave during the" }, { "docid": "17262453", "title": "", "text": "district court that Harrison does not supply clearly established federal law on these facts. Consequently, we need not decide whether the admission of Mr. Littlejohn’s testimony was harmless error. “ ‘[C]learly established Federal law1 in § 2254(d)(1) ‘refers to the holdings, as opposed to the dicta, of th[e Supreme] Court’s decisions as of the time of the relevant state-court decision.’ ” Musladin, 549 U.S. at 74, 127 S.Ct. 649 (quoting Williams, 529 U.S. at 412, 120 S.Ct. 1495). It “consists of Supreme Court holdings in cases where the facts are at least closely-related or similar to the case sub judice.” House, 527 F.3d at 1016. Whether clearly established federal law exists is a threshold question and is “analytically dispositive in the § 2254(d)(1) analysis.” Id. at 1017. In Harrison, the prosecution introduced three confessions that the petitioner allegedly made while he was in custody. See 392 U.S. at 220, 88 S.Ct. 2008. After the admission of the confessions, the petitioner took the stand in order to offer his own version of the events in question. The jury ultimately found him guilty, but his conviction was reversed on direct appeal on the grounds that “[his] confessions had been illegally obtained and were therefore inadmissible in evidence against him.” Id. On remand, the prosecution read into evidence relevant portions of the petitioner’s testimony over the defense’s objection—testimony that inferentially incriminated the petitioner. See id. at 221, 88 S.Ct. 2008. The Supreme Court held that the prosecution’s use of the petitioner’s testimony was problematic because “[he] testified only after the Government had illegally introduced into evidence three confessions, all wrongfully obtained.” Id. at 222, 88 S.Ct. 2008. The Court held that “impelled” testimony obtained as a result of a Fifth Amendment violation (i.e., the admission of the illegally obtained confessions) was inadmissible as the “fruit of the poisonous tree.” Id. It concluded that the petitioner’s first-trial testimony was so impelled and, consequently, he was prejudiced by admission of his prior testimony. See id. at 224-26, 88 S.Ct. 2008. By its terms, Harrison is applicable only where a defendant’s testimony is impelled by the" }, { "docid": "17568921", "title": "", "text": "any confession made by a prisoner while within the exclusive jurisdiction of the juvenile court. Id. The circuit court found that Harrison had been within the exclusive jurisdiction of the juvenile court from the moment he committed his crime until the juvenile court waived jurisdiction. Id. at 227. As a result, the D.C. Circuit remanded for a new trial. Id. at 229. Because it could no longer rely on Harrison’s out-of-court confessions, the government introduced portions of Harrison’s testimony from the earlier trial during its case-in-chief. Harrison v. United States (“Harrison II”), 387 F.2d 203, 208 (D.C.Cir.1967), rev’d on other grounds, 392 U.S. 219, 88 S.Ct. 2008, 20 L.Ed.2d 1047 (1968). The D.C. Circuit held that reading Harrison’s prior trial testimony into the record did not violate his rights. In particular, it concluded that the “fruit of the poisonous tree” doctrine was not applicable because the relationship between the erroneous admission of the jailhouse confes sions and Harrison’s subsequent trial testimony was so attenuated as to dissipate any taint. Id. at 209-10. The Supreme Court reversed. It held that “the same principle that prohibits the use of confessions so procured also prohibits the use of any testimony impelled thereby — the fruit of the poisonous tree, to invoke a time-worn metaphor.” Harrison, 392 U.S. at 222, 88 S.Ct. 2008. The Supreme Court relied on the general rule concerning the fruit of the poisonous tree doctrine articulated in Silverthone Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319 (1920). It stated that the “ ‘essence of a provision forbidding the acquisition of evidence in a certain way is that not merely evidence so acquired shall not be used before the Court but that it shall not be used at all.’ ” Harrison, 392 U.S. at 222, 88 S.Ct. 2008 (quoting Silverthorne, 251 U.S. at 392, 40 S.Ct. 182). The Court held that if Harrison had testified “in order to overcome the impact of confessions illegally obtained and hence improperly introduced, then his testimony was tainted by the same illegality that rendered the confessions themselves inadmissible.” Id." }, { "docid": "17262455", "title": "", "text": "improper use of his own unconstitutionally obtained confessions in violation of the Fifth Amendment. See id. at 222, 88 S.Ct. 2008 (“[T]he same principle that prohibits the use of confessions so procured also prohibits the use of any testimony impelled thereby—the fruit of the poisonous tree.”); see Oregon v. Elstad, 470 U.S. 298, 316-17, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985) (“If the prosecution has actually violated the defendant’s Fifth Amendment rights by introducing an inadmissible confession at trial, compelling the defendant to testify in rebuttal, the rule announced in Harrison ..., precludes use of that testimony on retrial.” (emphasis added)). Harrison was concerned with the Fifth Amendment’s prohibition on law enforcement’s unlawful extraction of confessions from defendants. See, e.g., Elstad, 470 U.S. at 316-17, 105 S.Ct. 1285; United States v. Gianakos, 415 F.3d 912, 919 (8th Cir.2005) (noting that Harrison sought to prevent the government from benefitting from the “fruit of an illegally obtained confession” (emphasis added)); Luna v. Massachusetts, 354 F.3d 108, 112 (1st Cir.2004) (“The premise of Harrison was that the original confession (actually several confessions) had been wrongfully obtained under federal law.” (citation omitted)); cf. Cosby v. Sigler, 435 F.3d 702, 707 (7th Cir.2006) (“Since [the petitioner’s] statement was not illegally obtained, and therefore not improperly admitted, the state bears no ... burden [under Harrison]” to “show[ ] that her testimony was not compelled by the admission of the statement.” (emphasis added)). Here, there is no contention that the State wrongfully obtained a confession from Mr. Littlejohn in violation of the Fifth Amendment—or any other constitutional amendment, for that matter. Rather, these facts only involve Mr. Littlejohn’s alleged admissions-—that were freely made, without coercion—to a private actor, Mr. Tingle. When Mr. Tingle testified about these admissions, Mr. Littlejohn allegedly felt compelled to testify to offer his side of the story. This scenario may be many things, but it is not the stuff of Harrison. See Elstad, 470 U.S. at 316-17, 105 S.Ct. 1285 (noting that “the rule announced” in Harrison applies “[i]f the prosecution has actually violated the defendant’s Fifth Amendment rights by introducing an inadmissible" }, { "docid": "17262454", "title": "", "text": "The jury ultimately found him guilty, but his conviction was reversed on direct appeal on the grounds that “[his] confessions had been illegally obtained and were therefore inadmissible in evidence against him.” Id. On remand, the prosecution read into evidence relevant portions of the petitioner’s testimony over the defense’s objection—testimony that inferentially incriminated the petitioner. See id. at 221, 88 S.Ct. 2008. The Supreme Court held that the prosecution’s use of the petitioner’s testimony was problematic because “[he] testified only after the Government had illegally introduced into evidence three confessions, all wrongfully obtained.” Id. at 222, 88 S.Ct. 2008. The Court held that “impelled” testimony obtained as a result of a Fifth Amendment violation (i.e., the admission of the illegally obtained confessions) was inadmissible as the “fruit of the poisonous tree.” Id. It concluded that the petitioner’s first-trial testimony was so impelled and, consequently, he was prejudiced by admission of his prior testimony. See id. at 224-26, 88 S.Ct. 2008. By its terms, Harrison is applicable only where a defendant’s testimony is impelled by the improper use of his own unconstitutionally obtained confessions in violation of the Fifth Amendment. See id. at 222, 88 S.Ct. 2008 (“[T]he same principle that prohibits the use of confessions so procured also prohibits the use of any testimony impelled thereby—the fruit of the poisonous tree.”); see Oregon v. Elstad, 470 U.S. 298, 316-17, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985) (“If the prosecution has actually violated the defendant’s Fifth Amendment rights by introducing an inadmissible confession at trial, compelling the defendant to testify in rebuttal, the rule announced in Harrison ..., precludes use of that testimony on retrial.” (emphasis added)). Harrison was concerned with the Fifth Amendment’s prohibition on law enforcement’s unlawful extraction of confessions from defendants. See, e.g., Elstad, 470 U.S. at 316-17, 105 S.Ct. 1285; United States v. Gianakos, 415 F.3d 912, 919 (8th Cir.2005) (noting that Harrison sought to prevent the government from benefitting from the “fruit of an illegally obtained confession” (emphasis added)); Luna v. Massachusetts, 354 F.3d 108, 112 (1st Cir.2004) (“The premise of Harrison was that the original" }, { "docid": "17262456", "title": "", "text": "confession (actually several confessions) had been wrongfully obtained under federal law.” (citation omitted)); cf. Cosby v. Sigler, 435 F.3d 702, 707 (7th Cir.2006) (“Since [the petitioner’s] statement was not illegally obtained, and therefore not improperly admitted, the state bears no ... burden [under Harrison]” to “show[ ] that her testimony was not compelled by the admission of the statement.” (emphasis added)). Here, there is no contention that the State wrongfully obtained a confession from Mr. Littlejohn in violation of the Fifth Amendment—or any other constitutional amendment, for that matter. Rather, these facts only involve Mr. Littlejohn’s alleged admissions-—that were freely made, without coercion—to a private actor, Mr. Tingle. When Mr. Tingle testified about these admissions, Mr. Littlejohn allegedly felt compelled to testify to offer his side of the story. This scenario may be many things, but it is not the stuff of Harrison. See Elstad, 470 U.S. at 316-17, 105 S.Ct. 1285 (noting that “the rule announced” in Harrison applies “[i]f the prosecution has actually violated the defendant’s Fifth Amendment rights by introducing an inadmissible confession at trial, compelling the defendant to testify in rebuttal” but, on the other hand, “the Court has refused to find that a defendant who confesses, after being falsely told that his codefendant has turned State’s evidence, does so involuntarily”). It is apparent that the rule Mr. Little-john advocates for involves the application of Harrison’s remedial measure (i.e., suppression) where a defendant’s prior testimony is impelled by an alleged due process violation. To adopt such a rule would require us inappropriately to extend Harrison to a novel context. See Premo v. Moore, — U.S.-, 131 S.Ct. 733, 743, 178 L.Ed.2d 649 (2011) (“[Njovelty ... [that] renders [a] relevant rule less than ‘clearly established’ ... provides a reason to reject it under AEDPA.”). Whether Harrison ever may be extended beyond its Fifth Amendment confession context is not the question before us. Rather, giving due deference to state court adjudications as AEDPA commands, our threshold concern must be whether Harrison’s holding furnished the OCCA with clearly established federal law to resolve Mr. Littlejohn’s argument. We answer that" }, { "docid": "17262408", "title": "", "text": "telling Meers that he had shot his brother or that he threatened to kill Meers. Id. at 296 (footnotes omitted). In light of the fact that Mr. Littlejohn had time to meet the allegations with his own investigation, and the fact that the evidence of the continuing-threat aggravating factor was substantial, the OCCA concluded that the lack of sufficient notice of Mr. Meers’s testimony—in particular, regarding Mr. Littlejohn’s alleged threat—did not have the requisite prejudicial effect “on the jury’s verdict” to make the error grounds for reversal. R., Vol. 1, pt. II, at 236. Mr. Littlejohn argues on appeal that the OCCA’s decision was unreasonable for a few reasons. First, he contends that the error was demonstrably prejudicial in that it limited his trial counsel’s ability to mount a more robust defense. Second, he contends that the prosecutor improperly (and misleadingly) suggested to the jury that she had heard Mr. Littlejohn’s threat, further compounding the prejudice. Finally, he contends that the harm of the error was exacerbated by the prosecution’s rebuttal testimony of Judy Bush, a witness who testified in response to Mr. Little-john’s denial that he made the threat. It is well-established, as a matter of federal law, that “a defendant must have a meaningful opportunity to deny or explain the State’s evidence used to procure a death sentence.” Walker v. Gibson, 228 F.3d 1217, 1240 (10th Cir.2000) (quoting Duvall v. Reynolds, 139 F.3d 768, 797 (10th Cir.1998)), abrogated on other grounds by Neill v. Gibson, 278 F.3d 1044, 1057 n. 5 (10th Cir.2001); see Gardner, 430 U.S. at 362, 97 S.Ct. 1197 (“We conclude that petitioner was denied due process of law when the death sentence was imposed, at least in part, on the basis of information which he had no opportunity to deny or explain.”); see also Gray v. Netherland, 518 U.S. 152, 163-65, 116 S.Ct. 2074, 135 L.Ed.2d 457 (1996); Wilson v. Sirmons, 536 F.3d 1064, 1102 (10th Cir.2008) (“[W]e construe [the petitioner’s] claim to allege that the late notice deprived him of his ability to provide a proper defense.”). Furthermore, “while ‘[a] defendant’s right to" }, { "docid": "17568922", "title": "", "text": "reversed. It held that “the same principle that prohibits the use of confessions so procured also prohibits the use of any testimony impelled thereby — the fruit of the poisonous tree, to invoke a time-worn metaphor.” Harrison, 392 U.S. at 222, 88 S.Ct. 2008. The Supreme Court relied on the general rule concerning the fruit of the poisonous tree doctrine articulated in Silverthone Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319 (1920). It stated that the “ ‘essence of a provision forbidding the acquisition of evidence in a certain way is that not merely evidence so acquired shall not be used before the Court but that it shall not be used at all.’ ” Harrison, 392 U.S. at 222, 88 S.Ct. 2008 (quoting Silverthorne, 251 U.S. at 392, 40 S.Ct. 182). The Court held that if Harrison had testified “in order to overcome the impact of confessions illegally obtained and hence improperly introduced, then his testimony was tainted by the same illegality that rendered the confessions themselves inadmissible.” Id. at 223, 88 S.Ct. 2008. The Court placed the burden on the government to show that its illegal action did not induce Harrison’s testimony, and found the government had not met that burden. Id. at 225, 88 S.Ct. 2008. B. Harrison Applies to the States In evaluating the validity of Mr. Lujan’s convictions, the California Court of Appeal conducted a harmful error analysis that considered Mr. Lujan’s trial testimony as independent evidence of his guilt. In reviewing Mr. Lujan’s federal habeas petition, the district court concluded that this analysis resulted in a decision that was contrary to the clearly established federal law of Harrison. Respondent appeals this determination. Respondent argues that, because the Supreme Court’s decision in Harrison does not interpret any provision of federal law applicable to the States, Harrison is not clearly established federal law entitling Petitioner to federal habeas relief. See 28 U.S.C. § 2254(d)(1). In Harrison, the confessions were illegally procured according to rules applicable only to federal prosecutions. For this reason, Respondent argues that “Harrison was of non-constitutional dimension applicable" }, { "docid": "17262450", "title": "", "text": "1994 trial because he was “impelled” to testify in order to deny erroneous allegations made by a jailhouse informant. He claims that the prosecution’s use of his 1994 testimony violated Harrison v. United States, which prohibits the introduction into evidence of a defendant’s testimony that is “impelled” by the evidentiary use of the same defendant’s illegally procured confessions. 392 U.S. 219, 222, 88 S.Ct. 2008, 20 L.Ed.2d 1047 (1968); see id. at 223 n. 9, 88 S.Ct. 2008 (“[W]e decide here only a case in which the prosecution illegally introduced the defendant’s confession in evidence against him at trial in its case-in-chief.”). Harrison bars the use of such testimony of a defendant because it is deemed to be “the fruit of the poisonous tree” of his illegal confessions. Id. at 222, 88 S.Ct. 2008. At the penalty phase of Mr. Littlejohn’s 1994 trial, the State elicited testimony from Lawrence Tingle, a “jailhouse snitch,” who claimed that, while incarcerated, Mr. Littlejohn confessed both to killing Mr. Meers and also to “hiring a hit man to kill his ex-girlfriend and their baby” in Tulsa, Oklahoma. Aplt. Opening Br. at 81. Another individual ultimately was convicted of charges relating to the murder of Mr. Littlejohn’s ex-girlfriend and baby. See id. (citing Young v. State, 992 P.2d 332 (Okla.Crim.App.1998)). On direct appeal, the OCCA found that the State had offered no “true corroborating evidence” for Mr. Tingle’s testimony. See Littlejohn I, 989 P.2d at 911. Accordingly, it found that the admission of the testimony violated Mr. Littlejohn’s due process rights and that the error was not harmless beyond a reasonable doubt in that it contributed to the jury’s finding of the continuing-threat aggravator. See id. Thus, based in part on this finding, it remanded for the resentencing proceeding, which ultimately took place in 2000. See id. at 911-12. Mr. Littlejohn testified during the 1994 proceedings. See State R., Vol. VIII, 1994 Trial Tr., at 58-198 (Test, of Mr. Littlejohn). In a short portion of his testimony, he denied confessing anything to Mr. Tingle while in his cell. See id. at 107-08. At the 2000" }, { "docid": "17262413", "title": "", "text": "a criminal proceeding ... if the harmlessness of the error is in grave doubt, relief must be granted.” O’Neal v. McAninch, 513 U.S. 432, 440, 115 S.Ct. 992, 130 L.Ed.2d 947 (1995) (emphasis added); Bland, 459 F.3d at 1009 (“[A] ‘substantial and injurious effect’ exists when the court finds itself in ‘grave doubt’ about the effect of the error on the jury’s verdict.” (quoting O’Neal, 513 U.S. at 435, 115 S.Ct. 992)); accord United States v. Lawson, 677 F.3d 629, 644 n. 19 (4th Cir.2012). “‘Grave doubt’ exists where the issue of harmlessness is ‘so evenly balanced that [the court] feels [itself] in virtual equipoise as to the harmlessness of the error.’ ” Bland, 459 F.3d at 1009-10 (alterations in original) (quoting O’Neal, 513 U.S. at 435, 115 S.Ct. 992); see DeRosa, 679 F.3d at 1233. We agree with the district court that the “lack of sufficient notice of Mr. Meers’ testimony [did not have] a substantial and injurious effect on the jury’s verdict.” R., Vol. 1, pt. II, at 236. In the time that the state trial court gave him, Mr. Little-john was able to secure the testimony of Sgt. Grimsley, which aided his cause. This was significant testimony, in that Sgt. Grimsley was head of courtroom security. Even if he had more time, it is questionable whether Mr. Littlejohn could have obtained more probative evidence on the subject at hand. Indeed, as the district court noted, “Sgt. ... Grimsley testified that he had received an inquiry from defense counsel on Friday afternoon regarding the identities of the guards assigned to Petitioner at his first trial; however, despite an extensive search, issues with record keeping prevented him from discovering this information.” Id. at 234. Furthermore, Mr. Littlejohn was able to offer his own testimony in rebuttal, which directly related to the matter at issue, in that he was the alleged speaker of the threat. While three days to prepare a defense against a statement made many years pri- or is not necessarily a substantial amount of time, Mr. Littlejohn fails to establish that having more time to conduct further" }, { "docid": "17262405", "title": "", "text": "life imprisonment without the possibility of parole sentencing option [in Oklahoma],” Littlejohn II, 85 P.3d at 293, we are constrained to apply precedent that-relying on Simmons, Shafer, and Kelly on substantially similar facts—compels the denial of relief, see, e.g., Welch, 639 F.3d at 1005 (“The trial court’s response to the jury’s questions did not negate or contradict any of these [three] choices; each were explicitly set forth in the jury instructions and clearly presented in the verdict form.”); see also McCracken, 268 F.3d at 980-81. In sum, for the foregoing reasons, we reject Mr. Little-john’s first argument on appeal. B. Notice of Testimony Mr. Littlejohn argues that the district court erred in finding harmless the constitutional error that occurred when the trial court permitted the State to elicit certain damaging testimony from a witness in sup port of its aggravating-factor presentation at sentencing, although the State had not given notice of this evidence. Bill Meers, the victim’s brother, testified that when he was leaving the courtroom after the first trial, Mr. Littlejohn made certain comments to him, including an admission regarding the killing and—most importantly, for present purposes—a threat to kill Meers. Specifically, Mr. Meers testified that Mr. Littlejohn told him, that “the motherfucker’s [i.e., his brother’s] dead and he ain’t coming back.” State R., Vol. VI, Resentencing Tr. at 21 (Test, of Bill Meers). And he testified further that Mr. Littlejohn said, “I killed the motherfucker, I’ll kill you.” Id. The court reporter captured and memorialized at least a portion of Mr. Littlejohn’s communications to Mr. Meers but, significantly, her transcript did not evince an admission or a threat by Mr. Littlejohn. See Aplt. Opening Br. at 33 (“The court reporter indeed captured an insensitive comment'by Mr. Littlejohn on exiting the courtroom after the 1994 sentencing, but it did not include either an admission or a threat.”). Mr. Littlejohn was provided no notice of the alleged admission or threat until the fifth day of the resentencing trial. See Littlejohn II, 85 P.3d at 294. At an in camera hearing, the court notified Mr. Littlejohn of the proposed testimony of" }, { "docid": "6206727", "title": "", "text": "claims this violated his Fifth Amendment privilege against self-incrimination, relying on Harrison v. United States, 392 U.S. 219, 88 S.Ct. 2008, 20 L.Ed.2d 1047 (1968). Harrison recognized, however, the general evidentiary rule that a defendant's testimony at a former trial is admissible in evidence against him in later proceedings. A defendant who chooses to testify waives his privilege against compulsory self-incrimination with respect to the testimony he gives, and that waiver is no less effective or complete because the defendant may have been motivated to take the witness stand in the first place only by reason of the strength of the lawful evidence adduced against him. Id. at 222, 88 S.Ct. 2008 (footnote omitted). Nonetheless, in Harrison, the defendant had testified at his first trial because the State had introduced his confessions, which the appellate court later determined to have been inadmissible. See id. at 220, 222, 88 S.Ct. 2008. The Court, thus, held that \"the same principle that prohibits the use of confessions so procured also prohibits the use of any testimony impelled thereby-the fruit of the poisonous tree.\" Id. at 222, 88 S.Ct. 2008. Harrison does not directly address Humphreys' situation. See Oregon v. Elstad, 470 U.S. 298, 316-17, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985) (noting Harrison applies where prosecution violated defendant's Fifth Amendment rights by introducing inadmissible confession). Hum-phreys, nonetheless, argues that, like Harrison, he was compelled to testify after the trial court refused to instruct on first degree manslaughter. See Appellant's Opening Br. at 37-38. Hurnphreys may have testified to support his manslaughter theory, but he could not have testified in response to the trial court's refusal to instruct on that lesser offense because the trial court did not refuse to give a manslaughter instruction until after Humphreys' testimony. See United States v. Bohle, 475 F.2d 872, 875-76 (2d Cir.1973). More to the point, the Oklahoma Court of Criminal Appeals, in Humphreys' original direct appeal, upheld the trial court's refusal to instruct on first degree manslaughter because there was no evidence supporting his theory that he killed the victim \"`without a design to effect death.'\"" }, { "docid": "17262437", "title": "", "text": "Mullin, 343 F.3d 1215, 1247-48 (10th Cir.2003) (holding that “the OCCA’s decision denying [the petitioner] relief on [his] claim” based, inter alia, on the prosecutor’s argument that “justice cries out for [a conviction]” was not an unreasonable application of Supreme Court precedent and did not result in a “fundamentally unfair trial” in light of the entirety of the record); see also Bland, 459 F.3d at 1026-27 (holding that prosecutor’s comment suggesting that the jury had the ability to prevent the defendant from ever harming anyone else “c[a]me close to the line,” but did not “cross[] it,” because it could be interpreted as implying a “duty to decide whether to sentence [the defendant] to death,” not a duty to so sentence him); accord United States v. Kinsella, 622 F.3d 75, 84-85 (1st Cir.2010). Consequently, Mr. Littlejohn’s argument must be rejected. The comments at issue were not so plainly “[and] fundamentally unfair as to deny [Mr. Littlejohn] due process.” Donnelly, 416 U.S. at 645, 94 S.Ct. 1868; see Smallwood v. Gibson, 191 F.3d 1257, 1275-76 (10th Cir.1999). D. Absent Witnesses Mr. Littlejohn next argues that the OCCA and district court erred in denying his claim based on a Confrontation Clause violation. Specifically, at his 1994 trial, two witnesses—Michelle Ware (Mr. Bethany’s girlfriend at the time of the murder) and Cecilia Harris (Ms. Ware’s sister)—• “offered testimony that Mr. Littlejohn made a statement implicitly admitting he was the shooter.” Aplt. Opening Br. at 56. The prosecution called them as witnesses, but ended up impeaching them in certain instances with prior inconsistent statements. Mr. Littlejohn’s trial counsel further impeached their testimony on the grounds of bias, and on multiple points of inconsistency. See, e.g., State R., Vol. V, 1994 Trial Tr. at 113 (Test, of Cecilia Harris) (showing inconsistencies in Ms. Harris’s story regarding Mr. Littlejohn’s location); id. at 98-95 (Test, of Michelle Ware) (pointing out the obvious bias in Ms. Ware’s testimony—viz., that she had a reason to testify that Mr. Bethany was not the shooter). In Mr. Littlejohn’s resen-tencing proceeding, the prosecution introduced•—over the objection of Mr. Little-john’s counsel—the 1994 testimony of" }, { "docid": "21810495", "title": "", "text": "fall, it is not crossed often.” Id. Mr. Littlejohn argues that two errors in addition to Mr. Rowan’s alleged ineffective assistance prejudicially impacted the jury’s death-penalty determination at his resen-tencing: (1) “[t]he failure to provide adequate notice of the testimony of Bill Meers concerning an alleged admission and an alleged threat uttered by Mr. Littlejohn,” Aplt’s Opening Br. at 57; and (2) “Confrontation Clause violations concerning who fired the fatal shot,” id. As detailed in Littlejohn I, the first alleged error relates to testimony from Bill Meers, the victim’s brother, that “Mr. Litt-lejohn told him that ‘the motherfucker’s [i.e., his brother’s] dead and he ain’t coming back’ ” and “I killed the motherfucker, I’ll kill you.” 704 F.3d at 832 (quoting State R., Vol. YI, Resentencing Tr. at 21 (Test, of Bill Meers)). The prosecution failed to provide Mr. Littlejohn with notice of its intention to introduce these statements until the fifth day of the resentencing. Despite the delinquent disclosure, the state court provided Mr. Littlejohn’s counsel with “three days to prepare a response to Mr. Meers’s statement ... [and] in fact, he did prepare a reasonably cogent affirmative rebuttal' case,” id. at 836. The second alleged error concerns the testimony of two witnesses from Mr. Litt-lejohn’s 1994 trial, both of whom testified that, Mr. Littlejohn made a statement implicitly admitting that he , (as opposed to Mr. Bethany) shot the victim. The state trial judge at the resentencing allowed the prosecution to read the testimony over Mr. Littlejohn’s objection that the prosecution had not made a sufficient showing concerning the witnesses’ unavailability. In reviewing Mr. Littlejohn’s case, the OCCA considered these claims of error, but not the ineffective-assistance claim that Mr. Littlejohn mounts in these federal proceedings. See Littlejohn, 85 P.3d 287, 296. Although we have held supra that his ineffective-assistance claim fails to evince the level of prejudice ■ required under Strickland, we include the assumed error resulting from Mr. Rowan’s alleged ineffective assistance in the cumulative-error analysis. See Hooks, 689 F.3d at 1195 (noting that any prejudice resulting from assumed deficient performance is properly considered in analyzing" } ]

[ { "docid": "22786468", "title": "", "text": "court erred in considering his 1993 conviction as a predicate conviction for purposes of sentencing him as a career offender. He argues that the certified, signed copy of his 1993 conviction relied on by the district court is constitutionally deficient under Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005), because it did not have an actual judge’s signature, but rather only contained an “Authorized Signature.” (Appellant’s Br. at 22.) We review the district court’s factual findings for clear error and its classification of Farrior as a career offender de novo. United States v. Johnson, 114 F.3d 435, 444 (4th Cir.1997); United States v. Dawkins, 202 F.3d 711, 714 (4th Cir.2000). In reviewing prior convictions to determine whether they count as a predicate offense for career-offender purposes, the Supreme Court has instructed us to re view “the charging document, the terms of a plea agreement or transcript of colloquy between judge and defendant in which the factual basis for the plea was confirmed by the defendant, or ... some comparable judicial record of this information.” Shepard, 544 U.S. at 26, 125 S.Ct. 1254. In keeping with Shepard, the district court relied on Farrior’s formal conviction records to determine the nature of his 1993 conviction. Specifically, the district court relied on a certified, signed copy of Farri- or’s 1993 conviction from the State of Connecticut Superior Court, the court of conviction, which was produced by the Government at the sentencing hearing. Even if this record only contained an authorized judicial signature, it was clearly sufficient under Shepard to establish the predicate nature of Farrior’s 1993 conviction. In any event, the district court found that the order was, in fact, signed by the presiding judge. We thus conclude that the district court did not err in counting Farrior’s 1993 conviction for purposes of sentencing him as a career offender. 2. Farrior also argues that his sentence was excessive and unreasonable. Under Gall v. United States, — U.S. -, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007), we review sentences under a deferential abuse-of-discretion standard. Id. at 591. At" } ]

[ { "docid": "10644184", "title": "", "text": "that Mr. Womack’s prior felony convictions qualified as predicate convictions for purposes of applying the career offender enhancement: a 1994 Illinois controlled substance conviction and a 2005 Illinois conviction under 625 ILCS 5/ll-204.1(a)(l) for aggravated fleeing. Mr. Womack objected, contending that the 1994 controlled substance conviction was too old to qualify as a predicate offense and that the 2005 aggravated fleeing conviction was not a crime of violence. The district court overruled Mr. Womack’s objections and accepted the findings and calculations of the PSR. With the application of the career offender enhancement, Mr. Womack’s base offense level was 37 and his criminal history category was VI, producing a guidelines range of 360 months’ to life imprisonment. After commenting that the “crack powder disparity argument [was] taken away” in this case, the district court sentenced Mr. Womack to 360 months’ imprisonment, at the lower end of the guidelines range. Mr. Womack now appeals the application of the career offender enhancement in the calculation of his guidelines sentence. He also maintains that the district court should have been free to disagree with, and depart from, the guidelines range. II DISCUSSION A. We review de novo whether a prior conviction qualifies as a predicate conviction for purposes of applying the career offender enhancement. See United States v. Woods, 576 F.3d 400, 408 (7th Cir.2009). We review sentences for reasonableness and presume that a sentence within a correctly calculated guidelines range is reasonable. Gall v. United States, 552 U.S. 38, 46-47, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007); United States v. Panaigua-Verdugo, 537 F.3d 722, 727 (7th Cir.2008). The career offender enhancement applies to any defendant who is at least eighteen years old at the time he committed the offense of conviction, whose offense of conviction is a “crime of violence or a controlled substance offense,” and who has at least two prior felony convictions of either a crime of violence or a controlled substance offense — i.e., two predicate offenses. See U.S.S.G. § 4Bl.l(a). Application of the career offender provision subjects a defendant to an enhanced base offense level and an automatic criminal" }, { "docid": "20782260", "title": "", "text": "§ 4B1.1(b)(B) of the Guidelines to calculate his sentencing range. We review the district court’s sentence for an abuse of discretion. Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 597, 169 L.Ed.2d 445 (2007); United States v. Austad, 519 F.3d 431, 434 (8th Cir.2008). We 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, 128 S.Ct. at 597. If the sentence is procedurally sound, we review “the substantive reasonableness of the sentence imposed under an abuse-of-discretion standard.” Id. “A sentence within the Guidelines range is accorded a presumption of substantive reasonableness on appeal.” United States v. Robinson, 516 F.3d 716, 717 (8th Cir.2008). Sawyer does not argue his sentence is substantively unreasonable. Rather, he contends the district court committed a significant procedural error by finding his Arkansas conviction for criminal attempt to commit robbery qualified as a crime of violence under § 4B1.2(a)(2) of the Guidelines. We review the district court’s application of the Sentencing Guidelines de novo. United States. v. Mashek, 406 F.3d 1012, 1016 (8th Cir.2005). Under § 4B1.1 of the Guidelines, persons who are convicted of a crime of violence who have at least two prior felony convictions for either crimes of violence or controlled substance offenses, are to be sentenced as “career offenders.” Section § 4B1.2(a)(l) of the Guidelines defines a crime of violence as an offense having “as an element the use, attempted use, or threatened use of physical force against the person of another.” Further, under the career offender guideline, if a complet ed offense is a crime of violence, an attempt to commit the offense is also a crime of violence. See § 4B1.2, cmt. n. 1 (“ ‘Crime of violence’ ... include[s] the offenses of aiding and abetting, conspiring, and attempting to commit such offenses.”). The Arkansas robbery statute" }, { "docid": "1634638", "title": "", "text": "in § 3553(a) and, based on those factors, declined to impose a below-guidelines sentence: [T]he nature and circumstances of this offense and your history and characteristics which speak in this case very strongly make this reflect on a serious offense here and a lack of — complete lack of respect for the laws of this country, and that’s really a concern. I have to provide from this sentence an adequate deterrence to criminal conduct and really protect the public at the same time. Despite denying Ruiz’s requests for a departure and variance, the district court commended Ruiz for being “pretty forthright” at his plea and sentencing hearings. Accordingly, the court sentenced Ruiz at the lowest end of the guidelines range— 188 months imprisonment. II. Defendant-Appellant’s Claims and Standard of Review On appeal, Ruiz raises three challenges to his sentence. Specifically, Ruiz asserts that the district court erred by (1) sentencing Ruiz as a career offender; (2) failing to recognize its authority to depart or vary from the guidelines range based on the age of Ruiz’s predicate convictions; and (3) ignoring certain sentencing factors while giving unreasonable weight to the guidelines range. “Sentences in criminal cases are reviewed for procedural and substantive reasonableness.” United States v. Freeman, 640 F.3d 180, 185 (6th Cir.2011) (citing Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007)). We review substantive-reasonableness and preserved procedural-reasonableness claims for an abuse of discretion. See id. at 185-86. III. Analysis A. Career Offender Scoring Ruiz argues that the district court erred by scoring him as a career offender under U.S.S.G. § 4B1.1. A defendant is considered a career offender under the guidelines if, inter alia, he “has at least two prior felony convictions of either a crime of violence or a controlled substance offense.” U.S.S.G. § 4Bl.l(a). However, the guidelines impose time limitations on the felony convictions that may be considered in determining whether a defendant qualifies as a career offender. As relevant here, a prior felony conviction qualifies as a career offender predicate only if the sentence for that conviction (1) “was imposed" }, { "docid": "13432027", "title": "", "text": "of serious repeat offender to whom the career-offender provision in U.S.S.G. § 4B1.1 was intended to apply and (2) therefore, a sentence within the career-offender-guideline range would be greater than necessary to meet the goals set forth in § 3553(a). The district court acknowledged that the career-offender enhancement significantly increased Clay’s guidelines sentence and stated that it was “troubled” by that result. Nevertheless, the district court imposed a sentence at the bottom of the guidelines range, refusing to vary downwardly because there was no “Fifth Circuit guidance” related to variances when a defendant is subject to the career-offender provision in U.S.S.G. § 4B1.1. The district court stated, if it had “Fifth Circuit authority” to vary, Clay’s sentence likely “would have been different.” On appeal, Clay contends that the district court procedurally erred by failing to appreciate its discretion to vary from the advisory guidelines range. Clay further asserts that the district court erred by not allowing him to allocute before imposing sentence. II. DISCUSSION When reviewing a sentence, 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, [or] failing to consider the § 3553(a) factors.” United States v. Robinson, 741 F.3d 588, 598 (5th Cir.2014) (quotation marks omitted); see also Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). If procedural error occurs, harmless error review applies. Robinson, 741 F.3d at 598. In conducting this review, we review the district court’s interpretation or application of the sentencing guidelines de novo and its factual findings for clear error. Id. at 598-99. A. Procedural Error Following the Supreme Court’s decision in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), sentencing “courts must conduct a two-part process — first calculating the sentence using the now-advisory Sentencing Guidelines, then applying an individualized assessment using the factors set out in 18 U.S.C. § 3553(a).” Robinson, 741 F.3d at 599 (citing Gall, 552 U.S. at 49-50, 128 S.Ct. 586). There is no question that the" }, { "docid": "8839949", "title": "", "text": "125 S.Ct. 738, 160 L.Ed.2d 621 (2005), is a question of law we review de novo. United States v. Smith, 562 F.3d 866, 872 (7th Cir.2009). The Supreme Court in Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007), described the procedure that a sentencing court is required to follow. First, the sentencing court must correctly calculate the applicable Guidelines range. Gall, 552 U.S. at 39, 128 S.Ct. 586. Then, after giving both parties an opportunity to argue for the sentence they deem appropriate, the sentencing judge should consider all the § 3553(a) factors. Id. at 49, 128 S.Ct. 586. After deciding on the appropriate sentence, the sentencing court must adequately explain the chosen sentence. Id. at 50, 128 S.Ct. 586. “The district court need not address each § 3553(a) factor in checklist fashion, explicitly articulating its conclusion for each factor; rather, the court must simply give an adequate statement of reasons, consistent with § 3553(a), for believing the sentence it selects is appropriate.” United States v. Panaigua-Verdugo, 537 F.3d 722, 728 (7th Cir.2008). Once we are satisfied that the district court committed no procedural error, we review the substantive reasonableness of the sentence under the abuse of discretion standard. United States v. Coopman, 602 F.3d 814, 819 (7th Cir.2010). A within-Guidelines sentence is entitled to a presumption of reasonableness. Rita v. United States, 551 U.S. 338, 347, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007). Baker argues that the district court did not expressly discuss the seriousness of his present offense, and to the degree that the judge did so, the judge improperly considered the seriousness in light of Baker’s prior convictions. Ultimately, this argument amounts to Baker’s dissatisfaction with his increased sentence because of his career offender enhancement, which was properly applied and not challenged during the sentencing hearing or on appeal. Section 3553(a) and the career offender guidelines encourage judges to consider “the nature and circumstances of the offense and the history and characteristics of the defendant.” 18 U.S.C. § 3553(a)(1) (emphasis added). The district court’s fairly lengthy discussion of Baker’s previous convictions—all" }, { "docid": "20732377", "title": "", "text": "evidence and law, and “jurors are presumed to follow the instructions given to them by the court.” United States v. Owens, 683 F.3d 93, 104 (5th Cir.2012). Though the jurors indicated some anxiety and intrinsic misconduct to the judge, with the possible exception of Juror D.D., none were so extreme that the district court’s judgment should be considered an abuse of discretion. Accordingly, we hold the district court did not abuse its discretion in denying the defendants’ motions for a mistrial. IV Nieto appeals his sentence on various grounds. We review sentencing for significant procedural errors first, including whether the district court “select[ed] a sentence based on clearly erroneous facts.” Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). “When there are no procedural errors, this court will then ‘consider the substantive reasonableness of the sentence imposed under an abuse-of-discretion standard’ and will ‘take into account the totality of the circumstances.’ ” United States v. Rodriguez, 660 F.3d 231, 233 (5th Cir.2011) (quoting Gall, 552 U.S. at 51, 128 S.Ct. 586). Reasonableness is reviewed in light of the 18 U.S.C. § 3553(a) factors. United States v. Booker, 543 U.S. 220, 261, 125 S.Ct. 738,160 L.Ed.2d 621 (2005). We review a district court’s interpretation of the Sentencing Guidelines de novo and its factual findings for clear error. United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir.2008). Nieto asserts the district court should not have sentenced him as a career offender because one of his prior convictions, the one for Injury to a Child in violation of Texas Penal Code § 22.04(a), does not constitute a “crime of violence” under the last clause of Sentencing Guideline § 4B1.2(a)(2), known as the residual clause. U.S. Sentencing Guidelines Manual § 4B1.2(a)(2) (2011). When determining whether a prior conviction is for a “crime of violence” for purposes of the career offender enhancement under the residual clause, “we follow essentially the ‘modified categorical approach,’ adapted from Shepard v. United States ... under which this court analyzes the nature of the crime described by the statute rather than the underlying" }, { "docid": "7320591", "title": "", "text": "is so even if the defendant has not raised a defense based on lack of knowledge or lack of intent.”). Moreover, the potential prejudicial impact of Officer Ruroden’s testimony was assuaged by the district court’s thorough instruction to the jury on the limited purpose of the testimony. See Frazier, 280 F.3d at 848. Accordingly, we conclude that the district court did not abuse its discretion in admitting the officer’s testimony. B. Sentencing Robinson challenges the district court’s determination that his prior conviction for violating Iowa’s drug tax stamp law qualifies as a prior “felony drug offense” subjecting him to the 20-year minimum sentence mandated by 21 U.S.C. § 841(b)(1)(A), and that the drug tax stamp conviction qualifies as a “controlled substance offense” under the career offender provision of the sentencing guidelines. In addition, Robinson challenges the substantive reasonableness of his sentence. We review a district court’s sentencing decisions for reasonableness, using “the familiar abuse-of-discretion standard.” Gall v. United States, 552 U.S. 38, 46, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). Before reviewing the substantive reasonableness of a sentence, we “must first ensure that the district court committed no significant procedural error, such as failing to calculate (or improperly calculating) the Guide lines range.” Id. at 51, 128 S.Ct. 586. “In determining whether a procedural error has been committed, we review ‘the district court’s factual findings for clear error, and its interpretation and application of the guidelines, de novo.’ ” United States v. Williams, 627 F.3d 324, 327 (8th Cir.2010) (quoting United States v. Byas, 581 F.3d 723, 725 (8th Cir.2009)). Robinson first argues that the district court erred by finding his conviction for violating Iowa’s drug tax stamp law to be a prior “felony drug offense” for purposes of applying § 841(b)(1)(A). The district court, however, sentenced Robinson to a term of 360 months’ imprisonment. Because the court’s sentencing decision was not constrained by the 240-month statutory minimum, Robinson “lacks standing to challenge the applicability of the statutory minimum.” See United States v. Greer, 607 F.3d 559, 565 (8th Cir.), cert. denied, 562 U.S. -, 131 S.Ct. 434, 178 L.Ed.2d" }, { "docid": "13990948", "title": "", "text": "the commentary to the guidelines. The district court rejected Yates’s arguments and found him to be a career offender with a base offense level of 34. Because of Yates’s depression, poor medi,cal condition, and the lack of any-disciplinary history while incarcerated, however, the court decided to vary downward from the 'guidelines range, which was 262 to 327 months of imprisonment. The court instead sentenced Yates to a term of 120 months’ imprisonment for his conviction under 18 U.S.C. § 922(g)(1) and a term of ,240 months’ imprisonment for his conviction under 21 U.S.C. § 841(a)(1), to run concurrently. Yates timely appealed, arguing that (1) the court erred in sentencing him as a career offender under the guidelines because-his Ohio robbery conviction should not be considered a qualifying offense, and (2) the sentence imposed by the court was substantively unreasonable. II. ANALYSIS A. Standard of revipw “We review de novo a district court’s conclusion that a crime qualifies as a predicate offense for the career-offender designation” under the guidelines. United States v. Skipper, 552 F.3d 489, 491 (6th Cir. 2009). The reasonableness of a sentence, on the other hand, is reviewed using the abuse-of-discretion standard. United States v. Carter, 510 F.3d 593, 600 (6th Cir. 2007). “Review for reasonableness has both procedural and substantive components.” Id. B. Yates was improperly designated a career offender under the guidelines. Yates first argues that the district court erred in applying the career-offender enhancement to determine that his base offense level was 34. Under the guidelines, [a] defendant is a career offender if (1) the defendant was at least eighteen years old at the time the defendant committed the instant offensé of conviction; (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense; and (3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense. U.S.S.G. § 4Bl.l(a). At the time that Yates was sentenced, a “crime of violence” was defined by the guidelines as any offense under federal or state law, punishable by" }, { "docid": "1634639", "title": "", "text": "predicate convictions; and (3) ignoring certain sentencing factors while giving unreasonable weight to the guidelines range. “Sentences in criminal cases are reviewed for procedural and substantive reasonableness.” United States v. Freeman, 640 F.3d 180, 185 (6th Cir.2011) (citing Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007)). We review substantive-reasonableness and preserved procedural-reasonableness claims for an abuse of discretion. See id. at 185-86. III. Analysis A. Career Offender Scoring Ruiz argues that the district court erred by scoring him as a career offender under U.S.S.G. § 4B1.1. A defendant is considered a career offender under the guidelines if, inter alia, he “has at least two prior felony convictions of either a crime of violence or a controlled substance offense.” U.S.S.G. § 4Bl.l(a). However, the guidelines impose time limitations on the felony convictions that may be considered in determining whether a defendant qualifies as a career offender. As relevant here, a prior felony conviction qualifies as a career offender predicate only if the sentence for that conviction (1) “was imposed within fifteen years of the defendant’s commencement of the instant offense,” or (2) “resulted in the defendant being incarcerated during any part of such fifteen-year period.” U.S.S.G. § 4A1.2(e)(1); see also United States v. Robertson, 260 F.3d 500, 509 (6th Cir.2001) (noting that the provisions of U.S.S.G. § 4A1.2 apply in determining whether a prior felony conviction qualifies as a career offender predicate) (citing U.S.S.G. §§ 4B1.1, cmt. n. 1; 4B1.2, cmt. n. 3). Ruiz contends that the 1994 Felony did not qualify as a career offender predicate because his sentence was not imposed, and he did not serve any part of his prison sentence for that crime, within 15 years of the instant offense. Ruiz thus argues that the district court erred by counting the 1994 Felony as a career offender predicate. Ruiz acknowledges that he did not raise this argument in the district court, and he asks this Court to review for plain error. However, Ruiz’s argument that he should not have been scored as a career offender based upon the age of" }, { "docid": "10644185", "title": "", "text": "been free to disagree with, and depart from, the guidelines range. II DISCUSSION A. We review de novo whether a prior conviction qualifies as a predicate conviction for purposes of applying the career offender enhancement. See United States v. Woods, 576 F.3d 400, 408 (7th Cir.2009). We review sentences for reasonableness and presume that a sentence within a correctly calculated guidelines range is reasonable. Gall v. United States, 552 U.S. 38, 46-47, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007); United States v. Panaigua-Verdugo, 537 F.3d 722, 727 (7th Cir.2008). The career offender enhancement applies to any defendant who is at least eighteen years old at the time he committed the offense of conviction, whose offense of conviction is a “crime of violence or a controlled substance offense,” and who has at least two prior felony convictions of either a crime of violence or a controlled substance offense — i.e., two predicate offenses. See U.S.S.G. § 4Bl.l(a). Application of the career offender provision subjects a defendant to an enhanced base offense level and an automatic criminal history category of VI. Id. § 4B1.1(b). 1. We begin with Mr. Womack’s 1994 controlled substance conviction and consider whether it is too old to qualify as a predicate conviction. The career offender provision generally excludes as predicate convictions those that are older than ten years; however, if a prior conviction is within fifteen years of the commencement of the offense of conviction, and if the offender received a sentence of imprisonment in excess of thirteen months for the prior conviction, the prior conviction is included. See U.S.S.G. §§ 4A1.2(e), 4B1.2 n. 3. Mr. Womack’s 1994 controlled substance conviction occurred more than ten years, but fewer than fifteen years, prior to his commencement of distributing cocaine base. Thus, if Mr. Womack received a sentence of imprisonment in excess of thirteen months for his 1994 controlled substance conviction, it qualifies as a predicate conviction. Mr. Womack received a sentence of five years’ imprisonment for his 1994 conviction. However, he contends that his actual period of incarceration was much less than five years. He explains that he" }, { "docid": "7320592", "title": "", "text": "of a sentence, we “must first ensure that the district court committed no significant procedural error, such as failing to calculate (or improperly calculating) the Guide lines range.” Id. at 51, 128 S.Ct. 586. “In determining whether a procedural error has been committed, we review ‘the district court’s factual findings for clear error, and its interpretation and application of the guidelines, de novo.’ ” United States v. Williams, 627 F.3d 324, 327 (8th Cir.2010) (quoting United States v. Byas, 581 F.3d 723, 725 (8th Cir.2009)). Robinson first argues that the district court erred by finding his conviction for violating Iowa’s drug tax stamp law to be a prior “felony drug offense” for purposes of applying § 841(b)(1)(A). The district court, however, sentenced Robinson to a term of 360 months’ imprisonment. Because the court’s sentencing decision was not constrained by the 240-month statutory minimum, Robinson “lacks standing to challenge the applicability of the statutory minimum.” See United States v. Greer, 607 F.3d 559, 565 (8th Cir.), cert. denied, 562 U.S. -, 131 S.Ct. 434, 178 L.Ed.2d 337 (2010). Robinson next disputes the district court’s determination that he qualifies as a “career offender” under U.S.S.G. § 4B1.1. A defendant is considered a career offender if he has two prior convictions for either a “controlled substance offense” or a “crime of violence.” § 4Bl.l(a). The district court deemed Robinson a career offender, based on a 1999 felony conviction for a crime of violence — conspiracy to commit terrorism— and a 2007 felony conviction for violating Iowa’s drug tax stamp law, which it determined to be a controlled substance offense. On appeal, Robinson challenges only the court’s determination that the drug tax stamp conviction qualifies as a controlled substance offense. The sentencing guidelines define “controlled substance offense” as “an offense under federal or state law, punishable by imprisonment for a term exceeding one year, that prohibits the manufacture, import, export, distribution, or dispensing of a controlled substance ... or the possession of a controlled substance ... with intent to manufacture, import, export, distribute, or dispense.” § 4B1.2(b). A felony conviction for simple possession of" }, { "docid": "23615392", "title": "", "text": "crimes of conviction. Given the record, we must conclude that the district court did not fail to consider the § 3553(a) factors or “fail[] to adequately explain the chosen sentence.” Gall, 552 U.S. at 51, 128 S.Ct. 586. Therefore, we conclude that Mr. Ta-vares’s sentence was proeedurally correct and substantively reasonable. 2. Mr. Jones’s Sentencing Mr. Jones challenges the procedural and substantive reasonableness of his sentence. He specifically challenges the use of his two prior convictions for resisting arrest as predicates for a career offender classification under the Guidelines and the district court’s consideration of the § 3553(a) mandatory sentencing factors. He also contends that his sentence is substantively unreasonable because the district court gave insufficient weight to the report of Mr. Jones’s forensic psychologist. We address these issues in turn. a. Career Offender Classification The district court classified Mr. Jones as a career offender under United States Sentencing Guidelines section 4B1.1 based on his prior Massachusetts convictions for resisting arrest. Thus, Mr. Jones’s offense level was set at thirty-four, resulting in an increased guidelines range. We review de novo a determination that a prior conviction qualifies as a predicate offense for the purposes of the career offender Guideline. See United States v. Almenas, 553 F.3d 27, 31 (1st Cir.2009). United States Sentencing Guidelines section 4131.1(a) classifies a defendant as a career offender if (1) he was at least eighteen years old at the time he committed the offense of conviction, (2) the instant offense is a crime of violence and (3) the defendant has at least two prior felony convictions of a crime of violence. Mr. Jones urges that his convictions for resisting arrest cannot be the basis for his career offender classification because resisting arrest is not a crime of violence. We consistently have rejected this argument. In Almenas, we held that resisting arrest under Massachusetts law is a crime of violence within section 4Bl.l(a). 553 F.3d at 32-35. We reaffirmed this conclusion recently in United States v. Grupee, 682 F.3d 143, 149 (1st Cir.2012), and United States v. Davis, 676 F.3d 3, 7 (1st Cir.2012). Mr. Jones" }, { "docid": "15164786", "title": "", "text": "timely appealed this sentence. II. ANALYSIS Wynn’s sole contention on appeal is that, in light of Begay v. United States, — U.S. -, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008), the district court erred in imposing the U.S.S.G. § 4B.l(a) career-offender enhancement to his sentence because his conviction under Ohio Rev. Code § 2907.03 is not a “crime of violence” under the Begay test. Wynn asserts that, without this enhancement, his total offense level would have been 27, with a criminal history category of VI, for a guidelines range of 130 to 162 months. As explained below, we conclude that we must vacate Wynn’s sentence in light of Begay. A. Standard of Review After the Supreme Court’s decision in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), we review sentences “for reasonableness— including for procedural error in the calculation of the guideline range such as defendant asserts in this case.” United States v. Bartee, 529 F.3d 357, 358 (6th Cir.2008) (citing Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 596, 169 L.Ed.2d 445 (2007)). Thus, when reviewing a district court’s sentencing determination, 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.” Gall, 128 S.Ct. at 597. We review de novo the district court’s determination that a prior conviction is a “crime of violence” under U.S.S.G. § 4B1.1. United States v. Hargrove, 416 F.3d 486, 494 (6th Cir.2005). B. Career-Offender Status “A defendant is a career offender if (1) the defendant was at least eighteen years old at the time the defendant committed the instant offense of conviction; (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense; and (3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense.”" }, { "docid": "15164787", "title": "", "text": "S.Ct. 586, 596, 169 L.Ed.2d 445 (2007)). Thus, when reviewing a district court’s sentencing determination, 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.” Gall, 128 S.Ct. at 597. We review de novo the district court’s determination that a prior conviction is a “crime of violence” under U.S.S.G. § 4B1.1. United States v. Hargrove, 416 F.3d 486, 494 (6th Cir.2005). B. Career-Offender Status “A defendant is a career offender if (1) the defendant was at least eighteen years old at the time the defendant committed the instant offense of conviction; (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense; and (3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense.” U.S.S.G. § 4Bl.l(a). Wynn does not contest the fact that requirements one and two are met; rather, Wynn asserts that he does not have the two predicate “crime of violence” convictions necessary to be a career offender because, in light of the Supreme Court’s decision in Begay, his conviction under Ohio Rev.Code § 2907.03 is not a “crime of violence.” A prior conviction constitutes a “crime of violence” if the crime was “punishable by imprisonment for a term exceeding 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) (emphasis added). To determine whether a prior conviction constitutes a “crime of violence,” we must apply the categorical approach expressed in Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), and expanded to convictions based" }, { "docid": "20469349", "title": "", "text": "by a limiting instruction from the district court clarifying the issues for which the jury could properly consider [the] evidence.”). Accordingly, the court did not abuse its discretion in admitting evidence of the Federal Convictions. C. Rooks’s final contention is that the district court erred in sentencing him as a career offender under section 4B1.1 of the 2007 edition of the Guidelines Manual. Because Rooks did not present this contention to the sentencing court, we review it for plain error only. Under the plain error standard, Rooks bears the burden of showing that (1) an error occurred, (2) the error was plain, and (3) it affected his substantial rights. See United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). If he makes such a showing, the correction of such error lies within our discretion, which we “should not exercise ... unless the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.” Id. (internal quotation marks and alterations omitted). Pursuant to Guidelines section 4Bl.l(a), a defendant qualifies as a career offender if (1) he was at least eighteen years old when he committed “the instant offense of conviction”; (2) “the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense”; and (3) he has “at least two prior felony convictions of either a crime of violence or a controlled substance offense.” Rooks’s sole basis for contending that he is not a career offender is predicated on the third prong of section 4Bl.l(a): that he did not have two prior felony convictions of either a crime of violence or a controlled substance offense. Rooks contends that his State Conviction and his Federal Conspiracy Conviction should not count separately for purposes of section 4B1.1, as they were “part of the same scheme or plan.” Br. of Appellant 25. For purposes of counting a defendant’s prior felony convictions under section 4B1.1, the Guidelines direct a sentencing court to consider the provisions of section 4A1.2. See USSG § 4B1.2 cmt. n. 3. Prior to 2007, section 4A1.2" }, { "docid": "5687797", "title": "", "text": "district court committed procedural error in calculating his criminal history category by classifying him as a career offender. He also argues that the district court erred because there is no indication that it considered his military service and resulting mental health issues when arriving at his sentence. Finally, Grimes contends that the district court abused its discretion by imposing a substantively unreasonable 288-month sentence. 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, ... 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.” United, States v. Feemster, 572 F.3d 455, 461 (8th Cir.2009) (quoting Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007)). Because Grimes did not make a timely objection on these specific claims at sentencing, we review only for plain error. United States v. Miller, 557 F.3d 910, 916 (8th Cir.2009). “To establish plain error, [a defendant] must prove (1) there was error, (2) the error was plain, and (3) the error affected his substantial rights.” Id. (citing United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)). “An error affects a substantial right if the error was prejudicial,” but an error is prejudicial in the sentencing context “only if there is a reasonable probability that the defendant would have received a lighter sentence but for the error.” Id. Under U.S.S.G. § 4B1.1(a), a defendant is considered a career offender if “(1) the defendant was at least eighteen years of age at the time the felony was committed, (2) the felony is either a crime of violence or controlled substance offense, and (3) the defendant has two prior felony convictions for a crime of violence or controlled substance offense.” United States v. El-Alamin, 574 F.3d 915, 927-28 (8th Cir.2009) (quoting United States v. Parks, 561 F.3d 795, 797 (8th Cir.2009) (per curiam)). The district court determined that Grimes was a" }, { "docid": "20128505", "title": "", "text": "District Court could depart downward if it found that category VI overrepresented Grier’s prior record. Grier filed various objections to the PSR. Specifically, Grier claimed that his career offender designation under USSG § 4B1.1 overstated his criminal history; he requested a downward departure pursuant to USSG § 5H1.6 based on the extraordinary family circumstance that he was a single parent caring for a daughter afflicted with spina bifida; and he sought a downward variance based on the factors set forth in 18 U.S.C. § 3553(a). At sentencing, the District Court agreed that application of the career offender enhancement overstated Grier’s criminal history. Relying on information provided by the probation officer, the District Court stated that while it could depart downward by one criminal history category, it could not adjust Grier’s offense level pursuant to § 4A1.3. After departing downward from criminal history category VI to criminal history category V, the District Court fixed Grier’s final Guidelines range at 37 to 46 months of imprisonment. After reviewing Grier’s request for a variance, the District Court sentenced him to 37 months incarceration. Grier filed this timely appeal, and we have appellate jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742. II. Grier’s principal argument on appeal is that the District Court erroneously held that it had discretion to reduce only his criminal history category but not his offense level. We review the District Court’s interpretation of the Sentencing Guidelines de novo, United States v. Pojilenko, 416 F.3d 243, 246 (3d Cir.2005), and scrutinize its findings of fact for clear error, United States v. Wise, 515 F.3d 207, 217 (3d Cir.2008). In reviewing Grier’s 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.” Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 597, 169 L.Ed.2d 445 (2007). We cannot, however, review a district court’s refusal to grant a downward departure pursuant to USSG § 4A1.3(b) “unless the record reflects that the district court was not aware of or did not understand its discretion" }, { "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": "23615393", "title": "", "text": "range. We review de novo a determination that a prior conviction qualifies as a predicate offense for the purposes of the career offender Guideline. See United States v. Almenas, 553 F.3d 27, 31 (1st Cir.2009). United States Sentencing Guidelines section 4131.1(a) classifies a defendant as a career offender if (1) he was at least eighteen years old at the time he committed the offense of conviction, (2) the instant offense is a crime of violence and (3) the defendant has at least two prior felony convictions of a crime of violence. Mr. Jones urges that his convictions for resisting arrest cannot be the basis for his career offender classification because resisting arrest is not a crime of violence. We consistently have rejected this argument. In Almenas, we held that resisting arrest under Massachusetts law is a crime of violence within section 4Bl.l(a). 553 F.3d at 32-35. We reaffirmed this conclusion recently in United States v. Grupee, 682 F.3d 143, 149 (1st Cir.2012), and United States v. Davis, 676 F.3d 3, 7 (1st Cir.2012). Mr. Jones attacks Almenas (and its progeny) as inconsistent with the Supreme Court’s decision in Chambers v. United States, 555 U.S. 122, 129 S.Ct. 687, 172 L.Ed.2d 484 (2009), decided after our decision in Almenas. However, we rejected this claim in United States v. Weekes, 611 F.3d 68, 72-73 (1st Cir.2010). Therefore, the district court did not err in classifying Mr. Jones as a career offender under the Guidelines. b. Remaining Challenges to Mr. Jones’s Sentence “[A reviewing court] must first ensure that the district court committed no significant procedural error.... Assuming that the district court’s sentencing decision is procedurally sound, the appellate court should then consider the substantive reasonableness of the sentence imposed under an abuse-of-discretion standard.” Gall, 552 U.S. at 51, 128 S.Ct. 586. Accordingly, “[o]ur first task is to determine whether the district court made any procedural errors-If the district court has committed no such procedural error, .we then review the substantive reasonableness of the sentence imposed and review the sentence for abuse of discretion.” Marsh, 561 F.3d at 85-86 (internal quotation marks omitted)." }, { "docid": "13996690", "title": "", "text": "continuance that tolled the speedy-trial clock for the days covered by the continuance. Accordingly, there was no Speedy Trial Act violation. B. Career-Offender Designation Madkins next argues the district court erred in concluding that his two pri- or Kansas convictions for possession with intent to sell cocaine and marijuana are controlled substance offenses within\" the meaning- of the Sentencing Guidelines. Based on this conclusion, the court designated Madkins as a career offender, which significantly increased his total offense level and corresponding guidelines sentencing range. Madkins thus asks us to vacate his sentence and remand for resentencing without the career-offender enhancement. We review challenges to the imposition of guidelines enhancements for clear error as to findings of fact and de novo as to questions of law. United States v. Irvin, 682 F.3d 1254, 1276-77 (10th Cir. 2012). Whether a prior conviction qualifies as a predicate offense for career-offender purposes is a question of law that we review de novo. See United States v. Karam, 496 F.3d 1157, 1166 (10th Cir. 2007). Section 4B1.1 of the Guidelines enhances the offense levels for defendants classified as career offenders. The enhancement applies to a defendant convicted of a “controlled substance offense” who “has at least two prior felony convictions of either a crime of violence or a controlled substance offense.” USSG § 4Bl.l(a). The Guidelines define a controlled substance offense for purposes of the career-offender designation as an offense under federal or state law, punishable by imprisonment for a term exceeding one year, that prohibits the manufacture, import, export, distribution,' or dispensing of a controlled substance (ór a counterfeit substance) or the possession of a controlled substance (or a counterfeit substance) with intent to manufacture, import,’export, distribute, or dispense. USSG § 4B1.2(b). Federal law provides that for purposes of this definition, “distribute” means “to deliver ... a controlled substance or listed chemical.” 21 U.S.C. § 802(11); see also United States v. Cherry, 433 F.3d 698, 702 (10th Cir. 2005). The commentary to § 4B1.2 clarifies that a controlled substance offense includes “the offenses of aiding and abetting, conspiring, and attempting to commit such offenses.”" } ]

[ { "docid": "13251362", "title": "", "text": "implicates the Confrontation Clause, see Government of the Virgin Islands v. Joseph, 964 F.2d 1380, 1385 (3d Cir.1992). A. Present Sense Impression and Excited Utterance Federal Rule of Evidence 803(1) provides that a present sense impression is admissible so long as it is “a statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter.” Fed.R.Evid. 803(1) (emphasis added). There are three principal requirements which must be met before hearsay evidence may be admitted as a present sense impression: (1) the declarant must have personally perceived the event described; (2) the declaration must be an explanation or description of the event rather than a narration; and (3) the declaration and the event described must be contemporaneous. See 5 J. McLaughlin, Weinstein’s Federal Evidence § 803.03 (2d ed.1997); 2 J. Strong, McCormick on Evidence § 271 (4th ed.1992). To qualify as an excited utterance, the Rule requires that it be “[a] statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.” Fed.R.Evid. 803(2). The requirements for a hearsay statement to constitute an excited utterance are: (1) a startling occasion, (2) a statement relating to the circumstances of the startling occasion, (3) a declarant who appears to have had opportunity to observe personally the events, and (4) a statement made before there has been time to reflect and fabricate. See 6 J. Wigmore, Evidence §§ 1750-51 (J. Chadbourne rev. 1976). Both Rules 803(1) and (2) share certain requirements. One of the principal requirements is that the declarant personally perceived the event or condition about which the statement is made. See Miller v. Keating, 754 F.2d 507, 511 (3d Cir.1985) (personal perception a key element to the excited utterance exception); Bemis v. Edwards, 45 F.3d 1369, 1372-73 (9th Cir.1995) (stating same for both the present sense impression and excited utterance exceptions). In addition, both hearsay exceptions have temporal limitations which limit admissibility of certain statements. See Bemis, 45 F.3d at 1372. Mitchell’s principal challenge to the admission of the" } ]

[ { "docid": "23588800", "title": "", "text": "Rules of Evidence, a present sense impression is a statement “describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter.” Rule 803(1), Fed.R.Evid. Such' statements are considered to be trustworthy because the contemporaneity of the event and its description limits the possibility for intentional deception or failure of memory. See United States v. Brewer, 36 F.3d 266, 272 (2d Cir.1994). The hearsay exception for excited utterances is premised on a similar, though distinct, assumption that the reliability of a statement increases as opportunity for reflection by the declarant decreases. An “excited utterance” is “[a] statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.” Rule 803(2), Fed. R.Evid. As we have explained, “[t]he rationale for this hearsay exception is that the excitement of the event limits the declar-ant’s capacity to fabricate a statement and thereby offers some guarantee of its reliability.” Tocco, 135 F.3d at 127. Unlike present sense impressions, “[a]n excited utterance need not be contemporaneous with the startling event to be admissible.” Id. Rather “[t]he length of time between the event and the utterance is only one factor to be taken intov account in determining whether the declarant was, within the meaning of rule 803(2), ‘under the stress of excitement caused by the event or condition.’ ” United States v. Scarpa, 913 F.2d 993, 1017 (2d Cir.1990). For several reasons, we cannot conclude that the district court abused its discretion in admitting Officer Moreland’s hearsay testimony under either of these exceptions. First, the events reported to Officer More-land (i.e. a man exposing himself, masturbating, and making catcalls to a teen-age girl) were certainly startling enough to support application of the excited utterance exception. Second, the statements made by the declarants to Officer More-land were nearly contemporaneous with the event described. Third, Karin reported being “scared” by what she had witnessed, and Moreland’s wife appeared, from his testimony, to be agitated, calling to him to “come to the front, quick, quick, quick.” These circumstances clearly" }, { "docid": "23173415", "title": "", "text": "of the Jessica Roach abduction” should have been admitted as “excited utterances.” Rule 803(2) allows hearsay testimony of “[a] state ment relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.” Fed.R.Evid. 803(2). Under 803(2), a hearsay statement may be introduced into evidence as an “excited utterance” only if each of the following three conditions is met: (1) a startling event occurred; (2) the declarant makes the statement while under the stress of excitement cause by the startling event; and (3) the declarant’s statement relates to the startling event. United States v. Sowa, 34 F.3d 447, 453 (7th Cir.1994); Moore, 791 F.2d. at 570. We turn first to O’Toole’s statement to Wheeler’s mother that he had to leave town, which O’Toole allegedly uttered approximately two days after the disappearance of Jessica Roach. We conclude that the district court did not abuse its discretion in excluding this testimony. Even if we assume that the requisite “startling event” was the Roach abduction itself, the record contains ample support for the district court to conclude that neither the second nor third conditions were satisfied. In order to conclude that a declarant made the statement while “under the stress of excitement caused by the event,” the court must be able to determine that the “declar-ant’s state at the time the declaration was made excluded the possibility of conscious reflection.” Moore, 791 F.2d at 571-72. While the length of time between the startling event and when the statement is made-is not dispositive, it certainly is relevant to a district court’s inquiry into whether the de-clarant uttered the statement while still under the stress of excitement caused by the startling event. Id. at 572. According to Wheeler, O’Toole made the statement at least two days after Jessica Roach was abducted. Thus, even though Wheeler stated that O’Toole appeared pale and upset at the time, we find that a lapse of time of several days between the event and the alleged statement militates against a finding of spontaneity so as to exclude the possibility" }, { "docid": "15090366", "title": "", "text": "does confer a generalized right that is significantly diminished when the hearsay declarant is not only unavailable, but is also unidentified, and the party against whom the hearsay declarant’s statement is introduced is thus deprived not only of the right to cross-examine, but of any meaningful prospect of finding evidence of inconsistency or bias. We do not conclude, however, that statements by unidentified declarants are ipso facto inadmissible under Fed.R.Evid. 803(2). Such statements are admissible if they otherwise meet the criteria of 803(2). But unlike unavailability, which is immaterial to admission under Rule 803, the unidentifiability of the declarant is germane to the admissibility determination. A party seeking to introduce such a statement carries a burden heavier than where the declarant is identified to demonstrate the statement’s circumstantial trustworthiness. At minimum, when the declarant of an excited utterance is unidentified, it becomes more difficult to satisfy the established case law requirements for admission of a statement under Fed.R.Evid. 803(2). Wigmore defines these requirements as: (1) a startling occasion, (2) a statement relating to the circumstances of the startling occasion, (3) a declarant who appears to have had opportunity to observe personally the events, and (4) a statement made before there has been time to reflect and fabricate. 6 J. Wigmore, Evidence §§ 1750-51 (J. Chadbourn rev. 1976). See Fed.R.Evid. 803 advisory committee note; S. Saltzburg & K. Redden, Federal Rules of Evidence Manual 574-75 (3d ed. 1982); J. Weinstein, Evidence 11803(2)[01] (1984). There is no doubt that the present case presents a startling occasion and little doubt that the declarant’s statement relates to the circumstances of the occurrence. Partly because the declarant is unidentified, however, problems arise with the last two requirements: personal knowledge and spontaneity. The first of these expresses the familiar principle that a witness may not testify about a subject without personal knowledge. Fed.R.Evid. 602. This rule applies with equal force to hearsay statements. Kornicki v. Calmar Steamship Corporation, 460 F.2d 1134, 1138 (3d Cir. 1972). To be admissible, the declarant of an excited utterance must personally observe the startling event. McLaughlin v. Vinzant, 522 F.2d 448," }, { "docid": "23667152", "title": "", "text": "“waved a gun around,” made within a few minutes of the incident, qualified as excited utterance); United States v. Ladell, 127 F.3d 622, 623, 625 (7th Cir.1997) (statements of “hysterical woman” to police “within minutes” of 911 call claiming appellant had hit her with a gun and threatened to kill her held admissible as excited utterances); United States v. Bailey, 834 F.2d 218, 228 (1st Cir.1987) (out-of-court state ment by “upset” declarant concerning an attempted bribe three minutes earlier properly admitted as an excited utterance). In the case at bar, the two declarants’ statements to Officer Hughes that “they just saw a guy with a gun” and that “there’s a guy over there with a gun” indicate that the startling event was very recent, if not ongoing, at the time of the statements. Therefore, even ignoring the fact that Officer Hughes found Brown carrying a gun shortly after the statements were made, it was entirely reasonable for the District Court to infer from the testimony that only a short time had passed between the startling event and the statements, that the declarants were still visibly in an excited state, that their statements thus were likely made in a state of excitement originating with the event, and consequently that their statements were admissible as excited utterances pursuant to Rule 803(2). In short, we can find no deficiency in the District Court’s application of the Mitchell test. Brown also argues that in admitting the two men’s statements, the District Court ran afoul of our holding in Miller. We do not agree. Although we did state in Miller that a party seeking to introduce a statement by an unidentified declarant under Rule 803(2) “carries a burden heavier than where the declarant is identified to demonstrate the statement’s circumstantial trustworthiness,” Miller, 754 F.2d at 510, we also emphasized that “such statements are admissible if they otherwise meet the criteria of[Rule] 803(2).” Id. For the reasons set forth supra, Officer Hughes’s testimony satisfies all the criteria of that rule, as elaborated in Mitchell. Moreover, the out-of-court statement in Miller was made by an unidentified declar-ant" }, { "docid": "3286217", "title": "", "text": "Antoinette Caruso testified that her granddaughter Erika, then three years old, saw Sowa beat Dodds, cried for twenty minutes, and then identified Sowa as the assailant. The district court admitted this testimony under Rule 803(2) of the Federal Rules of Evidence as an excited utterance. The substance of Sowa’s argument against admissibility is that a statement made twenty minutes after a startling event is too long to satisfy the excited utterance exception to the hearsay rule. Rule 803(2) provides an exception to the hearsay rule for any “statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.” The basis of the excited utterance exception is that “such statements are given under circumstances that eliminate the possibility of fabrication, coaching, or confabula-tion_” Idaho v. Wright, 497 U.S. 805, 820, 110 S.Ct. 3139, 3149, 111 L.Ed.2d 638 (1990). For a hearsay statement to be admitted under this exception, three conditions must be met: 1) a startling event must have occurred; 2) the declarant must have made the statement while under the stress of excitement caused by the event; and 3) the statement must relate to the startling event. United States v. Hartmann, 958 F.2d 774, 784 (7th Cir.1992) (quoting United States v. Moore, 791 F.2d 566, 570 (7th Cir.1986)). There is no question in this case that the bloody beating with a baseball bat constitutes a startling event or that the child’s identification of the assailant relates to the event. We, therefore, focus on the second condition of admissibility. Antoinette Caruso testified as follows. She saw, through her basement window, two white men beat two black men with baseball bats, but could not identify the white men because she was not wearing her glasses. At this time, Erika was also looking out the window at the beating. Erika began to shake and started to cry. Antoinette pulled Erika away from the window while her husband called the police. With Erika in her arms, she then went across the street to determine whether the victim was alive. Antoinette returned" }, { "docid": "23667153", "title": "", "text": "event and the statements, that the declarants were still visibly in an excited state, that their statements thus were likely made in a state of excitement originating with the event, and consequently that their statements were admissible as excited utterances pursuant to Rule 803(2). In short, we can find no deficiency in the District Court’s application of the Mitchell test. Brown also argues that in admitting the two men’s statements, the District Court ran afoul of our holding in Miller. We do not agree. Although we did state in Miller that a party seeking to introduce a statement by an unidentified declarant under Rule 803(2) “carries a burden heavier than where the declarant is identified to demonstrate the statement’s circumstantial trustworthiness,” Miller, 754 F.2d at 510, we also emphasized that “such statements are admissible if they otherwise meet the criteria of[Rule] 803(2).” Id. For the reasons set forth supra, Officer Hughes’s testimony satisfies all the criteria of that rule, as elaborated in Mitchell. Moreover, the out-of-court statement in Miller was made by an unidentified declar-ant at the, scene of an automobile accident, assigning blame for the accident to the plaintiff. The statement itself did not proclaim the startling event and the record was devoid of evidence from which the court could have inferred that the defendant actually saw the accident. See Miller, 754 F.2d at 511. In the present case, however, the declarants did in fact claim to have personally seen the startling event: a man wielding a gun. Moreover, the de-clarants are simply stating what they observed. They are not giving an opinion, which is what occurs when the declarant points a finger of fault for causing the accident. For these reasons, we find this case is distinguishable from Miller. Furthermore, even if we did interpret the “heavier burden” for unidentified de-clarants, established in Miller, to require corroboration of the startling event beyond the excited utterance itself, the fact that Officer Hughes almost immediately came upon Brown, who was visibly carrying a gun and who was identified as the gun brandisher by the two declarants, provides such corroboration. See" }, { "docid": "17160089", "title": "", "text": "74 F.3d 753, 756 (7th Cir.1996). Rule 803(2) defines an excited utterance as “[a] statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.” Fed.R.Evid. 803(2). Hearsay statements are admissible under the excited utterance exception if (1) a startling event occurred; (2) the declarant made the statement while under the stress of excitement caused by the startling event; and (3) the declarant’s statement relates to the startling event. United States v. Sowa, 34 F.3d 447, 453 (7th Cir.1994) (citations omitted). The basis of the exception is that “such statements are given under circumstances that eliminate the possibility of fabrication, coaching, or confabulation.” Id. at 452-53, quoting Idaho v. Wright, 497 U.S. 805, 820, 110 S.Ct. 3139, 111 L.Ed.2d 638 (1990). The timing of the statement is important but not controlling. Gross v. Greer, 773 F.2d 116, 119-20 (7th Cir.1985). “All that the exception requires is ‘that the statement be made contemporaneously with the excitement resulting from the event, not necessarily with the event itself.’ ” Smith v. Fairman, 862 F.2d 630, 636 (7th Cir.1988), quoting United States v. Moore, 791 F.2d 566, 572 n. 4 (7th Cir.1986). Wesela argues that it was an abuse of discretion to allow in the statements pertaining to the events of the 24th and the morning of the 25th. He contends that at the time Mrs. Wesela made those statements, she was stressed and excited, but her stress and excitement did not stem from the events that occurred on the 24th and the morning of the 25th; instead, she was agitated because of the events of the evening of the 25th. The court disagreed and found that the events over the 24th and 25th were part of a continuing course of conduct which left Mrs. Wesela in a stressed and excited condition. The court therefore allowed in the statements regarding all of the events. The government is correct that some courts have found statements following a long lapse in time to fall within the excited utterance exception. However, these cases generally" }, { "docid": "23667146", "title": "", "text": "or condition. See United States v. Moore, 791 F.2d 566 (7th Cir.1986). In the Third Circuit, we have expanded the requirements of admissibility to include: (i) a startling occasion; (ii) a statement relating to the circumstances of the startling occasion; (iii) a declarant who appears to have had opportunity to observe personally the events; and (iv) a statement made before there has been time to reflect and fabricate. See United States v. Mitchell, 145 F.3d 572, 576 (3d Cir.1998); Miller v. Keating, 754 F.2d 507 (3d Cir.1985). In the memorandum opinion it issued following the Rule 104 hearing, the District Court carefully applied our four-part Rule 803(2) analysis as set forth in Mitchell and Miller and concluded that Officer Hughes’s testimony about the statements of the two declarants satisfied each of the four prongs. First, the court held that the two declarants’ observation of a man wielding a firearm qualified as a startling occasion. Significantly, Brown all but concedes this point in his brief: “On it’s [sic] face, a man waving a gun and threatening to shoot people would appear to qualify.” Second, the District Court found that the statements of the declarants to Officer Hughes regarding the man brandishing a gun (Hughes testified that the declarants said they “just saw a guy with a gun ... over 7th and New, 7th and Washington Street”) constituted statements relating to the circumstances of the startling occasion. Third, the District Court held that the declarants’ several statements that they had personally seen the man with the gun, coupled with their subsequent statements as they actually pointed out the gunman (“that’s him right there”) adequately established that the men had the opportunity to observe personally the startling event at issue. Fourth, the court concluded that because the declarants appeared to be “very excited,” “very nervous” and “hopping around,” and given that approximately one minute had passed between the startling occasion and the declarants’ statements to Officer Hughes (Hughes testified that the declarants could have walked from the place they had seen the gunman to Officer Hughes’s location in “maybe a minute”), such statements" }, { "docid": "23667145", "title": "", "text": "relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.” The applicability of the exception is unaffected by the availability or unavailability of the declarant as a witness. Fed. R.Evid. 803. The rationale for the excited utterance exception lies in the notion that excitement suspends the declarant’s powers of reflection and fabrication, consequently minimizing the possibility that the utterance will be influenced by self interest and therefore rendered unreliable. See United States v. Joy, 192 F.3d 761, 766 (7th Cir.1999), cert. denied, 530 U.S. 1250, 120 S.Ct. 2704, 147 L.Ed.2d 974 (2000); 2 McCormick on Evidence S 272, at 204-05 (5th ed.1999). Although courts’ articulations of the elements necessary to invoke the exception differ, most agree upon three requirements: (i) the occurrence of a startling event or condition; (ii) the statement in question must have been made while the declarant was under the stress of excitement caused by the event or condition; and (iii) the statement must relate to the startling event or condition. See United States v. Moore, 791 F.2d 566 (7th Cir.1986). In the Third Circuit, we have expanded the requirements of admissibility to include: (i) a startling occasion; (ii) a statement relating to the circumstances of the startling occasion; (iii) a declarant who appears to have had opportunity to observe personally the events; and (iv) a statement made before there has been time to reflect and fabricate. See United States v. Mitchell, 145 F.3d 572, 576 (3d Cir.1998); Miller v. Keating, 754 F.2d 507 (3d Cir.1985). In the memorandum opinion it issued following the Rule 104 hearing, the District Court carefully applied our four-part Rule 803(2) analysis as set forth in Mitchell and Miller and concluded that Officer Hughes’s testimony about the statements of the two declarants satisfied each of the four prongs. First, the court held that the two declarants’ observation of a man wielding a firearm qualified as a startling occasion. Significantly, Brown all but concedes this point in his brief: “On it’s [sic] face, a man waving a gun and threatening" }, { "docid": "4569208", "title": "", "text": "be admissible as an excited utterance. The excited utterance exception “allows for a broader scope of subject matter coverage” than the present sense impression. United States v. Moore, 791 F.2d 566, 572 (7th Cir.1986). This is because the Federal Rules of Evidence provide that an excited utterance includes a statement “relating to” a startling event, Fed.R.Evid. 803(2), while the present sense impression exception is limited to “describing or explaining” the event, Fed.R.Evid. 803(1); see also Moore, 791 F.2d at 572. For the excited utterance exception to apply, we have said that the proponent must demonstrate that: “(1) a startling event occurred; (2) the declarant makes the statement under the stress of the excitement caused by the startling event; and (3) the declarant’s statement relates to the startling event.” Joy, 192 F.3d at 767. The statement “need not be contemporaneous with the startling event to be admissible under rule 803(2) ... [rjather, the utterance must be contemporaneous with the excitement engendered by the startling event.” Id. at 765 (citation and internal quotation marks omitted); see also United States v. Wesela, 223 F.3d 656, 663 (7th Cir.2000) (stating timing of statement important but not controlling and that what matters is whether statement made “contemporaneously with the excitement resulting from the event, not necessarily with the event itself’) (citations omitted). Here, the startling event of a domestic battery occurred. Portis called 911 and reported that Boyce had just hit her and was “going crazy for no reason” and that he had a gun. Next, Portis made her 911 call while under the stress of the excitement caused by the domestic battery. She made the call right after the battery, telling the operator that she had “just” run upstairs to her neighbor’s house. Officer Solomon’s testimony that Portis appeared emotional, as though she had just been in an argument or fight, further supports the district court’s conclusion that Portis made the call while under the stress or excitement of the startling event. Boyce principally takes issue with the district’s court finding that her statements related to the startling event. In particular, he argues that" }, { "docid": "14565977", "title": "", "text": "ago.” This statement is clearly hearsay under the Federal Rules of Evidence and will be excluded unless it comes under an exception. Fed.R.Evid. 801(c) & 802. The plaintiffs argue that the unidentified man’s statement comes under the excited utterance exception. Whether a statement comes under the excited utterance exception to the hearsay rule lies within the discretion of the trial judge. David By Berkeley v. Pueblo Supermarket, 740 F.2d 230, 235 (3d Cir.1984). The burden of establishing the facts which qualify a statement as an excited utterance rests with the proponent of the evidence. Id. In order to meet this burden, the proponent must establish that: (1) a startling occasion occurred, (2) the statement was made before time to fabricate, (3) the statement was made by a declarant who appears to have had opportunity to observe the events personally, and (4) the statement relates to the circumstance of the occurrence. Id.; Miller v. Keating, 754 F.2d 507, 510 (3d Cir.1985). The plaintiffs contend that David By Berkeley supports their proposition that the statement made by the unidentified man was an excited utterance. However, this Court does not find David By Berkeley persuasive in the present case. In David By Berkeley, the Third Circuit held that a statement, heard by three people who testified at the trial, made by an identified declarant after she saw a woman who was eight months pregnant fall directly on her stomach was an excited utterance. However, the Third Circuit in David By Berkeley also noted that the district court had “reached the very outer bounds of his permissible discretion____” Id. at 235 In the present case, the declarant made a statement, heard only by Mrs. Shinners, after he saw an elderly woman fall on her side. To hold that this statement was an excited utterance would require this Court to go beyond the “very outer bounds” of its permissible discretion. Furthermore, the declarant in David by Berkeley was identified although unavailable. In the present case, the declarant is not only unavailable but is also unidentified. When the hearsay declarant is unidentified, the party seeking to" }, { "docid": "23667147", "title": "", "text": "to shoot people would appear to qualify.” Second, the District Court found that the statements of the declarants to Officer Hughes regarding the man brandishing a gun (Hughes testified that the declarants said they “just saw a guy with a gun ... over 7th and New, 7th and Washington Street”) constituted statements relating to the circumstances of the startling occasion. Third, the District Court held that the declarants’ several statements that they had personally seen the man with the gun, coupled with their subsequent statements as they actually pointed out the gunman (“that’s him right there”) adequately established that the men had the opportunity to observe personally the startling event at issue. Fourth, the court concluded that because the declarants appeared to be “very excited,” “very nervous” and “hopping around,” and given that approximately one minute had passed between the startling occasion and the declarants’ statements to Officer Hughes (Hughes testified that the declarants could have walked from the place they had seen the gunman to Officer Hughes’s location in “maybe a minute”), such statements were made without the opportunity to reflect and fabricate. Brown contends, however, that the government failed to provide evidence of the startling event other than Hughes’s discussion of the hearsay statements themselves. This argument, however, fails in light of the generally prevailing rule that an excited utterance may of itself be sufficient to establish the occurrence of the startling event. See Moore, 791 F.2d at 571 (citations omitted) (dictum). Academic commentators tend to agree that the hearsay statement itself is sufficient proof of the exciting event without resort to independent corroborating evidence, in both theory and practice. Most jurisdictions also find the statement in itself sufficient. Similarly, many courts have held that the appearance, behavior and condition of the declarant may establish, without other independent evidence, that a startling event occurred. In addition, the Advisory Committee Note to Federal Rule 803(2) describes rulings holding the statement itself sufficient as “increasing” and the “prevailing practice.” See Fed.R.Evid. 803 Advisory Committee’s Note, 56 F.R.D. 183, 305; 2 McCormick on Evidence S 272, at 206 n. 19. Indeed," }, { "docid": "23667170", "title": "", "text": "under attack. The majority’s stamp of approval on Hughes’ version of events, cloaking it with reliability by ruling it not to be impermissible hearsay, seems to hand the government an unwarranted bonus. We said in Miller v. Keating, 754 F.2d 507 (3d Cir.1985): The unifying trait of all the Rule 803 exceptions is a circumstantial guarantee of trustworthiness sufficient to justify nonproduction of the declarant, whether available or not. Although Rule 806 cannot be read to confer a right to any particular form of attack on the credibility of a hearsay declarant, it does confer a generalized right that is significantly diminished when the hearsay declarant is not only unavailable, but is also unidentified, and the party against whom the hearsay declarant’s statement is introduced is thus deprived not only of the right to cross-examine, but of any meaningful prospect of finding evidence of inconsistency or bias. Id. at 510 (footnote omitted). We then noted, as the majority here does concede, that where the declarant is not identified, the party seeking to introduce such a statement carries a “heavier” burden to demonstrate the statement’s “circumstantial trustworthiness.” Id. at 510. In Miller, there was no question as to whether the startling occasion occurred. Rather, the issue was whether the proponent of the testimony established the de-clarant’s personal knowledge and the statement’s spontaneity. Id. Here, the issue is whether the gun-waving incident ever really happened and, other than the officer’s self-serving statement that the defendant in fact was holding the gun, there is no evidence that the incident in fact occurred. There is no evidence of “circumstantial trustworthiness,” let alone evidence to satisfy a “heavier” burden. Id. at 511. In the circumstances presented here, I would find that Officer Hughes’ testimony concerning the purported statement by the unidentified declarants was insufficient to establish the hearsay statement’s own admissibility. On this record, Hughes’ testimony constitutes “scant[ ]” evidence that the startling event actually occurred; it lacked “sufficient guarantees of trustworthiness” to provide the basis for the admission of the hearsay statement as an excited utterance. Miller, 754 F.2d at 510. I think the" }, { "docid": "23667148", "title": "", "text": "were made without the opportunity to reflect and fabricate. Brown contends, however, that the government failed to provide evidence of the startling event other than Hughes’s discussion of the hearsay statements themselves. This argument, however, fails in light of the generally prevailing rule that an excited utterance may of itself be sufficient to establish the occurrence of the startling event. See Moore, 791 F.2d at 571 (citations omitted) (dictum). Academic commentators tend to agree that the hearsay statement itself is sufficient proof of the exciting event without resort to independent corroborating evidence, in both theory and practice. Most jurisdictions also find the statement in itself sufficient. Similarly, many courts have held that the appearance, behavior and condition of the declarant may establish, without other independent evidence, that a startling event occurred. In addition, the Advisory Committee Note to Federal Rule 803(2) describes rulings holding the statement itself sufficient as “increasing” and the “prevailing practice.” See Fed.R.Evid. 803 Advisory Committee’s Note, 56 F.R.D. 183, 305; 2 McCormick on Evidence S 272, at 206 n. 19. Indeed, Weinstein’s Federal Evidence goes so far as to conclude that “hearsay may be used as the foundation for [the excited utterance] hearsay excep tion. Any other approach would greatly undermine the utility of the exception by causing valuable evidence to be excluded.” Weinstein’s Federal Evidence, S 803.04[2][b], at 803-21 (2d ed.2000). In light of the volume and persuasiveness of authority bearing on the question, we conclude that an excited utterance may itself be sufficient to establish that a startling event occurred and that the question whether corroborating evidence independent of the declaration is needed in a given case to establish the occurrence of such an event is committed to the discretion of the trial judge. Brown also asserts that the government failed to satisfy the fourth criterion of the Mitchell test: that the statements were made before declarants had time to reflect and fabricate. Brown argues that, because Officer Hughes did not know what amount of time had passed between the startling event and the men’s statements and because Hughes did not know if the" }, { "docid": "23667149", "title": "", "text": "Weinstein’s Federal Evidence goes so far as to conclude that “hearsay may be used as the foundation for [the excited utterance] hearsay excep tion. Any other approach would greatly undermine the utility of the exception by causing valuable evidence to be excluded.” Weinstein’s Federal Evidence, S 803.04[2][b], at 803-21 (2d ed.2000). In light of the volume and persuasiveness of authority bearing on the question, we conclude that an excited utterance may itself be sufficient to establish that a startling event occurred and that the question whether corroborating evidence independent of the declaration is needed in a given case to establish the occurrence of such an event is committed to the discretion of the trial judge. Brown also asserts that the government failed to satisfy the fourth criterion of the Mitchell test: that the statements were made before declarants had time to reflect and fabricate. Brown argues that, because Officer Hughes did not know what amount of time had passed between the startling event and the men’s statements and because Hughes did not know if the declarants had come to him directly from the location of the event (a distance Brown concedes could be covered in approximately one minute) or by a more circuitous route, the evidence did not preclude the possibility that the two men had sufficient time to fabricate their story. This argument, too, is unavailing in light of applicable law and the facts of record. Fed.R.Evid. 803(2) does not require that, in order to be admissible, the statement be contemporaneous with the startling event, but rather only with the excitement caused by the event. The critical question in the instant case, therefore, is whether the men’s report of an armed man likely occurred during the period of excitement engendered by their sighting of the gunman. In United States v. Tocco, 135 F.3d 116 (2d Cir.1998), the Court of Appeals for the Second Circuit held an out-of-court statement properly admitted as an excited utterance by a declarant who was “all hyped up” and “nervous” even though it was made some three hours after the startling event. Tocco, 135 F.3d" }, { "docid": "1476935", "title": "", "text": "record to show the order in which the bids were actually read. In addition, the defendant argues that the government’s cross-examination of him was improper in several respects. Finally, defendant challenges the excusal of a juror who overheard the judge discussing the case with his law clerk. II The trial court has broad discretion to assess the admissibility of proffered evidence, and we may reverse its rulings on appeal only when the trial court abused its discretion. See United States v. Davis, 772 F.2d 1339, 1343 (7th Cir.), cert. denied, — U.S. —, 106 S.Ct. 603, 88 L.Ed.2d 581 (1985); United States v. Harris, 761 F.2d 394, 398 (7th Cir.1985); United States v. Latham, 754 F.2d 747, 751 (7th Cir.1985). The district court admitted testimony of Marren’s statements as an excited utterance under Federal Rule of Evidence 803(2). Rule 803 allows hearsay testimony of “[a] statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.” Fed.R.Evid. 803(2). This exception may be applied only if each of three conditions is met: 1) a startling event or condition occurred; 2) the statement was made while the declar-ant was under the stress of excitement caused by the event or condition; and 3) the statement relates to the startling event or condition. See David v. Pueblo Supermarket, 740 F.2d 230, 235 (3d Cir.1984) (requiring “(1) a startling occasion, (2) a statement made before time to fabricate, and (3) the statement relates to the circumstances of the occurrence”); 4 Weinstein’s Evidence ¶ 803(2)[01] (1985). Defendant argues that none of these conditions have been met. We shall address each of these conditions in turn. The appearance, behavior and condition of the declarant may establish that a startling event occurred. See, e.g., Wetherbee v. Safety Casualty Co., 219 F.2d 274 (5th Cir.1955); Wheeler v. United States, 211 F.2d 19 (D.C.Cir.1953), cert. denied, 347 U.S. 1019, 74 S.Ct. 876, 98 L.Ed. 1140 (1954); Notes of Advisory Committee on Proposed Rules (hereinafter “Committee Notes”); Louisell, 4 Federal Evidence 510-11 (1980); 4 Weinstein’s Evidence ¶ 803(2)[01]" }, { "docid": "23667144", "title": "", "text": "decision to admit evidence for abuse of discretion. United States v. Serafini, 233 E.3d 758, 768 n. 14 (3d Cir.2000). Our review of the District Court’s interpretation of the Federal Rules of Evidence is, however, subject to plenary review. Id. We apply an abuse of discretion standard in reviewing the District Court’s rulings on objections to the summation. If a challenge to the summation was not raised in the District Court, we review for plain error only. See United States v. Wert-Ruiz, 228 F.3d 250, 252 n. 1 (3d Cir.2000). In order to demonstrate prosecutorial misconduct under a plain error standard, the review must reveal “egregious error or a manifest miscarriage of justice.” United States v. Price, 76 F.3d 526, 530 (3d Cir.1996). III. DISCUSSION A. EXCITED UTTERANCES The “excited utterance” exception to the hearsay rule is a long recognized one. It is incorporated into the Federal Rules of Evidence in Rule 803(2) which provides that an “excited utterance” is admissible as an exception to the hearsay rule as long as it is a “statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.” The applicability of the exception is unaffected by the availability or unavailability of the declarant as a witness. Fed. R.Evid. 803. The rationale for the excited utterance exception lies in the notion that excitement suspends the declarant’s powers of reflection and fabrication, consequently minimizing the possibility that the utterance will be influenced by self interest and therefore rendered unreliable. See United States v. Joy, 192 F.3d 761, 766 (7th Cir.1999), cert. denied, 530 U.S. 1250, 120 S.Ct. 2704, 147 L.Ed.2d 974 (2000); 2 McCormick on Evidence S 272, at 204-05 (5th ed.1999). Although courts’ articulations of the elements necessary to invoke the exception differ, most agree upon three requirements: (i) the occurrence of a startling event or condition; (ii) the statement in question must have been made while the declarant was under the stress of excitement caused by the event or condition; and (iii) the statement must relate to the startling event" }, { "docid": "23667154", "title": "", "text": "at the, scene of an automobile accident, assigning blame for the accident to the plaintiff. The statement itself did not proclaim the startling event and the record was devoid of evidence from which the court could have inferred that the defendant actually saw the accident. See Miller, 754 F.2d at 511. In the present case, however, the declarants did in fact claim to have personally seen the startling event: a man wielding a gun. Moreover, the de-clarants are simply stating what they observed. They are not giving an opinion, which is what occurs when the declarant points a finger of fault for causing the accident. For these reasons, we find this case is distinguishable from Miller. Furthermore, even if we did interpret the “heavier burden” for unidentified de-clarants, established in Miller, to require corroboration of the startling event beyond the excited utterance itself, the fact that Officer Hughes almost immediately came upon Brown, who was visibly carrying a gun and who was identified as the gun brandisher by the two declarants, provides such corroboration. See United States v. Collins, 60 F.3d 4, 8 (1st Cir.1995) (excited utterance regarding appellant’s threat to shoot the victim corroborated when appellant returned shortly thereafter to scene of the threat bearing a loaded gun while de-clarant spoke to a police officer). We note also that we have recently addressed the issue of the reliability of a statement by an unidentified informant, albeit in a different context. In United States v. Valentine, 232 F.3d 350 (3d Cir.2000), we held that an unidentified informant’s tip in a high crime area to a law enforcement officer that a man wearing a blue sweat top, blue pants, and a gold neck chain had a gun, was not to be considered unreliable solely because the informant refused to identify himself to the officer. We found the statement sufficiently reliable to justify an investigatory stop of the suspect. Id. at 357. As the Supreme Court has instructed, the question is whether the anonymously reported information “should be deemed trustworthy in light of the total circumstances.” Id. at 354 (citing Illinois v." }, { "docid": "1476936", "title": "", "text": "applied only if each of three conditions is met: 1) a startling event or condition occurred; 2) the statement was made while the declar-ant was under the stress of excitement caused by the event or condition; and 3) the statement relates to the startling event or condition. See David v. Pueblo Supermarket, 740 F.2d 230, 235 (3d Cir.1984) (requiring “(1) a startling occasion, (2) a statement made before time to fabricate, and (3) the statement relates to the circumstances of the occurrence”); 4 Weinstein’s Evidence ¶ 803(2)[01] (1985). Defendant argues that none of these conditions have been met. We shall address each of these conditions in turn. The appearance, behavior and condition of the declarant may establish that a startling event occurred. See, e.g., Wetherbee v. Safety Casualty Co., 219 F.2d 274 (5th Cir.1955); Wheeler v. United States, 211 F.2d 19 (D.C.Cir.1953), cert. denied, 347 U.S. 1019, 74 S.Ct. 876, 98 L.Ed. 1140 (1954); Notes of Advisory Committee on Proposed Rules (hereinafter “Committee Notes”); Louisell, 4 Federal Evidence 510-11 (1980); 4 Weinstein’s Evidence ¶ 803(2)[01] at 803-87 & n. 10 (1985). Further, the declaration itself may establish that a startling event occurred. See Committee Notes; McCormick on Evidence 705 & n. 24 (2d ed. 1972); 4 Weinstein’s Evidence ¶ 803(2)[01] at 803-87 to 88 (1985). In the case before us Marszalek offered testimony that Marren’s appearance and behavior indicated that a startling event had occurred. Marszalek testified that Marren was not normally an excitable person and she had never before seen her so excited. Tr. at 246. She repeatedly stated that Marren was very excited, “just like jumping up and down.” Tr. at 246; see also Tr. at 248, 249. Marren was flushed. Tr. at 249. She was talking “[a]s if she had won a million dollars in a lottery.” Tr. at 249. Of course, Marren’s statement itself may indicate that a startling event occurred. Marren told Marszalek that she finally found the evidence she had been looking for for a long time. Tr. at 245-46, 263. When one searches for something for a long time, perhaps not knowing if" }, { "docid": "9341994", "title": "", "text": "390, 393 (7th Cir.1991); Ferrier v. Duckworth, 902 F.2d 545, 548 (7th Cir.1990). Though this would seem to end the inquiry, there is still the danger that, by relying too heavily on the labels used by a state court, a federal court could abdicate its duty to investigate whether a statement actually was reliable. Puleio, 830 F.2d at 1207. Thus, we go beyond the inference of reliability, looking to the record to see if it supports admission under this exception. See id.; see also Webb, 922 F.2d at 393-94, and Smith v. Fairman, 862 F.2d 630, 635-36 (7th Cir.1988) (both examining the factual basis for admitting excited utterances, despite the allowable inference that such statements are reliable). The excited utterance exception is premised on the belief that a declarant is unlikely to fabricate statements while under the stress of a startling event. 4 J. Weinstein & M. Berger, Weinstein’s Evidence, 11803(2)[01], at 803-86 (1991). The exception has three requirements: (1) there must be a startling event or condition, (2) the statement must occur while the declarant is under the stress or excitement caused by the event or condition, and (3) the statement must relate to the startling event or condition. United States v. Moore, 791 F.2d 566, 570 (7th Cir.1986). Jose argues that the challenged statements were not excited utterances because: (1) the fight was not a startling event, and (2) the prosecution’s theory that John was acting deliberately and sending signals to Jose at the time of the statements is irreconcilable with the court’s finding that John’s statements were reliable because they were excited utterances. The state courts and district court found that the fight, outside a bar at night, was a startling event. This is a supportable conclusion. Though John provoked the fight, startling events need not be completely unexpected, so long as the declarant is actually startled. United States v. Moore, 791 F.2d 566, 571 n. 2 (7th Cir.1986); But see United States v. Knife, 592 F.2d 472, 481 n. 10 (8th Cir.1979) (noting that a defendant’s statement after a pre-planned assault was unlikely to qualify as" } ]

[ { "docid": "14351804", "title": "", "text": "His theory is that the witnesses avoided picking one of the other five pictures because the staring and the overall strong presence of eyes that marked those pictures made them very dissimilar to the witness’ memories of the robber. When the constitutionality of a photo array is challenged, the due process clause requires a two-pronged inquiry: first, the court must determine whether the photo ar ray was impermissibly suggestive, and if it is found to be so, then the court must decide whether the identifications were nevertheless reliable in view of the totality of the circumstances. See Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247 (1968); Johnston v. Makowski, 823 F.2d 387, 391 (10th Cir.1987), cert. denied, 484 U.S. 1026, 108 S.Ct. 750, 98 L.Ed.2d 763 (1988). These two. prongs must be analyzed separately, and it is only necessary to reach the second prong if the court first determines that the array was impermissibly suggestive. Johnston, 823 F.2d at 391. In denying Defendant’s suppression motion, the district court made no factual findings as required by Federal Rule of Criminal Procedure 12(e), but merely recited the two-pronged Simmons standard in a one-page order. While we must review the district court’s underlying factual findings, if any were made, under the clearly erroneous standard, United States v. Thody, 978 F.2d 625, 629 (10th Cir.1992), the ultimate question of whether trial and pretrial identification evidence infringed due process rights is reviewed de novo. Grubb's v. Hannigan, 982 F.2d 1483, 1489 n. 5 (10th Cir.1993). Accordingly, we must now turn to the first prong of Simmons, i.e., whether the photo array was impermissibly suggestive. Courts use a number of factors to make this determination, including the size of the array, the manner of its presentation by the officers, and the details of the photographs themselves. See United States v. Rosa, 11 F.3d 315, 330 (2d Cir.1993). Although Defendant alleges that the presentation by the officer in this case was suggestive and prejudicial, the bulk of his argument on appeal involves the third factor, the details of the photographs." } ]

[ { "docid": "20049572", "title": "", "text": "somewhat doubtful that the array was actually impermissibly suggestive. Welke had reported that the shorter robber was 5' 6\", but the height bars in Johnson’s picture indicated that he was between 5' 9\" and 5' 10\". This difference is substantial and undermines Johnson’s claim that the array was unduly suggestive with respect to Welke. Hyland, on the other hand, had indicated that the shorter robber was 5' 9\", but he was unable to pick Johnson out of the photo array. And Appleby was previously acquainted with Johnson; in fact he provided the police with Johnson’s name, which led to Johnson’s picture being in the array. Thus it is difficult to conclude that the height bars had any suggestive effect for Appleby. Appleby was quite familiar with Johnson’s appearance outside of the context of the robbery. We need not actually decide the issue of improper suggestiveness, however, since we are convinced that the photo identifications of Welke and Appleby were otherwise reliable. The Supreme Court has established five factors to consider in making the determination whether an identification is reliable: 1) the opportunity of the witness to view the criminal at the time of the crime, 2) the witness’ degree of attention at the time, 3) the accuracy of the witness' prior description of the criminal, 4) the level of certainty demonstrated by the witness at the identification, and 5) the length of time between the crime and the identification. Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 2253, 53 L.Ed.2d 140 (1977); Neil, 409 U.S. 188, 199, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). Even though Welke did not get to see much of the shorter robber’s face, we are convinced that the circumstances of his selection of Johnson’s photo from the array made the identification reliable. While Welke saw only a portion of the robber’s face and only viewed him directly for 30 to 60 seconds, the robber was standing right in front of him during this time, allowing Welke to concentrate on the features that were visible. And it appears from his testimony that Welke did" }, { "docid": "437486", "title": "", "text": "of identification testimo-ny_” Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 2253, 53 L.Ed.2d 140 (1977). If there was a suggestive identification procedure, the question becomes whether the suggestiveness “created ‘a very substantial likelihood of misidentification.’ ” United States v. Milhollan, 599 F.2d 518, 522-23 (3d Cir.) (quoting Neil v. Biggers, 409 U.S. 188, 198, 93 S.Ct. 375, 381, 34 L.Ed.2d 401 (1972)), cert. denied, 444 U.S. 909, 100 S.Ct. 221, 62 L.Ed.2d 144 (1979). This question is to be answered with reference to the “totality of the circumstances,” with particular attention paid to such relevant factors as the quality of the witnesses’ original opportunity to view the criminal, their degree of attention, their level of certainty when confronted with the suspect or his image, and the length of time between the crime and the confrontation. See Neil, 409 U.S. at 199-200, 93 S.Ct. at 382-83; Manson, 432 U.S. at 114-16, 97 S.Ct. at 2253-54. Here the witnesses all observed Dowling in good light, and had adequate, if not ample, time to form an impression. Mes-ser, whose view was perhaps the least advantageous, made a deliberate effort to make an effective observation bécause, he testified, he knew he would be asked by the police for a description. Rosario and Pi-chardo were also more than just casual observers because Dowling was an undesirable intruder. All three witnesses were presented with photo arrays soon after the robbery, and all three identified Dowling’s picture from the first array.' All three picked no one from the pre-lineup array in which Dowling’s photo was absent. Against this is to be weighed the slight, and likely inadvertent, suggestiveness of the repeated use of different photographs of Dowling in succeeding photo arrays. There is no evidence that the police added in any way to the possible suggestiveness of the repetition, nor that they availed themselves of the photo arrays unnecessarily. Under these circumstances, we cannot say that there was a “very substantial likelihood of misidentification,” and therefore the district court did not violate Dowling’s right to due process in denying his motion to suppress. III." }, { "docid": "3742955", "title": "", "text": "particular gun or guns possessed; (3) that there was insufficient evidence to support his conviction for possession of a firearm; and (4) that the four-level enhancement under § 2K2.1(b)(5) was improper because the evidence was insufficient to prove that he participated in the Club Paradise robbery. We consider Saunders’s arguments in turn. II. Saunders’s principal argument is that the district court erred in denying his motion to suppress the out-of-court and in-court identifications of him by Burton, the cashier. Saunders argues that Burton’s out-of-court photo identification violated his right to due process because the photo array was impermissibly suggestive. Burton’s in-court identification should also have been excluded, he argues, because it was tainted by the suggestive photo array. The district court disagreed, concluding that the photo array was not suggestive and that Burton’s identification did not violate the Due Process Clause. The district court’s findings as to the factual particulars of Burton’s identification, which we would review for clear error, are not contested. We review de novo the court’s legal conclusion as to whether the identification violated the Due Process Clause. See United States v. Burgos, 55 F.3d 933, 941 (4th Cir.1995). Due process principles prohibit the admission at trial of an out-of-court identification obtained through procedures “so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.” Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968). The Due Process Clause is not implicated, however, if the “identification was sufficiently reliable to preclude'the substantial likelihood of misidentification.” United States v. Johnson, 114 F.3d 435, 442 (4th Cir.1997); see also Manson v. Brathwaite, 432 U.S. 98, 106, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977) (stating that the central question is “whether under the totality of the circumstances the identification was reliable even though the [identification] procedure was suggestive”) (internal quotations omitted). The consideration of whether the identification testimony is admissible proceeds in two steps. United States v. Wilkerson, 84 F.3d 692, 695 (4th Cir.1996) (citing Brathwaite, 432 U.S. at 110, 97 S.Ct. 2243). First, the defendant must show that the photo" }, { "docid": "908387", "title": "", "text": "alleges that the identifications made of him were suggestive and tainted. All of the victims, Mr. and Mrs. O’Brien and Cara O’Brien, identified the petitioner as one of their assailants. Mr. and Mrs. O’Brien testified that they identified the petitioner in a photo array, at a lineup and made an in-court identification. Cara O’Brien testified that she identified the petitioner at a show up, at a lineup and made an in-court identification. In Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968), the Supreme Court set forth a two prong test for the exclusion of identifications based on impermissibly suggestive photo arrays. The first prong of the analysis is the determination of whether the identification procedure was impermissibly suggestive. If it is not, the inquiry ends. If it is, a separate inquiry must be made as to whether under the totality of the circumstances the suggestiveness leads to a substantial likelihood of irreparable misidentification. It is upon this dual finding that the claim of a denial of due process rests. In evaluating this complaint we have the guidance of substantial precedent. Under this analysis “reliability is the linchpin in determining the admissibility of identification testimony.” Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 2253, 53 L.Ed.2d 140 (1977). Thus, an identification found to be reliable will be admitted even though the confrontation procedure was suggestive. The factors to be considered in evaluating the reliability of an identifica tion were enumerated in Neil v. Biggers, 409 U.S. 188, 199, 93 S.Ct. 375, 382, 34 L.Ed.2d 401 (1972), and reaffirmed in Manson, supra, 432 U.S., at 114, 97 S.Ct., at 2253. These include the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation. Id. Against these factors is to be weighted the corrupting effect of the identification itself. Manson, supra, at 114, 97" }, { "docid": "23307077", "title": "", "text": "judge to adopt such a course, we certainly do not think that the ineffective assistance claim presented to the district court in this case raised such grave doubt about the fairness of the proceedings that an abuse of the trial judge’s discretion has been shown. IV Defendant contends that the district court erred in denying his motion to exclude evidence of identifications, both those made at trial and those made out of court, by several witnesses who were shown a photo lineup, consisting of photos of defendant and five other young men. Defendant contends that the photo array was impermissibly suggestive and that the resulting identifications of him by the witnesses were so tainted by the improperly suggestive features of the photo array that admission of this testimony at trial violated his due process rights. The constitutional question whether a photo array was impermissibly suggestive invokes the inquiry we staked out in United States v. Sanchez, 24 F.3d 1259, 1261-62 (10th Cir.1994): When the constitutionality of a photo array is challenged, the due process clause requires a two-pronged inquiry: first, the court must determine whether the photo array was impermissibly suggestive, and if it is found to be so, then the court must decide whether the identifications were nevertheless reliable in view of the totality of the circumstances .... While we must review the district court’s underlying factual findings, if any were made, under the clearly erroneous standard, ... the ultimate question of whether trial and pretrial identification evidence infringed due process rights is reviewed de novo. Grubbs v. Hannigan, 982 F.2d 1483, 1489 n. 5 (10th Cir.1993). See also Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977). In the first stage of our analysis, a number of factors may be relevant in determining whether the array was improperly suggestive. These include “the size of the array, the manner of its presentation by the officers, and the details of the photographs themselves.” United States v. Sanchez, 24 F.3d at 1262. The district court held an evidentiary hearing on defendant’s objections to the identifications and" }, { "docid": "21112799", "title": "", "text": "district court did not err when it found that petitioner proeedurally defaulted his Sixth Amendment claim. B. Photographic Array McGowan next argues that the second array was so unduly suggestive that it deprived him of due process, for three reasons. First, he contends that two of the photos from the first array were included in the second array. McGowan claims that this “overlap” of photos had the effect of suggesting that the person who committed the bank frauds was depicted in the four new photographs, thus increasing the chance that McGowan would be picked. Second, McGowan argues that four of the six photographs in the second array depicted men much younger than himself and that, therefore, his likeness was emphasized over the others. Third and finally, McGowan argues that Detective Fine impermissibly suggested to a witness who initially did not pick McGowan from the second array that she had picked the wrong suspect and should try again. In Stewart v. Duckworth, 93 F.3d 262 (7th Cir.1996), we recently reaffirmed the test we apply to a challenge to pretrial identification procedures: The constitutionality of a challenged pretrial identification procedure is analyzed in two steps. First, the court must determine whether the procedure was “unnecessarily suggestive.” Even if the procedure was “unnecessarily suggestive,” the identifieation may still be admissible if “under the totality of the circumstances the identification was reliable even though the confrontation procedure was suggestive.” Neil v. Biggers, 409 U.S. 188, 199, 93 S.Ct. 375, 382, 34 L.Ed.2d 401 (1972). In analyzing the totality of the circumstances, courts consider “the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by witness at the confrontation, and the length of time between the crime and the confrontation.” Id. 93 F.3d at 265. “Whether a pretrial identification procedure is unduly suggestive and whether a witness’s subsequent identification is nonetheless reliable under the totality of the circumstances are two separate inquiries that should be approached sequentially^]” United States v." }, { "docid": "22350872", "title": "", "text": "by Gassin At trial sessions in February 1989, Gas-sin testified that Camacho was the man who had come to her house in Boston in September 1984 to prepare the motor home, which was then behind her house, for the transportation of part of the Wells Fargo money to Mexico. She had difficulty in identifying Camacho at trial, however, until after she reviewed a photographic array from which she had selected Camacho’s picture in September 1985. Camacho contends that the admission of Gassin’s identifications of him violated his Fifth Amendment rights because (a) the photographic array was impermissibly suggestive, and (b) in any event, the in-court identification was solely the product of Gassin’s recent review of the photographic array. We find no error. The linchpin for admissibility of identification testimony is reliability. Manson v. Brathwaite, 432 U.S. 98, 106-07 n. 9, 114, 97 S.Ct. 2243, 2249 n. 9, 2253, 53 L.Ed.2d 140 (1977). In reviewing a due process challenge to the admission of such testimony, we must look at the facts of each case and the totality of the surrounding circumstances. See id.; Simmons v. United States, 390 U.S. 377, 383-84, 88 S.Ct. 967, 970-71, 19 L.Ed.2d 1247 (1968); accord Neil v. Biggers, 409 U.S. 188, 199, 93 S.Ct. 375, 382, 34 L.Ed.2d 401 (1972). The ultimate questions are whether the pretrial proceedings have been conducted in a manner that was unnecessarily suggestive and whether, in all the circumstances, there is “a very substantial likelihood of irreparable misidentifieation.” Simmons v. United States, 390 U.S. at 384, 88 S.Ct. at 971; see Stovall v. Denno, 388 U.S. 293, 302, 87 S.Ct. 1967, 1972, 18 L.Ed.2d 1199 (1967). When a witness has made a pretrial identification, the analysis of whether he is to be permitted to identify the defendant at trial normally requires a one-step or two-step inquiry. The first question is whether the pretrial identification procedures were unduly suggestive of the suspect’s guilt. If they were not, the trial identification testimony is generally admissible without further inquiry into the reliability of the pretrial identification. In that circumstance, any question as to the" }, { "docid": "1099876", "title": "", "text": "during the preliminary-hearing, at the time, Love was seated at the defense table and was the only black man in the courtroom. Love argues that both the photographic and in-court procedures used to identify him were unduly suggestive and thus violated his Fourteenth Amendment right to due process. Relying on the victim’s testimony that she did not see the written description on the back of Love’s picture and Detective Ostrander’s testimony that the victim paid no attention to the written inscriptions before identifying Love as the assailant, the Wisconsin Appellate Court found that the identification of Love in the photographic array was not impermissibly suggestive. The Wisconsin Appellate Court also held that the identification procedures employed at the preliminary hearing were extremely suggestive, but that the victim’s identification of Love as her assailant was sufficiently reliable to satisfy any due process challenge. The district court concurred in each of these conclusions. The basis of Love’s Fourteenth Amendment due process claim is that the pre-trial identification procedures used by the state were so inherently unreliable that there was a substantial chance of misidenti-fication. The analysis of Love’s Fourteenth Amendment due process claim involves two steps. Initially, it must be demonstrated that those procedures were unduly suggestive. See Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977); Griswold v. Greer, 712 F.2d 1200, 1204 (7th Cir.1983). If the court finds that these procedures were unduly suggestive, it must then determine, considering the totality of the circumstances, whether the out-of-court identification was nevertheless reliable. Manson v. Brathwaite, 432 U.S. at 114, 97 S.Ct. at 2253; Neil v. Biggers, 409 U.S. 188, 199-200, 93 S.Ct. 375, 382-83, 34 L.Ed.2d 401 (1972). The Wisconsin Appellate Court found that the photographic array was not unduly suggestive because the victim testified that she did not see the written inscriptions on the back of Love’s photograph until after she had identified him. This finding of fact by a state court is entitled to a presumption of correctness. Sumner v. Mata, 455 U.S. 591, 597, 102 S.Ct. 1303, 1306, 71 L.Ed.2d 480 (1982). Cf." }, { "docid": "4237630", "title": "", "text": "out-of-comb identification as “unduly suggestive or otherwise unreliable.” Therefore, we hold that no exceptional circumstances exist entitling Daily to a constitutionally mandated pretrial hearing on Simmer’s identification. 3. Suggestiveness and Reliability of Simmer’s Identification Daily’s final argument is that, even if a pretrial hearing on the admissibility of the identification was not constitutionally necessary, the record demonstrates that Simmer’s out-of-court identification was unreliable and suggestive and produced an unreliable in-court identification. As we previously noted, Daily never objected to the out-of-court identification as unreliable or unduly suggestive; instead, he objected to the identification based on “untimely disclosure” and the magistrate judge’s R & R stating that if the government decided to offer identification evidence, he would receive a pretrial hearing. Because Daily failed to object based on the unreliability or suggestiveness of the out-of-court procedure, we review for plain error. Rahn v. Hawkins, 464 F.3d 813, 819 (8th Cir.2006). We employ a two-step analysis to determine whether an identification is unreliable. United States v. Martin, 391 F.3d 949, 952 (8th Cir.2004). First, the defendant must establish that the photographic arrays shown to the witness were “imper-missibly suggestive.” Id. Second, if the photographic arrays were “impermissibly suggestive,” then the court inquires “whether, under the totality of the circumstances of the case, the suggestive confrontation created a very substantial likelihood of irreparable misidentification.” Id. (internal quotations and citations omitted). “Pared to its essence, the second inquiry is whether the identification is reliable.” Graham v. Solem, 728 F.2d 1533, 1541 (8th Cir.1984). Here, Simmer was shown an array of photographs, not a single photograph. In addition, Simmer was shown the same photo array within a two-week period, not two separate photo arrays where the defendant was the only person appearing in both arrays. We also note that the police did not continuously bombard Simmer with showups, lineups, and photo arrays until she identified Daily; instead, the authorities only conducted the second photo array after Simmer indicated her belief that she could identify the robber. Cf. Neil v. Biggers, 409 U.S. 188, 195, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972) (finding suggestive an out-of-court" }, { "docid": "23560026", "title": "", "text": "is overruled.” However, it was not until after this ruling that the district court formally admitted the photo array. Therefore, we conclude that the objection was timely made and that the proper review is for clear error. In determining whether the trial court committed clear error in allowing the identification testimony from the photo array we engage in a two-step analysis. United States v. Hall, 109 F.3d 1227, 1237 (7th Cir.1997). The first question is whether the identification procedure used was unduly suggestive. Id. If it is found unduly suggestive, the identification can still be admissible so long as the testimony was rehable, given the totality of the circumstances. Id. at 1237-38. In assessing reliability we look to five factors: “(1) the opportunity of the witness to view the event and the actor; (2) the degree of the witness’s attention; (3) the accuracy of the witness’s description; (4) the witness’s level of certainty; and finally, (5) the time elapsed between the crime and the identification.” United States v. Fryer, 974 F.2d 813, 821 (7th Cir.1992). According to the Supreme Court, “the primary evil to be avoided is ‘a very substantial likelihood of irreparable misidentification.’ ” Neil v. Biggers, 409 U.S. 188, 198, 93 S.Ct. 375, 381, 34 L.Ed.2d 401 (1972) (quoting Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247 (1968)); see Funches, 84 F.3d at 253. Moore fails to pass even the first hurdle of the two-step analysis. Witnesses pertaining to the robbery of Security were shown the challenged photo array six months after the robbery. Only one of the four witnesses that identified Moore relative to the Security robbery had apparently mentioned prior to being shown the photo array that the person seeking directions had a “distinctive eyebrow.” Additionally, only two of the four witnesses who identified Moore in the photo array, with respect to the person asking for directions prior to the Security robbery, stated that he had a notched eyebrow with lines shave into it and that it was the most distinctive feature they noticed when they saw him. A" }, { "docid": "437485", "title": "", "text": "and skin hues. However, some of the other men also wore colored tee-shirts. In all three arrays, the photographs were virtually identical in composition and quality, and the men portrayed were reasonably comparable in dress and appearance. We agree with the district court that the photo arrays were not suggestive. A few days after a line-up, at which Pichardo, Rosario and Messer failed to identify Dowling, they were separately shown an array of photographs taken of the participants in the line-up and each picked out Dowling. Dowling contends that the process was impermissibly suggestive because his photograph was the only one repeated in the photo arrays that the principal witnesses saw prior to the line-up and prior to their viewing of the two arrays of photographs drawn from the line-up. The district court concluded that this repetition standing alone did not affect suggestiveness. Under some circumstances, repetition of a photograph could be suggestive. However, a degree of suggestiveness does not in itself require exclusion of the evidence. “[Reliability is the linchpin in determining the admissibility of identification testimo-ny_” Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 2253, 53 L.Ed.2d 140 (1977). If there was a suggestive identification procedure, the question becomes whether the suggestiveness “created ‘a very substantial likelihood of misidentification.’ ” United States v. Milhollan, 599 F.2d 518, 522-23 (3d Cir.) (quoting Neil v. Biggers, 409 U.S. 188, 198, 93 S.Ct. 375, 381, 34 L.Ed.2d 401 (1972)), cert. denied, 444 U.S. 909, 100 S.Ct. 221, 62 L.Ed.2d 144 (1979). This question is to be answered with reference to the “totality of the circumstances,” with particular attention paid to such relevant factors as the quality of the witnesses’ original opportunity to view the criminal, their degree of attention, their level of certainty when confronted with the suspect or his image, and the length of time between the crime and the confrontation. See Neil, 409 U.S. at 199-200, 93 S.Ct. at 382-83; Manson, 432 U.S. at 114-16, 97 S.Ct. at 2253-54. Here the witnesses all observed Dowling in good light, and had adequate, if not ample, time to form" }, { "docid": "17212469", "title": "", "text": "(holding that a photo array was not unduly suggestive even though the suspect was the only person in the array with a goatee); United States v. Thurston, 771 F.2d 449, 453 (10th Cir.1985) (concluding that a photo array was not unduly suggestive even though the defendant’s “picture was the only one among the display exhibits which had a beard”). Second, the actual robber had covered the bottom portion of his face during the Gen X robbery. Thus, the witnesses would lack any apparent reason to focus on a subject based on his facial hair (or lack of facial hair). Third, “a photo lineup is not necessarily suggestive merely because the individuals in the lineup differ in facial characteristics.” Grubbs v. Hannigan, 982 F.2d 1483, 1490 (10th Cir.1993). In fact, even Mr. Kepa Maumau’s expert agreed that some variation among facial features was useful. See Kepa Maumau R. vol. 4, pt. 1, at 90 (Dr. Dodd’s testimony agreeing that “lineups should not be composed of individuals who are too similar to one another” and that “some degree of variation among the individuals [was] desirable”). Accordingly, the district court did not err in finding that the array was not unduly suggestive. 3. Reliability of Identifications Even if we were to conclude that the array was unduly suggestive, we would decline to reverse because the identifications were reliable. When a photo array is unduly suggestive, we consider whether it is sufficiently reliable to satisfy due process. See United States v. Sanchez, 24 F.3d 1259, 1261-62 (10th Cir.1994). For reliability, the pertinent factors include: (1) the opportunity of the witness to view the suspect during the crime, (2) the witness’s level of attention during the crime, (3) the accuracy of the witness’s prior description of the suspect, (4) the level of certainty the witness demonstrated during the array, and (5) the time lapse between the crime and the array. See United States v. Wiseman, 172 F.3d 1196, 1210 (10th Cir.1999). The employees’ identifications were sufficiently reliable even if we were to conclude that the array was unduly suggestive. Mr. Kepa Maumau makes three arguments" }, { "docid": "1948703", "title": "", "text": "implicated the Defendants at trial. 10 R. 346-48. Defendants contend that from the outset the victim undoubtedly was aware that the Defendants were included in the photo array, and that the appearance of the Defendants at the state preliminary hearing was “inherently suggestive.” They further argue that the federal trial identification from the photo array was “obviously suggestive and unreliable” because the Defendants were seated in federal court. Whether identification procedures are violative of due process is a legal question reviewed de novo. United States v. Smith, 156 F.3d 1046, 1050 (10th Cir. 1998), cert. denied, — U.S. -, 119 S.Ct. 844, 142 L.Ed.2d 699 (1999). The admission of in-court identification testimony violates due process only when, under the totality of the circumstances, it was tainted by unnecessarily suggestive pretrial identification procedures creating a “very substantial likelihood of misidentification.” Id. at 1051. In evaluating the likelihood of misidentification, a court considers “the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.” Neil v. Biggers, 409 U.S. 188, 199-200, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). These factors are weighed against any “corrupting effect of the suggestive identification itself.” Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977). Defendants have failed to demonstrate that the pretrial identification procedures in this case were “unnecessarily suggestive.” Id. at 113, 97 S.Ct. 2243. In United States v. Aigbevbolle, 772 F.2d 652, 653-54 (10th Cir.1985), we held that the inability to identify a defendant from a photo array does not render a subsequent in-court identification inadmissible, rather that inability goes to the weight of the witness’s testimony, not its admissibility. Likewise, though the presence of Defendants at the state preliminary hearing may have been suggestive given the nature of such a hearing, that is not enough to render the subsequent trial identification inadmissible. See Johnson v. Sublett, 63" }, { "docid": "17212466", "title": "", "text": "determining the admissibility of identification testimony.”). 2. Unduly Suggestive Under the first prong, we consider the number of photographs in the array, the way that the police present the array, and the details of the photographs. See Sanchez, 24 F.3d at 1262. Though we consider the number of photographs in the array, this factor goes to the “weight given to other alleged problems or irregularities in an array”; the number is not itself a substantive factor. Id. (emphasis omitted). After police detectives viewed the Gen X surveillance video, they believed that the robbers were Kepa Maumau and Edward Kamoto. A police detective then created an array of six photographs to show the three Gen X employees who had seen the crime. Two of the three employees identified Mr. Kepa Maumau as the robber; the third was unable to make an identification. During the motion-to-suppress hearing, the Government called the detective who had created the array and shown the array to the employees. In response, Mr. Kepa Maumau called an expert, Dr. David Dodd, to testify about eyewitness reliability. Dr. Dodd testified that the “functional size” of the photo array was actually 1.7 photographs, rather than 6, based on a mock-photo array using 12 mock witnesses .20 After hearing this testimony, the district court found that the array was not unduly suggestive. This finding did not involve clear error. First, we consider the size of the array: six photos. Though six is “a number sufficiently small to weigh heavily in the balance of factors to be considered,” it does not create a “per se unconstitutional” array. Sanchez, 24 F.3d at 1262-63. We also consider the presentation of the array. The district court found that the police detective had presented the photo array in a neutral manner, admonishing the witnesses not to identify anyone if they were unsure, telling them not to guess, and saying that they had no obligation to identify anyone. Kepa Maumau R. vol. 1, pt. 2, at 306-07. Mr. Kepa Maumau does not supply any reason to regard these findings as clearly erroneous. Finally, we consider the details" }, { "docid": "17212464", "title": "", "text": "this statement as truthful. Even if the finding constituted an obvious error, however, reversal would be unwarranted because Mr. Kamahele has not shown any effect on his substantial rights. See United States v. Gonzalez Edeza, 359 F.3d 1246, 1250 (10th Cir.2004) (noting that plain error is established only “[i]f all four prongs are satisfied”). Mr. Kamahele’s substantial rights were not involved. The trial involved eight defendants, and the jury had no reason to suspect that Mr. Naa would testify about Mr. Kamahele. Accordingly, Mr. Kamahele provides no basis for us to find plain error from Mr. Naa’s invocation of the Fifth Amendment. C. Suggestiveness of a Photo Array The police used a photo array to identify the Gen X robbers. Two of the victims identified a robber from the photographs, and the individual identified was Mr. Kepa Maumau. He argued that the array was unduly suggestive and that the district court should exclude the employees’ identifications. The district court concluded that the photo array was not unduly suggestive, and we agree. Even if it were, however, reversal would not be warranted in light of the reliability of the witnesses’ identifications. 1. Standard of Review When reviewing the admission of a photo array used to identify a defendant, we apply the clear-error standard to factual findings and engage in de novo review of due-process issues. United States v. Sanchez, 24 F.3d 1259, 1262 (10th Cir.1994). When we review a defendant’s challenge to an identification from the photo array, we conduct a two-pronged inquiry. We first determine whether the photo array was unduly suggestive; if it is, we decide whether the identifications were still reliable in view of the totality of the circumstances. See United States v. Wiseman, 172 F.3d 1196, 1208 (10th Cir.1999). Ultimately, we must determine whether the unduly suggestive array created a “substantial likelihood of misidenti-fication.” Neil v. Biggers, 409 U.S. 188, 201, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). If so, the defendant’s due-process rights have been violated. See Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977) (“[R]eliability is the linchpin in" }, { "docid": "3979305", "title": "", "text": "men, in his photograph the eyes are very distinctive from the other photographs; and (3) his is the only photo of a man with a goatee. We conclude that there was nothing unlawful about the procedure whereby Agent Thomasson identified Flores. The constitutionality of an identification procedure is decided by the reviewing court de novo. See U.S. v. Kimball, 73 F.3d 269, 272 (10th Cir.1995). Factual findings of the trial court are reviewed for clear error. See id. When the police employ a photo line-up for identification purposes, the procedure must not be “unnecessarily suggestive.” Grubbs v. Hannigan, 982 F.2d 1483, 1489-90 (10th Cir.1993). This court has held that a photo array containing only six pictures, among which the defendant’s photo was the only one of a person with his eyes closed, was not unnecessarily suggestive. See United States v. Sanchez, 24 F.3d 1259, 1263 (10th Cir.1994). Even if a photo line-up is unnecessarily suggestive, it will not invalidate a subsequent in-eourt identification unless the line-up is so unnecessarily suggestive that it overwhelmed the other indicia of reliability that might validate the in-court identification. See Grubbs, 982 F.2d at 1490. Indeed, a photo array consisting of only one photo may be acceptable if the witness has had a clear opportunity to positively identify the suspect prior to the array, thé witness expresses a great deal of certainty with regard to the identification, and the circumstances of the identification show a lack of coercive pressure on the identifying witness to make an identification from that photo. See Manson v. Brathwaite, 432 U.S. 98, 114-16, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977); see also 1 Wayne R. LaFave & Jerold H. Israel, Criminal Procedure § 7.4(e) (1984). The ultimate test is whether the suggestive line-up created a “very substantial likelihood of irreparable misidentification.” Manson, 432 U.S. at 116, 97 S.Ct. 2243 (quotation and citation omitted). We find that the photo array in this case was not unnecessarily suggestive. The nine photographs were all of Hispanic males of roughly similar build, height, age, and hairstyles. Further, the officer providing Agent Thomasson with the" }, { "docid": "21913702", "title": "", "text": "photo array. Muszynski’s inability to pick Hamilton out of the photo array did not render his in-eourt identification invalid. United States v. Dobson, 512 F.2d 615 (6th Cir. 1975). The weight to be given to his identification was a jury question. Id. at 616. Since Tramble and Melton did initially identify Hamilton from the photo array, we must determine if the use of the array violated due process. There is little doubt that a photo array in which the defendant appears in three out of seven pictures is somewhat suggestive. Suggestiveness of the identification procedure, however, does not merit suppression by itself. The proper standard is whether, under the totality of the circumstances, there was an impermissibly suggestive identification procedure used which caused a very substantial likelihood of irreparable misidentification. Robinson v. Smith, 624 F.2d 54 (6th Cir. 1980). The central focus is on the reliability of the identification. Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 2253, 53 L.Ed.2d 140 (1977). Reliability is tested by considering the following factors: (1) the opportunity of the witnesses to view the criminal; (2) the witnesses’ degree of attention; (3) the accuracy of the witnesses’ pri- or descriptions; (4) the witnesses’ level of certainty; and (5) the length of time between the first view of the criminal and the subsequent identification. Neil v. Biggers, 409 U.S. 188, 199-200, 93 S.Ct. 375, 382, 34 L.Ed.2d 401 (1972). The district court applied the proper standard and found that the identifications made by Tramble and Melton were sufficiently reliable to present an issue for the jury. We find that the district court’s findings are not clearly erroneous. Both Tramble and Melton had excellent opportunities to view the criminal. Tramble waited on him in a well-lit restaurant and spoke with him. Melton did not speak with the criminal but he had a prolonged opportunity to view him in daylight. Tramble could also be expected to have paid more attention to the criminal than he would have to the usual customer. Tramble testified that he paid more attention to him because of his discussion with him" }, { "docid": "3128128", "title": "", "text": "could not talk to one another along the way. Wagner viewed Sleet for approximately thirty seconds from a distance of ten to fifteen yards and then identified him as the man he had chased through the apartment complex. The district court denied Sleet’s motion to suppress the identification testimony of all three witnesses, finding that Sleet had failed to establish that either the second photo array shown to Carr and Schmitz or the individual showup for Wagner was unnecessarily suggestive. (R. 19.) We agree that the testimony of these witnesses should not have been suppressed. In considering the admissibility of challenged identification testimony, we utilize the following two-part test: “The defendant must first establish that the identification procedure was unnecessarily suggestive. If the defendant satisfies this burden, the court considers whether, viewed under the totality of the circumstances, the identification is reliable despite the suggestive procedure.” United States v. Donaldson, 978 F.2d 381, 385 (7th Cir.1992); see also Manson v. Brathwaite, 432 U.S. 98, 107-14, 97 S.Ct. 2243, 2249-53, 53 L.Ed.2d 140 (1977); Kubat v. Thieret, 867 F.2d 351, 357 (7th Cir.), cert. denied, 493 U.S. 874, 110 S.Ct. 206, 107 L.Ed.2d 159 (1989). “The primary evil to be avoided,” according to the Supreme Court, “is a very substantial likelihood of irreparable misidentifieation.” Neil v. Biggers, 409 U.S. 188, 198, 93 S.Ct. 375, 381-82, 34 L.Ed.2d 401 (1972); see also United States v. Clark, 989 F.2d 1490, 1495 (7th Cir.1993). If a defendant fails to show that a photo display was unnecessarily suggestive, however, we need not consider whether the identification was otherwise reliable. Donaldson, 978 F.2d at 387; United States v. Johnson, 859 F.2d 1289, 1294 (7th Cir.1988). The district court found that the second photo array shown to Carr and Schmitz was not unnecessarily suggestive, and the court thus did not consider whether the challenged identifications were otherwise reliable. Although Sleet has continued to press the identification issue in this appeal, he has focused on the reliability of the challenged testimony and has failed to address how the photo array was in any way suggestive. Indeed, his counsel" }, { "docid": "22427284", "title": "", "text": "detective’s comment and the fact that Wong was taller than the other participants (by six to eight inches, according to the police detective’s estimate) rendered the standing lineup unduly suggestive. (Wong does not challenge the fairness of either the photo arrays or the sitting lineup.) Wong notes that Huang testified at trial that she had never seen a photograph of him before picking him out of the standing lineup, although she had in fact done so when shown the photo arrays. Wong argues that Huang’s hesitance in identifying Wong in the photo array and the seated lineup contrasts starkly with her certainty after the standing lineup, indicating that the second lineup was suggestive and that her identification was not independently reliable. Finally, Wong argues that the length of time between the shooting and the lineup — ten months— weighs heavily against a finding of independent reliability. The Supreme Court has established a two-step inquiry for evaluating the constitutional permissibility of in-court identification testimony based on out-of-court identification procedures. That inquiry “requires a determination of whether the identification process was impermissibly suggestive and, if so, whether it was so suggestive as to raise ‘a very substantial likelihood of irreparable mis-identification.’” Jackson v. Fogg, 589 F.2d 108, 111 (2d Cir.1978) (quoting Neil v. Biggers, 409 U.S. 188, 198, 98 S.Ct. 375, 381-82, 34 L.Ed.2d 401 (1972) (citing Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247 (1968))). If pretrial procedures have been unduly suggestive, a court may nonetheless admit in-court identification testimony if the court determines it to be independently reliable. See Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 2253, 53 L.Ed.2d 140 (1977); Jarrett v. Headley, 802 F.2d 34, 42 (2d Cir.1986). The court should consider the reliability of the identification in light of the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of [the witness’] prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation. Against" }, { "docid": "17212465", "title": "", "text": "however, reversal would not be warranted in light of the reliability of the witnesses’ identifications. 1. Standard of Review When reviewing the admission of a photo array used to identify a defendant, we apply the clear-error standard to factual findings and engage in de novo review of due-process issues. United States v. Sanchez, 24 F.3d 1259, 1262 (10th Cir.1994). When we review a defendant’s challenge to an identification from the photo array, we conduct a two-pronged inquiry. We first determine whether the photo array was unduly suggestive; if it is, we decide whether the identifications were still reliable in view of the totality of the circumstances. See United States v. Wiseman, 172 F.3d 1196, 1208 (10th Cir.1999). Ultimately, we must determine whether the unduly suggestive array created a “substantial likelihood of misidenti-fication.” Neil v. Biggers, 409 U.S. 188, 201, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). If so, the defendant’s due-process rights have been violated. See Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977) (“[R]eliability is the linchpin in determining the admissibility of identification testimony.”). 2. Unduly Suggestive Under the first prong, we consider the number of photographs in the array, the way that the police present the array, and the details of the photographs. See Sanchez, 24 F.3d at 1262. Though we consider the number of photographs in the array, this factor goes to the “weight given to other alleged problems or irregularities in an array”; the number is not itself a substantive factor. Id. (emphasis omitted). After police detectives viewed the Gen X surveillance video, they believed that the robbers were Kepa Maumau and Edward Kamoto. A police detective then created an array of six photographs to show the three Gen X employees who had seen the crime. Two of the three employees identified Mr. Kepa Maumau as the robber; the third was unable to make an identification. During the motion-to-suppress hearing, the Government called the detective who had created the array and shown the array to the employees. In response, Mr. Kepa Maumau called an expert, Dr. David Dodd, to testify" } ]

[ { "docid": "22765891", "title": "", "text": "due process of law by refusing to vacate the sentence imposed at his trial for unlawful dis tribution of heroin. That conclusion, in turn, depends on the Court’s assertion that petitioner was impermissibly denied his state-created right to be sentenced by a jury. Because I believe that the Court either mischaracterizes the right conferred by state law or erroneously assumes a deprivation of that right, I dissent. The Court is undoubtedly correct that Oklahoma law does confer a right to have a sentence imposed by a jury. Okla. Stat., Tit. 22, § 926 (1971). But it is equally true that petitioner was sentenced by a jury. The question is whether that sentence was validly imposed, either as a matter of state or federal law. For if the petitioner was constitutionally sentenced by his jury in the first instance, he has been afforded the process the State guaranteed him. The Oklahoma court found that petitioner was not properly sentenced. If this conclusion rested on an interpretation of state law, or a correct interpretation of federal law, then I would have less difficulty agreeing with the Court that petitioner was entitled to a new jury sentencing under principles of due process. But the Court fails to inquire into the basis of the Oklahoma court’s conclusion that petitioner was improperly sentenced in the first instance. That question is central to the resolution of the due process issue presented by the case. The Court simply assumes that the Oklahoma court found that petitioner had not been sentenced in conformity with state law. This is an assumption, however, that cannot be divined from the available state cases. Those cases in fact strongly indicate that the decision of the state court here rested on an erroneous interpretation of federal law, not state law. If so, the Oklahoma court decision refusing to afford petitioner an opportunity to be resentenced by a jury would be correct, albeit for the wrong reason. The issue in this case, then, is whether petitioner’s original sentence denied him equal protection. The Oklahoma sentencing statute in effect at the time of petitioner’s trial" } ]

[ { "docid": "12676126", "title": "", "text": "jury be accurately informed as to his parole eligibility status, although he did not specifically challenge the Virginia Supreme Court’s determination in Ramdass II that under Virginia law he was not ineligible for parole. Ramdass also claimed that his trial counsel were constitutionally ineffective for, inter alia, failing to investigate and to object to the appointment of Dr. Stanton Samenow as his mental health expert because Dr. Samenow was “notoriously pro-prosecution” and refused to work with the defense. In arguing the ineffective assistance of counsel, Ramdass stated also that he was denied the reasonable assistance of a mental health expert at trial, in violation of both Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985) (holding that in limited circumstances, a criminal defendant has a Fourteenth Amendment right to access to a competent psychiatrist) and Virginia Code § 19.2-264.3:1 (entitling indigent capital defendants to the assistance of a mental health expert). The Virginia Supreme Court dismissed the petition. It ruled that Ramdass’ Simmons claim was barred from review under the rule of Hawks v. Cox, 211 Va. 91, 175 S.E.2d 271 (1970) (holding that an issue previously decided against the petitioner on direct appeal may not again be considered on post-conviction review), and it summarily rejected Ramdass’ ineffective assistance of counsel claim. Seeking habeas relief in the federal courts, Ramdass filed this petition in February 1997, alleging, among other things, unconstitutional error in the trial court’s failure to allow the jury to consider his alleged parole ineligibility. He also claimed that trial counsel were constitutionally ineffective for failing to investigate the views and reputation of Dr. Samenow, for failing to object to his appointment, and for failing to seek alternative mental health testimony. Finally, he alleged that his Fourteenth Amendment right to the assistance of a mental health expert had been violated, either under Ake or by deprivation of a state-created right to such assistance provided in Va.Code Ann. § 19.2-264.3:1. The district court granted Ramdass a writ of habeas corpus based on the Simmons claim, dismissed the remaining claims, and ordered the state trial court" }, { "docid": "4648869", "title": "", "text": "law, however, because “[t]he Court has made clear that its relevant precedents include not only bright-line rules but also the legal principles and standards flowing from precedent.” Gray v. Moore, 520 F.3d 616, 621 (6th Cir.2008); see also Panetti v. Quarterman, 551 U.S. 930, 127 S.Ct. 2842, 168 L.Ed.2d 662 (2007). B. First Ground for Relief 1. Availability of Habeas Relief The magistrate judge found that habeas relief was not available to Pudelski on his first ground for relief because he alleged error in the proceedings related to his motion for new trial, which the magistrate judge considered a post-conviction proceeding. This is a legal determination that is reviewed de novo. Lucas v. O’Dea, 179 F.3d 412, 416 (6th Cir.1999). Pudelski argues, and the State agrees, that the magistrate judge improperly found that the motion for new trial constituted a post-conviction proceeding. Appellant Br. p. 17-19; Appellee Br. p. 23-24. We agree with the parties and have concluded that Pudelski’s motion for new trial was not a post-conviction proceeding, and that his claim in this particular case is reviewable as a habeas claim. The magistrate judge relied on Kirby v. Dutton, 794 F.2d 245 (6th Cir.1986) for the proposition that habeas corpus relief is not available to challenge alleged errors in state post-conviction proceedings. Although Kirby is good Jaw in the Sixth Circuit, in our opinion the magistrate judge misapplied Kirby to the facts of the present case. In Kirby, the petitioner filed a state post-conviction proceeding attempting to overturn his conviction of two counts of assault with intent to commit murder, and pursuant to Tennessee law the state court appointed counsel to represent the petitioner in the post-conviction proceedings. The petitioner’s post-conviction action was dismissed, and on appeal of that decision the petitioner alleged that his appointed counsel had rendered ineffective assistance in the post-conviction proceeding. The Tennessee appellate courts rejected the petitioner’s appeals, and he then filed a petition for a writ of habeas corpus in federal court in the Middle District of Tennessee claiming ineffective assistance of counsel in violation of the Sixth Amendment. The district court" }, { "docid": "23476523", "title": "", "text": "any improper forces made his decision to waive involuntary. To say that a state law error may provide a basis for habeas relief when the error also violates federal constitutional rights states the obvious, but does not apply here. As Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991), attempted to make clear, “ ‘federal habeas corpus relief does not lie for errors of state law.’ ” Ibid. (quoting Lewis v. Jeffers, 497 U.S. 764, 780, 110 S.Ct. 3092, 111 L.Ed.2d 606 (1990)). The proper inquiry is whether federal constitutional rights were violated. We can, of course, look to compliance with prophylactic state procedures designed to safeguard parallel state rights (Ohio’s statute and jurisprudence nowhere mention the federal right to trial by jury), to inform our resolution of the federal question. While Lott’s state-law jurisdictional argument could be said to “implicate” a federal question, the record evidence conclusively demonstrates that his federal rights were not violated. Indeed, Lott has advanced no meaningful argument that his waiver was not knowing, intelligent, and voluntary. The majority’s citation to Norris v. Schotten, 146 F.3d 314, 329 (6th Cir.1998), and its discussion of substantive due process further confuse the issue before us. Norris explained that a state-law error in pre-trial proceedings can deny federal substantive due process when the error renders the defendant’s trial fundamentally unfair. See ibid. (rejecting such a claim with respect to alleged denial of state statutory right to speedy trial because it “ha[d] nothing whatsoever to do with the fairness of the trial itself but rather [went] to the fairness of the petitioner’s extended pretrial detention”). Not only does the alleged error of state law Lott raises “ha[ve] nothing whatsoever to do with the fairness of the trial itself,” it has nothing to do with the fairness of anything. It relates only to an internal regulation of Ohio’s courts. Additionally, determining whether the alleged state-law error so deprived Lott of federal substantive due process does not “necessarily require[ ] our consideration of the merits of his claim.” Even if he were correct and his state-law" }, { "docid": "21214502", "title": "", "text": "including a definition of reasonable doubt in a jury charge when the definition did not include either the fourth or fifth paragraphs of the Geesa instruction which it had criticized in Paulson. 3. AEDPA Review a. Clearly Established Federal Law In the course of petitioner’s state habeas corpus proceeding, the state habeas trial court found the definition of reasonable doubt included in petitioner’s guilt-innocence phase jury charge did not include either of the two objectionable paragraphs from the Geesa instruction which the Texas Court of Criminal Appeals expressly rejected in Paulson and concluded, therefore, as in Woods, there was no abuse of discretion committed by the trial court when it included portions of the Geesa instruction in petitioner’s guilt-innocence phase jury charge. These determinations of state law are binding on this Court in this federal habeas proceeding. See Bradshaw v. Richey, 546 U.S. at -, 126 S.Ct. at 604 (state court interpretations of state law bind a federal court sitting in habeas corpus); Estelle v. McGuire, 502 U.S. at 67-68, 112 S.Ct. at 480 (it is not the province of a federal habeas court to reexamine state-court determinations of state-law questions). Insofar as petitioner argues the state courts misapplied applicable state law in rejecting his analogous ineffective assistance claim during his state habeas corpus proceeding, that argument is foreclosed by well-settled Supreme Court precedent holding violations of state law do not warrant federal habeas relief. See Estelle v. McGuire, 502 U.S. at 67-68, 112 S.Ct. at 480 (holding complaints regarding the admission of evidence under California law did not present grounds for federal habeas relief absent a showing that admission of the evidence in question violated due process); Lewis v. Jeffers, 497 U.S. 764, 780, 110 S.Ct. 3092, 3102, 111 L.Ed.2d 606 (1990)(recognizing that federal habeas relief will not issue for errors of state law); Pulley v. Harris, 465 U.S. 37, 41, 104 S.Ct. 871, 874, 79 L.Ed.2d 29 (1984)(holding a federal court may not issue the writ on the basis of a perceived error of state law). The Supreme Court has implicitly rejected the primary constitutional argument underlying this" }, { "docid": "21214503", "title": "", "text": "is not the province of a federal habeas court to reexamine state-court determinations of state-law questions). Insofar as petitioner argues the state courts misapplied applicable state law in rejecting his analogous ineffective assistance claim during his state habeas corpus proceeding, that argument is foreclosed by well-settled Supreme Court precedent holding violations of state law do not warrant federal habeas relief. See Estelle v. McGuire, 502 U.S. at 67-68, 112 S.Ct. at 480 (holding complaints regarding the admission of evidence under California law did not present grounds for federal habeas relief absent a showing that admission of the evidence in question violated due process); Lewis v. Jeffers, 497 U.S. 764, 780, 110 S.Ct. 3092, 3102, 111 L.Ed.2d 606 (1990)(recognizing that federal habeas relief will not issue for errors of state law); Pulley v. Harris, 465 U.S. 37, 41, 104 S.Ct. 871, 874, 79 L.Ed.2d 29 (1984)(holding a federal court may not issue the writ on the basis of a perceived error of state law). The Supreme Court has implicitly rejected the primary constitutional argument underlying this aspect of petitioner’s multifaceted ineffective assistance claim herein: The beyond a reasonable doubt standard is a requirement of due process, but the Constitution neither prohibits trial courts from defining reasonable doubt nor requires them to do so as a matter of course. Indeed, so long as the court instructs the jury on the necessity that the defendant’s guilt be proved beyond a reasonable doubt, the Constitution does not require that any particular form of words be used in advising the jury of the government’s burden of proof. Rather, “taken as a whole, the instructions must correctly convey the concept of reasonable doubt to the jury.” Victor v. Nebraska, 511 U.S. 1, 5, 114 S.Ct. 1239, 1243, 127 L.Ed.2d 583 (1994)(aia-tions omitted). It is thus clear, contrary to petitioner’s argument suggesting no definition of “reasonable doubt” should have been given during his trial, that the mere fact the state trial court attempted to define “reasonable doubt” in the jury instructions given during the guilt-innocence phase of petitioner’s capital trial did not implicate any of petitioner’s federally-protected" }, { "docid": "10830963", "title": "", "text": "relief. It is not disputed that Oklahoma would bar consideration of this precise claim on an independent and adequate state law procedural ground if Clayton presented it in a second post-conviction application. Again, Clayton does not assert cause and prejudice in an effort to overcome this procedural bar. Ake claim Clayton argues the State deprived him of due process by denying his request for expert psychiatric assistance at the penalty phase of his trial. Before trial, Clayton’s counsel filed a motion for appointment of a private psychiatrist. Counsel stated that, based on conversations with various family members, he questioned defendant’s sanity at the time of the alleged crime. After arguments, the court found the defendant failed to demonstrate that his sanity at the time of the offense was a significant factor at trial, as required by Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985). In Ake, the Supreme Court held that “when a defendant has made a preliminary showing that his sanity at the time of the offense is likely to be a significant factor at trial, the Constitution requires that a State provide access to a psychiatrist’s assistance on this issue if the defendant cannot otherwise afford one.” Id. at 74, 105 S.Ct. 1087. To demonstrate a denial of due process under Ake at the penalty phase, a petitioner must establish both that the state presented evidence in the sentencing phase that petitioner posed a continuing threat to society and that petitioner’s mental condition was likely to be a significant mitigating factor. Rogers, 173 F.3d at 1285. Clayton presented this issue for the first time in his post-conviction application. The Oklahoma Court of Criminal Appeals ruled he had waived the issue by failing to raise it on direct appeal. Because this ruling was based on an independent and adequate state law ground, we may not consider the claim on federal ha-beas review unless Clayton can “demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law.” See Ross v. Ward, 165 F.3d 793, 798 (10th Cir.1999). In" }, { "docid": "15269800", "title": "", "text": "Assistance In his first and second grounds for federal habeas relief before the district court, Petitioner argued that the trial court’s denial of his motions for expert assistance deprived the jury of relevant information concerning his mental history and possible organic brain damage in violation of his due process rights. The district court found no due process violation because the state court adhered to the mandate of Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), by appointing a neutral psychological expert. For the reasons set forth below, we find constitutionally harmless any error that may have occurred at the guilt phase of Petitioner’s trial; however, we find that the error with respect to the penalty phase of Petitioner’s trial mandates reversal as it violated Petitioner’s due process rights. 1. Constitutional Requirements In Ake v. Oklahoma, 470 U.S. 68, 83, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), the Supreme Court held that the Due Process Clause of the Fourteenth Amendment obligates states to provide an indigent defendant with access to psychiatric examination and assistance when the defendant has made a preliminary showing that his sanity at the time of the offense is likely to be a significant factor at trial. The Court explained that once this preliminary showing is made, the states must at a minimum, assure the defendant access to a competent psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense. This is not to say, of course, that the indigent defendant has a constitutional right to choose a psychiatrist of his personal liking or to receive funds to hire his own. Our concern is that the indigent defendant have access to a competent psychiatrist for the purpose we have discussed, and as in the case of the provision of counsel we leave to the State the decision on how to implement this right. Id. Ake also held that when appropriate, the right to expert assistance extends to the sentencing phase of capital proceedings. Id. at 86, 105 S.Ct. 1087. The Court instructed that a defendant’s interest" }, { "docid": "21706223", "title": "", "text": "erroneously granting the prosecution’s challenges for cause, and erroneously denying defense counsel’s challenges for cause. B. State Court Disposition Petitioner presented a series of complaints about the state trial court’s rulings on these same challenges for cause during his direct appeal. As respondent correctly points out, however, all of these challenges were premised entirely upon state law principles. The Texas Court of Criminal Appeals rejected each of these points of error on the merits. In the course of his state habeas corpus proceeding, petitioner re-represented these same state law complaints in the same format as in his direct appeal but substituted the term “Sixth, Amendment” for the “United States Constitution.” The state habeas trial court concluded these claims had already been resolved during petitioner’s direct appeal and could not be re-litigated in petitioner’s state ha-beas corpus proceeding or, alternatively, these complaints could have been presented during petitioner’s direct appeal and, therefore, were procedurally barred from state habeas review. C. AEDPA Review 1. Federal Habeas Relief Does Not Lie for State Law Errors Insofar as petitioner complains the Texas Court of Criminal Appeals erroneously applied state law principles in rejecting his complaints about the trial court’s rulings on various challenges for cause, his arguments do not furnish a basis for federal habeas relief. Federal habeas corpus relief will not issue to correct errors of state constitutional, statutory, or procedural law, unless a federal issue is also presented. See Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991) (holding complaints regarding the admission of evidence under California law did not present grounds for federal habeas relief absent a showing that admission of the evidence in question violated due process); Lewis v. Jeffers, 497 U.S. 764, 780, 110 S.Ct. 3092, 111 L.Ed.2d 606 (1990) (recognizing that federal habeas relief will not issue for errors of state law); Pulley v. Harris, 465 U.S. 37, 41, 104 S.Ct. 871, 79 L.Ed.2d 29 (1984) (holding a federal court may not issue the writ on the basis of a perceived error of state law). In the course of reviewing state criminal convictions" }, { "docid": "9935793", "title": "", "text": "included a motion to reappoint counsel to represent him and a statement authorizing appointed counsel to file a petition for rehearing. The court reappointed Peterson and Ellison to represent petitioner. On May 22, counsel filed a motion to reinstate Hoffman's habeas petition. At the evidentiary hearing on the motion to reconsider, Dr. Craig W. Beaver, the court-appointed psychiatrist, testified that petitioner suffered from a mental defect because of his low IQ and had “a mental disease or disorder” because of significant depression. On June 1, the court granted petitioner’s motion to reinstate the habeas petition. .The Supreme Court has recognized that ineffective assistance of counsel claims, unlike most claims alleging error at trial and sentencing, are best presented for the first time in collateral proceedings when the defendant is represented by new counsel, rather than on direct appeal, when the defendant is often represented by trial counsel. See Kimmelman v. Morrison, 477 U.S. 365, 378, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986) (\"Indeed, an accused will often not realize that he has a meritorious ineffectiveness claim until he begins collateral proceedings, particularly if he retained trial counsel on direct appeal.”). . Idaho Code § 19-2719(3) (West 2000). . The Idaho Supreme Court has upheld the constitutionality of the statute's 42 day filing requirement. See State v. Rhoades, 120 Idaho 795, 820 P.2d 665, 676 (1991), cert. denied, 504 U.S. 987, 112 S.Ct. 2970, 119 L.Ed.2d 590 (1992). . Idaho Code § 19-2719 (West 2000). . Idaho Code § 19-2719(3). The relevant portions of the statute are set forth below: 19-2719: Special appellate and post-conviction procedure for capital cáses — Automatic stay. The following special procedures shall be interpreted to accomplish the purpose of eliminating unnecessary delay in carrying out a valid death sentence. (1) When the punishment of death is imposed the time for filing an appeal shall begin to run when the death warrant is filed. (2) The death warrant shall not be filed until forty-two (42) days after the judgment imposing the death sentence has been filed, or, in the event a post-conviction challenge to the conviction or" }, { "docid": "15269799", "title": "", "text": "a COA may issue only upon a “substantial. showing of the denial of a constitutional right.” In addition, § 2253(c) requires the COA to “indicate which specific issue or issues satisfy the showing required.” Thus, a petitioner may generally raise on appeal only those specific issues for which the district court granted a certificate of appealability. Pri- or to the Supreme Court’s decision in Slack, the district court issued a certificate of probable cause and not a COA. The district court issued a blanket certificate of probable cause which, under pre-AEDPA standards, would have entitled Petitioner to seek review of all issues decided by the district court. However, we need not remand for issuance of a certificate of appealability because only a few issues merit our discussion. The district court’s explicit findings regarding the issues of organic brain damage and the effectiveness of Petitioner’s counsel raised substantial questions regarding the possible denial of constitutional protections. Those issues are therefore properly before us on appeal. See Skaggs, 235 F.3d at 266. III. DISCUSSION A. Expert Psychological Assistance In his first and second grounds for federal habeas relief before the district court, Petitioner argued that the trial court’s denial of his motions for expert assistance deprived the jury of relevant information concerning his mental history and possible organic brain damage in violation of his due process rights. The district court found no due process violation because the state court adhered to the mandate of Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), by appointing a neutral psychological expert. For the reasons set forth below, we find constitutionally harmless any error that may have occurred at the guilt phase of Petitioner’s trial; however, we find that the error with respect to the penalty phase of Petitioner’s trial mandates reversal as it violated Petitioner’s due process rights. 1. Constitutional Requirements In Ake v. Oklahoma, 470 U.S. 68, 83, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), the Supreme Court held that the Due Process Clause of the Fourteenth Amendment obligates states to provide an indigent defendant with access to psychiatric" }, { "docid": "13128671", "title": "", "text": "Civ.A.7:01CV95 (HL), 2005 WL 2877690 (M.D.Ga. Oct. 31, 2005). We address only the two claims for which the district court issued a COA. II. Denial of the Use of Expert Mental Health Testimony Lynd argues that he was deprived of his right to the assistance of necessary and competent mental health experts, and that the trial court’s exclusion of available mental health testimony from his competency trial and from both phases of his capital trial violated his Fifth, Sixth, Eighth, and Fourteenth Amendment rights under the United States Constitution. The district court treated this claim as asserting two separate grounds for relief. We address each ground in turn. First, Lynd argues that he was deprived of his right to the assistance of necessary and competent experts in violation of Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985). In Ake, the Supreme Court held that “when a defendant demonstrates ... that his sanity at the time of the offense is to be a significant factor at trial, the State must, at a minimum, assure the defendant access to a competent psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense.” Id. at 83, 105 S.Ct. 1087; see also Conklin v. Schofield, 366 F.3d 1191, 1206 (11th Cir.2004) (setting forth elements of an Ake claim). Lynd’s counsel requested and received the appointment of an expert witness. Ultimately, for reasons discussed below, the trial court excluded the expert’s testimony. Lynd argues that this exclusion constituted a de facto denial of his request for expert assistance, and that such denial rendered the trial fundamentally unfair. We may not consider the merits of this argument here because Lynd failed to raise it on direct appeal in the state courts. The first time Lynd raised his Ake claim was in his state habeas petition. Under Georgia law, a petitioner’s “failure to ... pursue [an issue] on appeal ordinarily will preclude review by writ of habeas corpus,” unless the petitioner can show either “adequate cause” for his failure to pursue the issue and “actual prejudice,”" }, { "docid": "22470228", "title": "", "text": "the contention is correct and the Oklahoma court mistakenly construed the statute, the error is one of state law not cognizable in habeas corpus because “federal habeas corpus relief does not lie for errors of state law.” Lewis v. Jeffers, 497 U.S. 764, 780, 110 S.Ct. 3092, 3102, 111 L.Ed.2d 606 (1990); Matthews v. Price, 83 F.3d 328, 331 (10th Cir.1996); Steele v. Young, 11 F.3d 1518, 1524 (10th Cir.1993). Although Petitioner indeed finds himself in a judicially created “Catch 22,” the dilemma is not one we can reach through the limited access provided by our jurisdiction. Petitioner is further hampered by the fact no constitutional provision requires a state to grant post-conviction review. Pennsylvania v. Finley, 481 U.S. 551, 557, 107 S.Ct. 1990, 1994, 95 L.Ed.2d 539 (1987). Moreover, because the constitutional error he raises focuses only on the State’s post-conviction remedy and not the judgment which provides the basis for his incarceration, it states no cognizable federal habeas claim. Montgomery v. Meloy, 90 F.3d 1200 (7th Cir.1996); Steele, 11 F.3d at 1524; Hopkinson, 866 F.2d at 1218-19. Thus, although Petitioner has presented substantial credible evidence that now and at the time of his trial he suffers from a mental illness that may have bearing upon his factual innocence of the crimes for which he stands convicted, he does not cross the threshold barrier to federal habeas corpus. Even if the constitutional basis of his claim had affected the jury’s verdict thereby permitting him to escape the barrier presented by a collateral attack, we could not say he has satisfied the high burden of showing no reasonable juror would convict him on the basis of the evidence he has presented. C. The nature of his newly discovered evidence, in the form of affidavits, already has been called into question. “In the new trial context, motions based solely upon affidavits are disfavored because the affiants’ statements are obtained without the benefit of cross-examination and an opportunity to make credibility determinations.” Herrera, 506 U.S. at 417, 113 S.Ct. at 869. Although the evidence presented in the affidavits of the psychiatric experts" }, { "docid": "83948", "title": "", "text": "errors that do not rise to the federal constitutional dimension has presented nothing to cumulate.”)) certificate of appealability denied, 157 F.3d 380 (5th Cir.1998), cert. denied, 525 U.S. 1131, 119 S.Ct. 922, 142 L.Ed.2d 971 (1999). VIII. Defects in State Habeas Corpus Proceedings A. The Claims Petitioner argues in his thirteenth and fourteenth claims in his amended federal habeas petition that the Texas habeas corpus statute (1) has been retroactively applied in an arbitrary and capricious fashion in violation of equal protection and ex post facto principles because a separate statute (Tex.CodeCrim.Proc'Article 11.071) applicable to criminal defendants convicted of capital murder and sentenced to death which statute has been applied retroactively while amendments to the more generic Texas habeas corpus statute (Article 11.07) apply prospectively only and (2) violates due process principles because its state abuse-of-the-writ provisions have been applied retroactively to certain litigants, thereby improperly limiting their “fundamental right” to pursue state habeas corpus remedies in successive state habeas applications. B. State Court Disposition Petitioner presented a pair of similar claims to the state habeas court in his second state habeas corpus application. The state habeas trial court rejected both claims on the merits, concluding that even if petitioner’s constitutional claims had any merit, petitioner’s arguments did not warrant state habeas relief because they did not attack the underlying validity of petitioner’s conviction or sentence. The Texas Court of Criminal Appeals adopted the state habeas trial court’s findings and conclusions. Ex parte Moore, App. No. 40,046-02 (Tex.Crim.App. May 14, 2003). C.AEDPA Review Petitioner has identified no Supreme Court precedent, no Fifth Circuit precedent, and no precedent from this Court holding that a procedural defect (even of a constitutional dimension) occurring during a state habeas corpus proceeding gives rise to a claim for federal habeas corpus relief. This Court’s independent review of applicable case law located no such authority. The reason for the dearth of Fifth Circuit and federal District Court case law supporting petitioner’s thirteenth and fourteenth claims herein is the fact few principles have been more consistently applied in this Circuit than the well-settled rule that complaints about" }, { "docid": "21099350", "title": "", "text": "fair opportunity to seek relief in state court’ ”), cert. denied, — U.S. -, 117 S.Ct. 500, 136 L.Ed.2d 391 (1996). For that reason, the petitioner’s claims, D and E, alleging ineffective assistance at trial and sentencing are procedurally defaulted under an independent and adequate state law ground. In claim F the petitioner alleges that he “did not receive effective assistance of counsel on appeal and during the statutory post-conviction relief process.” Final Pet. at 20-21. Because § 19-2719 imposes time limits only on claims alleging error at trial and sentencing, the petitioner’s claim alleging ineffective assistance of counsel on appeal and during the post-conviction proceeding arguably is not barred by that statute. The court need not decide this issue, however, because with one exception the grounds supporting claim F all allege error that is attributable to post-conviction counsel only. It is well settled that the petitioner has no constitutional right to effective assistance of counsel during a state post-conviction proceeding. See, e.g., Moran v. McDaniel, 80 F.3d 1261, 1271 (9th Cir.1996). The one error that is attributable to appellate counsel is based on counsel’s alleged failure to “raise on appeal the question of whether the trial court’s refusal to allow [trial counsel] to be present during the presentence investigation interview was a denial of [petitioner’s] right to counsel.” Final Pet. at 21. As discussed above under the court’s analysis of claim C, the error associated with the exclusion of counsel from the presentence interview has been “implicitly” considered by the Idaho Supreme Court pursuant to its mandatory review obligation under Idaho Code § 19-2827. See Beam, 3 F.3d at 1306-07. Thus, the petitioner could not have been prejudiced by appellate counsel’s failure to explicitly present the claim to the state supreme court. Because claim F alleges errors that do not amount to a violation of the petitioner’s constitutional rights, the claim is not cognizable in the federal habeas action. E. Cause and Prejudice Exception Where the state’s procedural bar is supported by an independent and adequate state law ground, the petitioner may still obtain habeas review of his defaulted" }, { "docid": "83873", "title": "", "text": "reference to the federal constitution, tacked onto the end of a lengthy, purely state-law evidentiary argument, does not sufficiently alert and afford a state court the opportunity to address an alleged violation of federal rights. Moreover, to hold that vague references to such expansive concepts as due process and fair trial fairly present, and therefore exhaust, federal claims is to eviscerate the exhaustion requirement. Wilder v. Cockrell, 274 F.3d at 260. Petitioner’s cryptic reference to the Fourteenth Amendment in his second state habeas corpus application did not “fairly present” the Texas Court of criminal Appeals with the same federal due process arguments petitioner presents to this Court. Wilder v. Cockrell, 274 F.3d at 260. Thus, respondent correctly argues petitioner has failed to exhaust available state remedies on the federal aspect of petitioner’s third claim for federal habeas relief in this cause. Thus, for the reasons set forth at length in Section III.C. above, petitioner has procedurally defaulted on the unexhausted federal aspect of his third claim. D. Complaints of State Law Violations Furnish No Basis for Federal Habeas Relief Insofar as petitioner argues the state trial court erroneously applied the Texas Rules of Evidence in excluding the testimony of Barbara Boyd regarding Samuel Boyd’s criminal record and reputation for violence, petitioner’s arguments do not furnish a basis for federal habeas corpus relief. Federal habeas corpus relief will not issue to correct errors of state constitutional, statutory, or procedural law, unless a federal issue is also presented. See Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475, 480, 116 L.Ed.2d 385 (1991)(holding complaints regarding the admission of evidence under California law did not present grounds for federal habeas relief absent a showing that admission of the evidence in question violated due process); Lewis v. Jeffers, 497 U.S. 764, 780, 110 S.Ct. 3092, 3102, 111 L.Ed.2d 606 (1990)(recognizing that federal habeas relief will not issue for errors of state law); Pulley v. Harris, 465 U.S. 37, 41, 104 S.Ct. 871, 874, 79 L.Ed.2d 29 (1984) (holding a federal court may not issue the writ on the basis of a perceived error" }, { "docid": "9935753", "title": "", "text": "Court affirmed Hoffman’s death sentence and the state trial court’s denial of his post-conviction petition. See Hoffman, 851 P.2d at 944, cert. denied, Hoffman v. Idaho, 511 U.S. 1012, 114 S.Ct. 1387, 128 L.Ed.2d 61 (1994). Hoffman, represented by newly appointed counsel, Charles Peterson (“Peterson”) and Ellison Matthews (“Matthews”), filed a second petition for post-conviction relief in the state district court on July 7, 1995. The petition alleged fourteen grounds for relief, including three claims asserting that petitioner had been denied the effective assistance of counsel at trial, sentencing, and on direct appeal. The state moved to dismiss the petition, asserting that the fourteen claims were procedurally defaulted because Idaho Code § 19-2719 mandates the filing of all post-conviction claims within forty-two days of the entry of judgment. The state district court denied relief on May 20,1996. Hoffman’s attorneys appealed the dismissal of the second petition to the Idaho Supreme Court. The state filed a motion to dismiss, in which it renewed its argument that the claims were procedurally defaulted. On December 6, 1996, the Idaho Supreme Court issued a brief, unexplained ruling granting the state’s motion. See Hoffman, 973 F.Supp. at 1164. On April 2, 1996, Hoffman’s counsel filed a federal habeas petition in the United States District Court for the District of Idaho asserting, inter alia, that: Idaho Code § 19-2719 deprived petitioner of his constitutional right to due process and equal protection; counsel’s performance at trial, sentencing, and on appeal was deficient and prejudicial in violation of petitioner’s Sixth Amendments rights; petitioner’s ineffective assistance of counsel claims were not proeedurally barred; the trial court’s refusal to allow petitioner to have counsel present for the presentenee interview conducted by the probation officer violated his Fifth, Sixth, Eighth, and Fourteenth Amendment rights; and the “heinous, atrocious and cruel” aggravating factor listed under Idaho Code § 19-2515(h)(5) was unconstitutionally vague. See Hoffman, 973 F.Supp. at 1152. The District Court of Idaho issued two opinions concerning Hoffman’s habeas petition. In the first opinion, issued on June 13, 1997, the court dismissed with prejudice some of Hoffman’s claims for relief, including his" }, { "docid": "83874", "title": "", "text": "for Federal Habeas Relief Insofar as petitioner argues the state trial court erroneously applied the Texas Rules of Evidence in excluding the testimony of Barbara Boyd regarding Samuel Boyd’s criminal record and reputation for violence, petitioner’s arguments do not furnish a basis for federal habeas corpus relief. Federal habeas corpus relief will not issue to correct errors of state constitutional, statutory, or procedural law, unless a federal issue is also presented. See Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475, 480, 116 L.Ed.2d 385 (1991)(holding complaints regarding the admission of evidence under California law did not present grounds for federal habeas relief absent a showing that admission of the evidence in question violated due process); Lewis v. Jeffers, 497 U.S. 764, 780, 110 S.Ct. 3092, 3102, 111 L.Ed.2d 606 (1990)(recognizing that federal habeas relief will not issue for errors of state law); Pulley v. Harris, 465 U.S. 37, 41, 104 S.Ct. 871, 874, 79 L.Ed.2d 29 (1984) (holding a federal court may not issue the writ on the basis of a perceived error of state law). In the course of reviewing state criminal convictions in federal habeas corpus proceedings, a federal court does not sit as a super-state appellate court. Estelle v. McGuire, 502 U.S. at 67-68, 112 S.Ct. at 480; Lewis v. Jeffers, 497 U.S. at 780, 110 S.Ct. at 3102; Pulley v. Harris, 465 U.S. at 41, 104 S.Ct. at 874. When a federal district court reviews a state prisoner’s habeas petition pursuant to 28 U.S.C. § 2254 it must decide whether the petitioner is “in custody in violation of the Constitution or laws or treaties of the United States.” The court does not review a judgment, but the lawfulness of the petitioner’s custody simpliciter. Coleman v. Thompson, 501 U.S. at 780, 111 S.Ct. at 2554. A federal court may grant habeas relief based on an erroneous state court evidentiary ruling only if the ruling violates a specific federal constitutional right or is so egregious it renders the petitioner’s trial fundamentally unfair. Brown v. Dretke, 419 F.3d 365, 376 (5th Cir.2005), cert. denied, 546 U.S. 1217," }, { "docid": "21706224", "title": "", "text": "complains the Texas Court of Criminal Appeals erroneously applied state law principles in rejecting his complaints about the trial court’s rulings on various challenges for cause, his arguments do not furnish a basis for federal habeas relief. Federal habeas corpus relief will not issue to correct errors of state constitutional, statutory, or procedural law, unless a federal issue is also presented. See Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991) (holding complaints regarding the admission of evidence under California law did not present grounds for federal habeas relief absent a showing that admission of the evidence in question violated due process); Lewis v. Jeffers, 497 U.S. 764, 780, 110 S.Ct. 3092, 111 L.Ed.2d 606 (1990) (recognizing that federal habeas relief will not issue for errors of state law); Pulley v. Harris, 465 U.S. 37, 41, 104 S.Ct. 871, 79 L.Ed.2d 29 (1984) (holding a federal court may not issue the writ on the basis of a perceived error of state law). In the course of reviewing state criminal convictions in federal habeas corpus proceedings, a federal court does not sit as a super-state appellate court. Estelle v. McGuire, 502 U.S. at 67-68, 112 S.Ct. 475; Lewis v. Jeffers, 497 U.S. at 780, 110 S.Ct. 3092; Pulley v. Harris, 465 U.S. at 41, 104 S.Ct. 871. When a federal district court reviews a state prisoner’s habeas petition pursuant to 28 U.S.C. § 2254 it must decide whether the petitioner is “in custody in violation of the Constitution or laws or treaties of the United States.” The court does not review a judgment, but the lawfulness of the petitioner’s custody simpliciter. Coleman v. Thompson, 501 U.S. 722, 730, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). A federal court may grant habeas relief based on an erroneous state court eviden-tiary ruling only if the ruling violates a specific federal constitutional right or is so egregious it renders the petitioner’s trial fundamentally unfair. Brown v. Dretke, 419 F.3d 365, 376 (5th Cir.2005), cert. denied, 546 U.S. 1217, 126 S.Ct. 1434, 164 L.Ed.2d 137 (2006); Wilkerson v. Cain, 233" }, { "docid": "7017417", "title": "", "text": "to be incapable of knowing right from wrong or to restrain himself from doing a certain act.”); id. (“The trial judge again denied the motion and found Petitioner competent to stand trial.”); id. at 286 (\"Dr. Tanley’s after-the-fact post-conviction testimony does nothing to change the harmlessness of the trial court's error because the fact that one has difficulty conforming his conduct to the requirements of the law ‘is not enough to prove insanity;’ one must demonstrate the lack of capacity to do so.”). In any event, although relevant here (because this case is also pre-AEDPA), the Powell panel’s \"holding” is of limited precedential value because the habeas petition in that case was filed prior to the AEDPA. Under the AEDPA, the federal constitutional right must have been clearly established at the time of the state court decision. As the panel’s opinion acknowledges, Ake did not hold that due process requires the State to provide an independent psychiatrist, merely a competent one. The panel’s “holding” is an extension of Ake. See Powell, 328 F.3d at 284, 2003 WL 21012621 (\"Today, we join those circuits that have held that an indigent criminal defendant’s constitutional right to psychiatric assistance in preparing an insanity defense is not satisfied by court appointment of a ‘neutral’ psychiatrist[.]” (Emphasis added.)). State courts obviously cannot, therefore, violate the AEDPA by holding that Ake merely requires a competent psychiatrist, and not an independent one. . Although the district court did not discuss the car, Smith offers no argument as to why this evidence is material. COLE, Circuit Judge, concurring in part and dissenting in part. I concur only in the result reached by the majority denying each of the asserted grounds for habeas relief, with the exception of Smith’s claim that the trial court’s refusal to provide him with a defense psychiatric expert, as opposed to a neutral psychiatric expert, violated Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985). Because I believe that the trial court failed to provide Smith with a mental health expert for the defense as required by Ake, and as" }, { "docid": "22470227", "title": "", "text": "that evidence been produced at trial.” Id. Thus, the rule by which this case must be governed has several dimensions. First, the claim of innocence grounded in MPD itself is not a basis for federal habeas corpus no matter how convincing the evidence. Second, the claim of innocence is merely the means by which an otherwise barred constitutional error affecting the fairness of the petitioner’s trial can be heard. Third, to allow a habeas court to reach that constitutional error, the claim of innocence must be of the magnitude that we can say no reasonable juror would have convicted Sean Sellers had it been presented at trial. These are very high barriers to Petitioner’s success. The first hurdle Petitioner must overcome is that his principal constitutional argument does not revolve about trial error but about matters that occurred subsequently. He maintains the Sellers II court mistakenly barred him from airing his evidence of MPD because of its erroneous interpretation of an Oklahoma statute relating to post-conviction review. See Okla. Stat. tit. 22, § 1086. Assuming the contention is correct and the Oklahoma court mistakenly construed the statute, the error is one of state law not cognizable in habeas corpus because “federal habeas corpus relief does not lie for errors of state law.” Lewis v. Jeffers, 497 U.S. 764, 780, 110 S.Ct. 3092, 3102, 111 L.Ed.2d 606 (1990); Matthews v. Price, 83 F.3d 328, 331 (10th Cir.1996); Steele v. Young, 11 F.3d 1518, 1524 (10th Cir.1993). Although Petitioner indeed finds himself in a judicially created “Catch 22,” the dilemma is not one we can reach through the limited access provided by our jurisdiction. Petitioner is further hampered by the fact no constitutional provision requires a state to grant post-conviction review. Pennsylvania v. Finley, 481 U.S. 551, 557, 107 S.Ct. 1990, 1994, 95 L.Ed.2d 539 (1987). Moreover, because the constitutional error he raises focuses only on the State’s post-conviction remedy and not the judgment which provides the basis for his incarceration, it states no cognizable federal habeas claim. Montgomery v. Meloy, 90 F.3d 1200 (7th Cir.1996); Steele, 11 F.3d at 1524; Hopkinson," } ]

[ { "docid": "14226819", "title": "", "text": "under the name “Triumph”; that' they had attempted and failed to get plaintiff’s permission to use “Triumph” in the United States as early as 1954; that they had now commenced to sell their goods, through substantially the same retail channels, to the same class of purchasers served by the plaintiff. He also found, however, that “[t]he products purveyed by plaintiff and defendants are entirely different. The products purveyed by plaintiff’s affiliate [Danskin] would seem to overlap to only a slight extent, if at all.” And since “defendants’ merchandise appears to be, at the very least, of as high a quality as plaintiff’s,” they would not be riding on any “superior reputation” of the “related though noncompetitive product.” 187 F.Supp. 169, 171 (S.D.N.Y.1960). Thus neither of the “two legitimate interests” of a senior user — (1) possible expansion into the related field, and (2) stain and tarnishment to his reputation — would be infringed. And 'the defendants, he found, were “innocent” junior users within the meaning of Avon Shoe Co., Inc. v. David Crystal, Inc., 279 F.2d 607 (2d Cir. 1960), cert. denied 364 U.S. 909, 81 S.Ct. 271, 5 L.Ed.2d 224. Accordingly, he denied the plaintiff’s motion for a preliminary injunction. Five months later, plaintiff renewed its motion for a preliminary injunction on the ground of newly-discovered evidence. Judge Cashin’s original finding of “innocence” had rested, at least in part, on his belief that “Triumph” had been part of the German parent’s name for many years. The plaintiff’s new evidence was to the effect that, although the parent German company had marketed under the trade-mark “Triumph” for the period claimed, its adoption as a corpo rate name was of recent origin, and that the Patent Office, before distribution in the United States had begun, had refused an application for registration of “Triumph of Europe” as a trade name. Finding that these additional facts “strip[s] them [i. e., the defendants] of the cloak of innocence,” 191 F.Supp. 937 (S.D.N.Y.1961), and finding further that there was a likelihood of confusion of source between the parties’ goods, Judge Cashin reversed his earlier ruling" } ]

[ { "docid": "15603633", "title": "", "text": "or approval of his or her goods, services, or commercial activities by another person ... shall be liable in a civil action.” 15 U.S.C. § 1125(a). This section protects unregistered trademarks from infringement. Louis Vuitton Malletier v. Dooney & Bourke, Inc., 454 F.3d 108, 114 (2d Cir.2006). Infringement claims are analyzed under a two-prong test that requires a plaintiff to demonstrate first that its mark is protectable and second that “the defen dant’s use of its own mark will likely cause confusion with plaintiffs mark.” Gruner + Jahr USA Publ’g v. Meredith Corp., 991 F.2d 1072, 1074 (2d Cir.1993); Banff, Ltd. v. Federated Dep’t Stores, Inc., 841 F.2d 486, 489 (2d Cir.1988). These elements apply equally to claims for false designation of origin and unfair competition. See Momentum Luggage & Leisure Bags v. Jansport, Inc., No. 00 Civ. 7909, 2001 WL 830667, at *11 n. 19, 2001 U.S. Dist. LEXIS 10253, at *37 n. 19 (S.D.N.Y. July 23, 2001) (collecting cases). For the purposes of its motion for summary judgment, Amex concedes that O’Keefe has demonstrated the first element by showing that “My Card. My Work.” is a protectable mark. (Defs.’ Mem. in Support of Defs.’ Mot. for Summary Judgment (“Defs.’ S.J. Mem.”) at 23 n. 8.) Therefore, the sole issue for decision is whether a reasonable finder of fact could find that Amex’s use of “My Life. My Card.” was likely to cause confusion. To establish a likelihood of confusion, a plaintiff must show that “numerous ordinary prudent purchasers are likely to be misled or confused as to the source of the product in question because of the entrance in the marketplace of defendant’s mark.” Gruner + Jahr, 991 F.2d at 1077. In addition, under the “reverse confusion” theory, a claim will lie where a defendant that has greater exposure in the marketplace uses a mark similar to plaintiffs that “cause[s plaintiffs] potential customers to assume that [the defendant] was the source of [the plaintiffs] mark and thus believe that [the plaintiff] was the infringer.” W.W.W. Pharm. Co. v. Gillette Co., 984 F.2d 567, 571 (2d Cir.1993). “The reverse" }, { "docid": "22117907", "title": "", "text": "most of plaintiff’s claims. With no likelihood of confusion, there can be no trademark infringement, 15 U.S.C. § 1114(1). Since there is no likelihood of confusing defendants’ goods with those of plaintiff’s, the false designation of origin claim also falls. 15 U.S.C. § 1125; Boston Professional Hockey Ass’n, Inc. v. Dallas Cap and Emblem Mfg. Co., Inc., 510 F.2d 1004 (5th Cir.), cert. denied, 423 U.S. 868, 96 S.Ct. 132, 46 L.Ed.2d 98 (1975). Common law unfair competition turns primarily on likelihood of customer confusion, and therefore defendants must prevail herein on that issue. Holiday Inns, Inc. v. Holiday Out in America, 481 F.2d 445 (5th Cir. 1973); B. H. Bunn Co. v. AAA Replacement Parts Co., 451 F.2d 1254 (5th Cir. 1971). Finally, the crux of a complaint based on the Georgia Uniform Deceptive Trade Practices Act is the likelihood of confusion between goods. Baker Realty Co. v. Baker, 228 Ga. 766, 187 S.E.2d 850 (1972). This claim also is without merit. IV. Dilution Georgia’s anti-dilution statute protects against “dilution of the distinctive quality of the trade-mark . . . notwithstanding the absence of competition between the parties or of confusion as to the source of goods or services . . . .” Ga. Code Ann. § 106-115. Dilution, as we have previously noted, occurs “where the use of the trademark by the subsequent user will lessen the uniqueness of the prior user’s mark with the possible future result that a strong mark may become a weak mark.” Holiday Inns, Inc. v. Holiday Out in America, 481 F.2d 445, 450 (5th Cir. 1973). The concept is not applicable in this situation, however, because “it has been determined that the marks themselves are not confusing,” id., and as discussed at length previously, “Domino,” outside plaintiff’s line of sugars and portion-control items, has already become a weak mark. Plaintiff’s claim against defendants under the Georgia statute is therefore invalid. V. Conclusion In reversing the district court and vacating the injunction entered against defendants, we do not intimate that the mark “Domino,” as applied to plaintiff’s sugars and portion-control items, is not" }, { "docid": "22675701", "title": "", "text": "our recent decisions so heavily relied upon by the parties, Harold F. Ritchie, Inc. v. Chesebrough-Pond’s, Inc., 2 Cir., 1960, 281 F.2d 755, by plaintiff, and Avon Shoe Co., Inc. v. David Crystal, Inc., 2 Cir., 1960, 279 F.2d 607 by defendant, affords much assistance, since in the Ritchie case there was confusion as to the identical product and the defendant in the Avon case had adopted its mark “without knowledge of the plaintiffs’ prior use,” at page 611. Where the products are different, the prior owner’s chance of success is a function of many variables: the strength of his mark, the degree of similarity between the two marks, the proximity of the products, the likelihood that the prior owner will bridge the gap, actual confusion, and the reciprocal of defendant’s good faith in adopting its own mark, the quality of defendant’s product, and the sophistication of the buyers. Even this extensive cata-logue does not exhaust the possibilities— the court may have to take still other variables into account. American Law Institute, Restatement of Torts, §§ 729, 730, 731. Here plaintiff’s mark is a strong one and the similarity between the two names is great, but the evidence of actual confusion, when analyzed, is not impressive. The filter seems to be the only case where defendant has sold, but not manufactured, a product serving a function similar to any of plaintiff’s, and plaintiff’s sales of this item have been highly irregular, varying, e. g., from $2,-300 in 1953 to $303,000 in 1955, and $48,-000 in 1956. If defendant’s sole business were the manufacture and sale of microwave equipment, we should have little difficulty in approving the District Court’s conclusion that there was no such likelihood of confusion as to bring into play either the Lanham Act, 15 U.S.C.A. § 1114(1), or New York General Business Law, § 368-b, or to make out a case of unfair competition under New York decisional law, see Avon Shoe Co. v. David Crystal, Inc., supra, at page 614, footnote 11. What gives us some pause is defendant’s heavy involvement in a phase of electronics" }, { "docid": "18637390", "title": "", "text": "confusion. The name YOZERT, like any other trademark, is intended to carry an informational load that includes origin. It is therefore a false representation within the meaning of the statute to employ a merchandise mark that bespeaks an origin differing from the true source of the goods. State Law Claims The defendants urge that all the rest of plaintiff’s claims be dismissed for failure of the federal claim or, alternatively, for failure to state a claim. The first theory is, of course, moot, and the substantive arguments for dismissal are desultory at best. Regarding Count II, the defendants allege that no unfair competition exists under New York law, citing Avon Shoe Co. v. David Crystal, Inc., 279 F.2d 607 (2d Cir.), cert. denied, 364 U.S. 909, 81 S.Ct. 271, 5 L.Ed.2d 224 (1960). In Avon the court endorsed dismissal of the unfair competition claim, remarking that the New York precedents cited by its plaintiff to support the claim were unpersuasive, because in all those cases “the second user had commenced his use with full knowledge of the first user’s extended, widespread use and with no interest other than to appropriate and trade on the first user’s good will.” Id. at 614 n. 11. These defendants seize on that language to urge that they had no full knowledge of or interest in appropriating the plaintiff’s mark, and that, in any event, the plaintiff could not have achieved a protected “widespread use” for the YOZERT mark in the slim lead time it enjoyed. The defendants argue analogously that the plaintiff cannot prevail on a common law trademark infringement claim absent a showing of “secondary meaning” for their YOZERT. To begin with, these contentions are matters of proof and are wholly inappropriate in a motion to dismiss where all well pleaded facts are taken as true. Moreover, the Avon dictum is not a full expression of New York law on the matter of unfair competition or trademark infringement. Relief against unfair competition . is no longer limited in New York to situations where secondary meaning has been established so that a defendant can" }, { "docid": "5508184", "title": "", "text": "its mark and its right to the exclusive use of it. See and compare Avon Shoe Co. v. David Crystal, Inc., 279 F.2d 607, 614 (2d Cir.), cert. denied, 364 U.S. 909, 81 S.Ct. 271, 5 L.Ed.2d 224 (1960), in which the Court articulated, but did not decide, the question whether § 1115(b)(5) establishes a defense to an incontestable mark or “merely allows an innocent junior user, whose use antedated the first user’s registration, to avoid the conclusive effect of an otherwise incontestable registration, thus leaving the first user to his remedy under § 1114(1), subject to proving the validity of his mark.” In the instant case, plaintiff does not, indeed could not, claim that its mark is incontestable, since it has not been in continuous use for the required five years. We are, therefore, not concerned with whether, or with what type of evidence, a defense might be raised to an incontestable mark. Defendant’s preferred interpretation, unsupported by citation of authority, runs counter to the design of the statute to protect the prior user of a mark. While defendant’s conception and production of the offending commercial may have been innocent, its use of the commercial commencing weeks after it had learned of plaintiff’s mark, was decidedly not. Defendant also contends that the term “gobble-gobble” in its commercial was a “fair use” since it was not used in a trademark sense. It is not a trademark infringement to use words in their ordinary, rather than in their special trademark, meaning. Gracious Lady Service, Inc. v. Welcome Wagon International Inc., 295 F.Supp. 1373 (E.D.Pa.1969); Jean Patou, Inc. v. Jacqueline Cochran, Inc., 201 F.Supp. 861, 865 (S.D.N.Y. 1962), aff’d, 312 F.2d 125 (2d Cir. 1963). In my view defendant’s use of “gobble-gobble” in its commercial was not in any sense ordinary. “Gobble-gobble” was uttered twice in the commercial, the second time in a manner strikingly similar to the use in plaintiff’s commercials. The name of the product was spoken while a picture of the product was shown; then the principal actor in the commercial declared, “gobble-gobble,” fostering an identification of that word" }, { "docid": "5508183", "title": "", "text": "* (5) That the mark whose use by a party is charged as an infringement was adopted without knowledge of the registrant’s prior use and has been continuously used by such party or those in privity with him from a date prior to registration of the mark under this chapter . . . Provided, however, That this defense or defect shall apply only for the area in which such continuous prior use is proved It is defendant’s contention that, since it had no actual knowledge of plaintiff’s trademark at the time it conceived and produced its turkey ham “gobble-gobble” commercial, defendant is free to continue to use it, at least in the New York market, because it had started to use the commercial prior to October 26, 1976, the date when plaintiff’s mark was registered. I think that the effect of § 1115(b) is simply to remove the statutorily created “conclusive evidence” feature of the registration of an incontestable mark, relegating the owner of the mark to the normal burden of proving the validity of its mark and its right to the exclusive use of it. See and compare Avon Shoe Co. v. David Crystal, Inc., 279 F.2d 607, 614 (2d Cir.), cert. denied, 364 U.S. 909, 81 S.Ct. 271, 5 L.Ed.2d 224 (1960), in which the Court articulated, but did not decide, the question whether § 1115(b)(5) establishes a defense to an incontestable mark or “merely allows an innocent junior user, whose use antedated the first user’s registration, to avoid the conclusive effect of an otherwise incontestable registration, thus leaving the first user to his remedy under § 1114(1), subject to proving the validity of his mark.” In the instant case, plaintiff does not, indeed could not, claim that its mark is incontestable, since it has not been in continuous use for the required five years. We are, therefore, not concerned with whether, or with what type of evidence, a defense might be raised to an incontestable mark. Defendant’s preferred interpretation, unsupported by citation of authority, runs counter to the design of the statute to protect the prior user" }, { "docid": "21202564", "title": "", "text": "the trademark “Haymaker” and the corporate name “Haymaker Sports, Inc.” on women’s apparel has not caused confusion in the trade or among ultimate purchasers and is not likely to result in confusion to the purchasers of articles of women's apparel. Neither by dilution of plaintiffs’ trademarks and trade names nor otherwise have the defendants infringed any of the plaintiffs’ trademarks and trade names. Defendants’ use of “Haymaker” on their line of women’s jewelry does not infringe plaintiffs” trademark or other rights and does not compete or compete unfairly with plaintiffs. Defendants’ use of various combinations of “Hay” and/or “Maker” — such as, “Hit Maker,” “Cynthia Of Haymaker,” “Charles Of Haymaker,” “Hay Jr.,” “Hey Jr.,” “Hayette” and other similar terms — does not infringe any of plaintiffs’ trademark or other rights and does not compete or compete unfairly with plaintiffs. IX. Defendants’ use of the mark “Haymaker” on women’s sportswear and the manner in which defendants conduct their business do not constitute any threat to plaintiffs’ reputation or good will. Plaintiffs are not entitled to injunctive relief or to any other relief. X. The assignment dated October 1, 1953 by The Daniel Hays Company, Inc. of its registered glove trademarks (Reg. No.380,719 and Reg.No.393,642) to Avon Shoe Co., Inc., was an assignment in gross and a nullity. XI. The complaint should be, and hereby is, dismissed on the merits. Judgment should be entered on the counterclaim of defendants David Crystal, Inc. and Haymaker Sports, Inc. declaring that defendants’ trademark “Hay-maker” on women’s sportswear does not infringe any of plaintiffs’ trademark rights, and directing the Commissioner of Patents (in accordance with the provisions of 15 U.S.C.A., § 1119) to dismiss and dissolve the pending opposition of plaintiff Avon Shoe Co., Inc. to the registration of the mark “Haymaker” for items of women’s sportswear and to issue registration to defendant Haymaker Sports, Inc. of said mark pursuant to its pending application filed October 20, 1953 and numbered 655,057. Costs and disbursements are awarded to defendants. Settle judgment on five days’ notice within five days from the date of the filing of this decision." }, { "docid": "12231951", "title": "", "text": "the disfavor with which this Circuit has viewed summary judgment in trademarks suits, see the oft-cited comment in Marcus Brier Sons Inc. v. Marvlo Fabrics Inc., 173 F.2d 29 (2d Cir. 1949), that “Disputes between parties as to trade-mark validity and infringement can rarely be determined satisfactorily on a motion for summary judgment,” we would be inclined to grant such relief here. No genuine issue as to a material fact is raised, with the possible exception of the issue of confusion, as to which defendant has furnished unsupported, conclusory medical opinions to the effect that prescriptions for defendant’s product Vagestrol would always contain sufficient information to distinguish it from plaintiff’s product Vagitrol. Under the stringent standard by which we are governed under Rule 56, F.R.Civ.P., this meager offering probably precludes summary judgment. However, it would not necessarily call for denial of preliminary injunctive relief. From our examination of all of the evidence submitted we are convinced that there is a very strong likelihood that plaintiff will prevail on the merits. Ac cordingly, after weighing the balance of hardships, including the serious injury that might be caused to the public if such relief were denied, we believe that this presents an appropriate case for the issuance of preliminary injunctive relief in the exercise of our discretion. Infringement — Likelihood of Confusion “Confusion as to source of origin is * * * the keystone of an action based upon infringement of a registered mark. 15 U.S.C.A. § 1114(1).” Avon Shoe Co. v. David Crystal, Inc., 279 F.2d 607, 612 (2d Cir.), cert. denied, 364 U.S. 909, 81 S.Ct. 271, 5 L.Ed.2d 224 (1960). In a garden-variety trademark infringement suit, where the chief interest affected by the alleged infringement is the plaintiff’s economic interest in preventing others from trading on its name and good will, the confusion question reduces to whether there is a likelihood that an appreciable number of ordinary prudent purchasers of the defendant’s product may, by reason of its labelling with the allegedly infringing mark, be misled into believing that the product comes from the same source as plaintiff’s goods." }, { "docid": "21478822", "title": "", "text": "its predecessor, Bullard. In view of the many dissimilarities between plaintiff’s and defendants’ products, the weakness of the plaintiff’s trademark, and the defendants’ good faith, the court finds that a likelihood of confusion, if it exists at all, is de minimis. See, Triumph Hosiery Mills, supra. Any instances of actual confusion should have been readily ascertainable by plaintiff, but none were shown at the trial. Moreover, plaintiff publishes the World Book Encyclopedia for intermediate grade and high school children and cannot claim that defendants’ series will hinder it in expanding “Childcraft” to appeal to the 7 to 14 year old market. See, Chandon Champagne Corp., supra; G. B. Kent, supra. Finally, although defendants’ series is moderately priced, the content of their books is of good quality. See, Avon Shoe Co. v. David Crystal, Inc., 279 F.2d 607 (2d Cir. 1960). Taking all factors into consideration, plaintiff has not established a “likelihood of confusion” between plaintiff’s and defendants’ books. Plaintiffs Claim of Unfair Competition The test of unfair competition again is likelihood of confusion, (Avon Shoe Co., supra, at p. 614). “Taking the total effect of defendant’s product upon the eye and mind of the prospective purchaser, will there be a confusion of origin?” Jean Patou, Inc., supra, 201 F.Supp., at 866. The relevant considerations are similar to those applied in determining trademark infringement. See, Dell Pub. Co. v. Stanley Pub., Inc., 9 N.Y.2d 126, 211 N.Y.S.2d 393, 172 N.E. 2d 656 (1961). In view of the findings as to the dissimilarities between the books, the weakness of the plaintiff’s mark as an indication of source of origin, and the defendants’ good faith in adopting their mark, plaintiff has failed to establish unfair competition. Nor, in the absence of a showing of likelihood of confusion or unfair intent on defendants’ part, can the plaintiff assert a right to relief under the New York anti-dilution statute, General Business Law, McKinney’s Con-sol.Laws, c. 20, § 368-d. Cue Publishing Co. v. Colgate-Palmolive Co., 45 Misc.2d 161, 256 N.Y.S.2d 239 (N.Y.Sup.Ct. 1965), aff’d, 23 A.D.2d 829, 259 N.Y.S. 2d 377 (1965). The court holds that" }, { "docid": "4467676", "title": "", "text": "Exxon Corp. v. Texas Motor Exchange of Houston, 628 F.2d 500, 504 (5 Cir., 1980). Our review of the record leads us to assume that the Chardón trademark is distinctive and, thus, a strong trademark. There is no evidence in the record indicating that the said trademark is used by other parties besides plaintiff. “Stronger marks are accorded broader protection against infringement than are ‘weak marks’ ”. Pignons S. A. de Mecanique v. Polaroid Corp., supra, at 492. After weighing all the factors we have reached the conclusion that defendant’s use of Chardón as trademark to identify defendant’s garments creates a likelihood of confusion among potential consumers. Therefore, plaintiff has established the likelihood of its ultimate success on the merits of its infringement claim as to the Chardón trademark. Unfair Competition or False Designation of Origin In addition to the trademark infringement claim, plaintiff claimed that Lazoff’s use of the trademark Chardón constituted unfair competition, in violation of Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a). Section 43(a) provides: “Any person who shall . . . use in connection with any goods or services ... a false designation of origin, or any false description or representation, including words or other symbols tending falsely to describe or represent the same, and shall cause such goods or services to enter into commerce . . . shall be liable to a civil action ... by any person who believes that he is or is likely to be damaged by the use of such false description or representation.” The basis for an action under this section is use of a mark in interstate commerce which is likely to cause confusion or to deceive purchasers concerning the source of the goods. Quabaug Rubber Co. v. Fabiano Shoe Co., Inc., 567 F.2d 154 (1 Cir., 1977). Thus, as with trademark infringement, injunctive relief will be granted upon proof of likelihood of confusion as to the source of goods. The same facts supporting a suit for trademark infringement will support a suit for unfair competition. See, e.g., Amstar Corp. v. Domino’s Pizza, Inc., supra; New" }, { "docid": "4021509", "title": "", "text": "is a matter also properly considered by a trial court on the issue of likelihood of confusion.”). It would be a needless exercise to analyze factors such as “the competitive proximity of the [parties’] products or the likelihood that plaintiff will ‘bridge the gap’ and offer a product like defendant’s,” Gruner + Jahr, 991 F.2d at 1077, if Defendants could use Plaintiffs’ mark to sell related products or services. Indeed, the Polaroid test addresses “how far a valid trademark shall be protected with respect to goods other than those to which its owner has applied it.” Polaroid, 287 F.2d at 495; see also Avon Shoe Co. v. David Crystal, Inc., 279 F.2d 607. 613 (2d Cir.1960) (“we have consistently held that a senior user possesses but two legitimate interests which may properly call for injunctive relief against a use by a junior user on related goods, namely, that he may at some future date desire to expand his business into the related field in which the junior user is operating”). Thus, whether Plaintiffs’ trademark certificate for goods is infringed by Defendants’ sale of services is appropriate ly considered under the “likelihood of confusion” prong. See Sports Auth., Inc. v. Prime Hospitality Corp., 89 F.3d 955, 961 n. 1 (2d Cir.1996) (“The strength of the [Plaintiffs] mark is also relevant to the separate inquiry of whether the mark is sufficiently strong to be protected at all under the Lanham Act.” (emphasis added)). Anchoring the analysis to the likelihood of confusion prong is consistent with Mushroom Makers. There, Plaintiff sought a declaratory judgment that its use of a trademark in connection with the promotion and sale of women’s jeans, jackets, skirts and overalls did not constitute infringement of Defendant’s registered trademark identifying a line of casual shoes, sandals, and slippers. Mushroom Makers, 580 F.2d at 46. The Second Circuit’s analysis focused on the likelihood of confusion. Mushroom Makers, 580 F.2d at 47. Moreover, as a registered, incontestable mark, this Court “need not tarry with the first prong of the infringement test.” Savin, 391 F.3d at 456. B. Likelihood of Confusion In assessing" }, { "docid": "12231953", "title": "", "text": "Avon Shoe Co. v. David Crystal, Inc., supra at 612; Haig v. Haig, Inc. v. Maradel Products, Inc., 249 F.Supp. 575, 577 (S.D.N.Y.1966). Confusion on the part of “ordinary prudent purchasers” is not, however, the only form of confusion relevant in trademark infringement litigation. Title 15 U.S.C. § 1114(1) provides a remedy for trademark infringement against “[a]ny person who shall, without the consent of the registrant— “(a) use in commerce any * * * colorable imitation of a registered mark in connection with the sale * * * of any goods * * * on or in connection with which such use is likely to cause confusion, or to cause mistake, or to deceive. * * ” Here the products in question are prescription drugs, chosen by physicians and dispensed upon their prescriptions by pharmacists. Except for the remote possibility of confusion on the part of a patient who has a quantity of both products, prescribing physicians and dispensing pharmacists constitute the class within which confusion between plaintiff’s and defendant’s products is of concern to us. A. Seidel, S. Dubroff & E. Gonda, Trademark Law and Practice¶16.08 at 424 (1963). The factors to be considered in deciding whether or not one mark infringes trademark rights in another “are variable and relative and no single one, because of its presence or absence, is, in itself, determinative of a case.” Kiki Undies Corp. v. Promenade Hosiery Mills, Inc., 411 F.2d 1097, 1099 (2d Cir. 1969). See also Polaroid Corp. v. Polar-ad Electronics Corp., 287 F.2d 492, 495 (2d Cir.), cert, denied, 368 U.S. 820, 82 S.Ct. 36, 7 L.Ed.2d 25 (1961). Among the relevant considerations are the proximity of the products, the similarity of the marks, the sophistication of affected consumers, the strength of the plaintiff’s mark, evidence of actual confusion, the quality of defendant’s product, and the defendant’s good faith or lack thereof in adopting the allegedly infringing mark. Polaroid Corp. v. Polarad Electronics Corp., supra at 495. Here while the two products are different in form (plaintiff’s Yagitrol being a cream and defendant’s Vagestrol a suppository), different in composition (the" }, { "docid": "21223203", "title": "", "text": "continuation of their trade mark use.” Avon Shoe Co. v. David Crystal, Inc., 279 F.2d 607, 613 (2 Cir.), cert. denied, 364 U.S. 909, 81 S.Ct. 271, 5 L.Ed.2d 224 (1960). In the Polaroid case, supra, 287 F.2d at 495, we essayed a partial listing of factors requiring consideration in this weighing process ; in Triumph Hosiery Mills, Inc. v. Triumph Int’l Corp., 308 F.2d 196, 198 (2 Cir.1962) — a ease in some ways the converse of this one since the older American user of a mark was seeking to prevent the use of a similar name long employed by a European firm — Judge Hincks ventured the prediction that “the full Bench of the court would now accept the propositions set forth [in Polaroid] * * *.” Although some of the factors there listed- — the degree of similarity between the two marks, the proximity of the products, and difference in quality— here favor the plaintiffs, others weigh for the defendant. Among these are the “weakness” of the mark, which is not at all one of those “fabricated marks which have no significance, save as they denote a single source or origin of the goods to which they are attached,” S. C. Johnson & Son v. Johnson, supra, 175 F.2d at 180, but rather an appropriate choice for any champagne because of its historical' or mythological reference to the invention of that wine; see Durable Toy & Novelty Corp. v. J. Chein & Co., 133 F.2d 853 (2 Cir.), cert. denied, 320 U.S. 211,. 63 S.Ct. 1447, 87 L.Ed. 1849 (1943) [Uncle Sam]; the improbability that - plaintiffs would ever wish to produce American champagne; the defendant’s good faith in adopting its mark; and the sophistication of the buyers. When we add three other factors — the rather sterile nature of plaintiffs’ three-year priority due to their exceedingly limited sales - in this country, their long delay in asserting their claim, and the serious harm an injunction would cause the defendant as against the trifling benefit to the plaintiffs — we have no doubt which way the-scales fall." }, { "docid": "22675700", "title": "", "text": "communications intended for defendant but directed to plaintiff. Against this, defendant asserts that its business is the sale of complex electronics equipment to a relatively few customers; that this does not compete in any significant way with plaintiff’s business, the bulk of which is now in articles destined for the ultimate consumer; that plaintiff’s excursions into electronics are insignificant in the light of the size of the field; that the instances of confusion are minimal; that there is no evidence that plaintiff has suffered either through loss of customers or injury to reputation, since defendant has conducted its business with high standards; and that the very nature of defendant’s business, sales to experienced industrial users and the government, precludes any substantial possibility of confusion. Defendant also asserts plaintiff’s laches to be a bar. The problem of determining how far a valid trademark shall be protected with respect to goods other than those to which its owner has applied it, has long been vexing and does not become easier of solution with the years. Neither of our recent decisions so heavily relied upon by the parties, Harold F. Ritchie, Inc. v. Chesebrough-Pond’s, Inc., 2 Cir., 1960, 281 F.2d 755, by plaintiff, and Avon Shoe Co., Inc. v. David Crystal, Inc., 2 Cir., 1960, 279 F.2d 607 by defendant, affords much assistance, since in the Ritchie case there was confusion as to the identical product and the defendant in the Avon case had adopted its mark “without knowledge of the plaintiffs’ prior use,” at page 611. Where the products are different, the prior owner’s chance of success is a function of many variables: the strength of his mark, the degree of similarity between the two marks, the proximity of the products, the likelihood that the prior owner will bridge the gap, actual confusion, and the reciprocal of defendant’s good faith in adopting its own mark, the quality of defendant’s product, and the sophistication of the buyers. Even this extensive cata-logue does not exhaust the possibilities— the court may have to take still other variables into account. American Law Institute, Restatement of Torts," }, { "docid": "12231952", "title": "", "text": "balance of hardships, including the serious injury that might be caused to the public if such relief were denied, we believe that this presents an appropriate case for the issuance of preliminary injunctive relief in the exercise of our discretion. Infringement — Likelihood of Confusion “Confusion as to source of origin is * * * the keystone of an action based upon infringement of a registered mark. 15 U.S.C.A. § 1114(1).” Avon Shoe Co. v. David Crystal, Inc., 279 F.2d 607, 612 (2d Cir.), cert. denied, 364 U.S. 909, 81 S.Ct. 271, 5 L.Ed.2d 224 (1960). In a garden-variety trademark infringement suit, where the chief interest affected by the alleged infringement is the plaintiff’s economic interest in preventing others from trading on its name and good will, the confusion question reduces to whether there is a likelihood that an appreciable number of ordinary prudent purchasers of the defendant’s product may, by reason of its labelling with the allegedly infringing mark, be misled into believing that the product comes from the same source as plaintiff’s goods. Avon Shoe Co. v. David Crystal, Inc., supra at 612; Haig v. Haig, Inc. v. Maradel Products, Inc., 249 F.Supp. 575, 577 (S.D.N.Y.1966). Confusion on the part of “ordinary prudent purchasers” is not, however, the only form of confusion relevant in trademark infringement litigation. Title 15 U.S.C. § 1114(1) provides a remedy for trademark infringement against “[a]ny person who shall, without the consent of the registrant— “(a) use in commerce any * * * colorable imitation of a registered mark in connection with the sale * * * of any goods * * * on or in connection with which such use is likely to cause confusion, or to cause mistake, or to deceive. * * ” Here the products in question are prescription drugs, chosen by physicians and dispensed upon their prescriptions by pharmacists. Except for the remote possibility of confusion on the part of a patient who has a quantity of both products, prescribing physicians and dispensing pharmacists constitute the class within which confusion between plaintiff’s and defendant’s products is of concern to" }, { "docid": "21478823", "title": "", "text": "Co., supra, at p. 614). “Taking the total effect of defendant’s product upon the eye and mind of the prospective purchaser, will there be a confusion of origin?” Jean Patou, Inc., supra, 201 F.Supp., at 866. The relevant considerations are similar to those applied in determining trademark infringement. See, Dell Pub. Co. v. Stanley Pub., Inc., 9 N.Y.2d 126, 211 N.Y.S.2d 393, 172 N.E. 2d 656 (1961). In view of the findings as to the dissimilarities between the books, the weakness of the plaintiff’s mark as an indication of source of origin, and the defendants’ good faith in adopting their mark, plaintiff has failed to establish unfair competition. Nor, in the absence of a showing of likelihood of confusion or unfair intent on defendants’ part, can the plaintiff assert a right to relief under the New York anti-dilution statute, General Business Law, McKinney’s Con-sol.Laws, c. 20, § 368-d. Cue Publishing Co. v. Colgate-Palmolive Co., 45 Misc.2d 161, 256 N.Y.S.2d 239 (N.Y.Sup.Ct. 1965), aff’d, 23 A.D.2d 829, 259 N.Y.S. 2d 377 (1965). The court holds that plaintiff’s trademark has not been infringed by the defendants, nor have the defendants been guilty of unfair competition. Defendants, however, have not established that plaintiff’s trademark is invalid. Defendants did not press this point either in their briefs or at trial. As noted above, registration under the Lanham Act is prima facie evidence of validity (15 U.S.C. § 1057(b)) and cases such as Application of Cooper, supra, support plaintiff’s contention that descriptive marks can be used non-descriptively. The foregoing constitutes the court’s findings of fact and conclusions of law pursuant to Rule 52, F.R.Civ.P. Accordingly, the clerk may enter judgment in favor of the defendants on the complaint, and judgment for the plaintiff dismissing defendants’ counterclaim. It is so ordered. . Defendants did not press this argument either at trial or in their briefs, and have cited no authority to support it. The facts show that plaintiff mailed approximately 400,000 circulars between August 1960 and September 1962 in an attempt to dispose of Bullard’s inventory of “The How and Why Library.” In this period plaintiff" }, { "docid": "23281562", "title": "", "text": "helps to prevent confusion about the source of products sold under a trademark and to instill in consumers the confidence that inferior goods are not being passed off by use of a familiar trademark. In short, therefore, the benefits of prior registration under the Lanham Act are justified in light of the order such registration brings to the market place. See Weiner King, Inc. v. Wiener King, Corp., 615 F.2d 512, 523-24 (C.C.P.A.1980). As our discussion indicates, Natural’s federal registration does not necessarily establish a nationwide right to use the ROOTS mark on footwear, accessories, and clothing. Natural’s rights under the Lanham Act depend, first, on the terms of its registration which establish as an initial matter the scope of protection of the mark. Second, as we discussed above, Natural as a federal registrant is still subject to the defense of a prior user of the mark who has established a market in specific areas notwithstanding that senior user’s failure to register. 1. The Scope of the Federal Registration The Lanham Act provides that the protection afforded by registration extends to “the goods or services specified in the registration subject to any conditions or limitations stated therein.” 15 U.S.C. § 1115(a). The Second Circuit has concluded that, given this language, “even if a mark is registered, the presumptive right to use it extends only so far as the goods or services noted in the registration certificate.” Mushroom Makers, Inc. v. R.G. Barry Corp., 580 F.2d 44, 48 (2d Cir.1978), cert. denied, 439 U.S. 1116, 99 S.Ct. 1022, 59 L.Ed.2d 75 (1979); see also Avon Shoe Co. v. David Crystal, Inc., 279 F.2d 607, 613 n. 7 (2d Cir.), cert. denied, 364 U.S. 909, 81 S.Ct. 271, 5 L.Ed.2d 224 (1960). The Avon Shoe court also stated in this regard that “incontestability under [section 1065] would carry a conclusive presumption of the plaintiffs exclusive right to use its mark only on shoes,” when the registration indicated only that the trademark would identify shoes. Id. (dictum). Unlike the Second Circuit, the Court of Customs and Patent Appeals has apparently decided that federal" }, { "docid": "9327952", "title": "", "text": "LIFE trademark. Carling’s contention that the trademark HIGH LIFE is not ordinarily used in the marketplace separate and apart from the name Miller — i. e., that Miller’s premium beer is known and referred to as Miller HIGH LIFE and not simply as HIGH LIFE — although perhaps true does not negate Miller’s right to the exclusive use of its mark HIGH LIFE and to protect it from being infringed. To accept Carling’s contention would mean that any defendant could escape the reach of the trademark laws by simply inserting a brand name in front of the allegedly infringed mark and claiming that such differentiates or distinguishes the marks regardless of the similarity between or even identity of the two marks without inclusion of the brand name. For all practical purposes the trademark laws under such interpretation would afford little or no protection to the trademark owner. Carling’s contention that its mark HIGHLITE should only be compared to Miller HIGH LIFE and not to simply the registered mark HIGH LIFE is therefore rejected. See, Miles Shoes v. R. H. Macy & Co., 199 F.2d 602, 603 (2d Cir. 1952). • A party infringes another’s trademark when his use of a mark in connection with the sale, offering for sale, distribution or advertising of any goods is likely to cause confusion, or to cause mistake, or to deceive. 15 U.S.C. § 1114(l)(a). Thus, “[c]onfusion * * * is * * * the keystone of an action based upon infringement of a registered mark.” Avon Shoe Co. v. David Crystal, Inc., 279 F.2d 607, 612 (2d Cir.), cert. denied, 364 U.S. 909, 81 S.Ct. 271, 5 L.Ed.2d 224 (1960). The test is whether or not there is a likelihood that an appreciable number of ordinarily prudent purchasers would be confused as to the source of goods which they are purchasing or in distinguishing one product from another. Avon Shoe Co. v. David Crystal, Inc., supra, at 612; Maternally Yours v. Your Maternity Shop, supra, at 542; Syntex Laboratories, Inc. v. Norwich Pharmacal Co., 315 F.Supp. 45, 49 (S.D.N.Y.1970), aff’d, 437 F.2d 566" }, { "docid": "1173668", "title": "", "text": "Competition Trademarks and Monopolies § 81.1 (3d ed. 1969) (hereinafter Calmann) ; 1 A. Seidel, S. Dubroff and E. Gonda, Trademark Law and Practice § 16.01 (1963) (hereinafter Seidel). Finally, where, as is often enough the case, evaluation of all pertinent factors still leaves the matter in some doubt, such doubt should be resolved against the newcomer. J. R. Wood and Sons, Inc. v. Reese Jewelry Corporation, 278 F.2d 157, 160 (2 Cir. 1960) (dissenting opinion) ; Seidel, supra, § 16.03. The rationale for this rule was aptly stated by Judge Friendly in the Wood case: “When middle-aged judges are obliged to determine the ‘likelihood of confusion’ in the purchase of engagement and wedding rings by youthful swains not enjoying our advantage of knowing the answer in advance, I should suppose the most resolute mind must entertain some doubts. I prefer to resolve mine in favor of a plaintiff who has spent money and effort in exploiting its mark for nearly a score of years rather than of a defendant who, with the world of possible names before him, has chosen to inch as close to the plaintiff’s mark as he believes he safely can, even if he has done this in a ‘good faith’ belief that he has succeeded.” 278 F.2d 157 at 160. Turning to the factors to be considered in assessing a prior owner’s claims that a non-competitor’s use of a mark constitutes an infringement, we again rely upon Judge Friendly’s oft-cited listing of evaluative criteria in Polaroid Corp., supra, 287 F.2d at 495, which has provided the standard method of approach in this Circuit. As he pointed out: “Where the products are different, the prior owner’s chance of success is a function of many variables: the strength of his mark, the degree of similarity between the two marks, the proximity of the products, the likelihood that the prior owner will bridge the gap, actual confusion, and the reciprocal of defendant’s good faith in adopting its own mark, the quality of defendant’s product, and the sophistication of the buyers. Even this extensive catalogue does not exhaust the" }, { "docid": "12689385", "title": "", "text": "on or in connection with which such use is likely to cause confusion * * Confusion caused is not confusion in the abstract, but rather confusion as to source of the goods, see American Steel Foundries v. Kobertson, 269 U.S. 372, 46 S.Ct. 160, 70 L.Ed. 317 (1926); Joshua Meier Co. v. Albany Novelty Mfg. Co., 236 F.2d 144 (2d Cir. 1956), by an appreciable number of ordinary prudent purchasers, Avon Shoe Co. v. David Crystal, Inc., 279 F.2d 607 (2d Cir. 1960). Whether confusion as to source exists is essentially a question of fact, Brown & Bigelow v. B.B. Pen Co., 191 F.2d 939 (8th Cir. 1951), but certain indicia have been articulated to aid a court in deciding whether trade-mark infringement has occurred: degree of similarity between trade-marks in appearance and suggestion, strength of plaintiff’s mark, intent to palm off products as those of another, the area and manner of concurrent use. See Maternally Yours v. Your Maternity Shop, 234 F.2d 538, 543 (2d Cir. 1956). The degree of similarity in appearance between plaintiff’s Pinch and defendant’s Pinchy, as set forth above, is striking. The similarity in appearance is not so striking between the after shave lotion and the Scotch, and is even less so when the after shave lotion is packaged with defendant’s cologne. While defendant has submitted a search report indicating that the word “Pinch” has been used on several products, plaintiff’s use of the word on its Scotch in conjunction with the shape of its bottle has readily achieved public identification and secondary meaning. Now as to the second indicium — the strength of plaintiff’s mark. The bottle shape is functional, artistic and certainly more than a mark; thus, when the bottle is not filled with a whisky product, it would not seem to be plaintiff’s forever. The trade-mark statute itself seems to confine protection to “goods in connection with which the mark is used * * ”, 15 U.S.C. § 1051 (1962); Kellogg Co. v. National Biscuit Co., 305 U.S. 111, 59 S.Ct. 109, 83 L.Ed. 73 (1938); Vandenburgh, Trademark Law and Proce dure," } ]

[ { "docid": "12496623", "title": "", "text": "her.e we are faced with a concept of continuous physical presence. We do not regard this distinction as at all significant. ****** Here there can be no question of the sufficiency of physical presence. The question is whether there was a sufficient continuity. In our judgment the term “continuous” is no more subject to a hard and fast construction than is the term “intended.” The question is whether the interruption, viewed in balance with its consequences, can be said to have been a significant one under the guides laid down in Fleuti. (329 F.2d at 815-816) In Fleuti, supra, the Supreme Court further stated, referring to the visit by Fleuti of “about a couple of hours” duration to Mexico: We conclude, then, that it effectuates congressional purpose to construe the intent exception to § 101(a) (13) as meaning an intent to depart in a manner which can be regarded as meaningfully interruptive of the alien’s permanent residence. (374 U.S. at 462, 83 S.Ct. at 1812) Similarly, here, the petitioner’s visit of about two hours to Mexico should not be regarded as meaningfully interruptive of his continuous presence in the United States for about ten years. We adhere to our holding in Wadman and hold that petitioner’s brief visit to Mexico did not bar him from consideration for suspension of deportation as a matter of law. In deciding whether to permit an application for suspension of deportation when the issue is physical presence “in the United States for a continuous period of not less than seven years immediately preceding the date of such application,” the Board must determine the significance of an absence from the United States during that time under the standard set down in Fleuti. In this case the respondent attempts to distinguish the holdings in Fleuti and in Wadman by pointing out that the original entry in Fleuti of the alien was a legal one, whereas in this case the petitioner’s original entry was illegal. The respondent argues that the benefits of the construction given § 244(a), 8 U.S.C. § 1254(a), by Wadman should be applied only to" } ]

[ { "docid": "13335818", "title": "", "text": "civil liberties which he has enjoyed in this country. We do not read Rosenberg v. Fleuti, supra, as the district court reads it. There, the court held that “an innocent, casual, and brief excursion by a resident alien outside this country’s borders may not have been ‘intended’ as a departure disruptive of his resident alien status and therefore may not subject him to the consequences of an ‘entry’ into the country on his return.” Rosenberg v. Fleuti, supra, 374 U.S. at 462, 83 S.Ct. at 1812. The Court also held that “it effectuates congressional purpose to construe the intent exception to § 101(a) (13) as meaning an intent to depart in a manner which can be regarded as meaningfully interruptive of the alien’s permanent residence.” Id. One of the factors that the Court determined to be relevant to the inquiry as to whether a departure was a “meaningful” interruption was “the purpose of the visit, for if the purpose of leaving the country is to accomplish some object which is itself contrary to some policy reflected in our immigration laws, it would appear that the interruption of residence thereby occurring would properly be regarded as meaningful.” Id. The Court also noted that “the operation of these and other possibly relevant factors remains to be developed ‘by the gradual process of judicial inclusion and exclusion.’ Davidson v. New Orleans, 96 U.S. 97, 104 [24 L.Ed. 616].” Id. We hold that the interruption of Palatian’s residence that occurred was “meaningful” within the principles of the Fleuti case. What Palatian did when he attempted to come back to this country from Mexico was an “[attempt] to accomplish some object which is itself contrary to some policy reflected in our immigration laws.” Those laws provide for the exclusion or deportation of an alien who has been convicted of smuggling marijuana. 8 U.S.C. § 1182(a) (23), 8 U.S.C. § 1251(a) (11). This is a clear indication that the immigration laws reflect a general concern over the problem of drug control. See generally, Garcia Gonzales v. I.&N.S., 9 Cir., 1965, 344 F.2d 804. Palatian’s smuggling of" }, { "docid": "5945527", "title": "", "text": "For instance, an absence for a few days, except for an unlawful purpose, generally is not meaningfully interruptive. See, e. g. Cuevas-Cuevas v. INS, 523 F.2d 883, 884 (9th Cir. 1975); Maldonado-Sandoval v. INS, 518 F.2d 278, 280-81 (9th Cir. 1975); Zimmerman v. Lehmann, 339 F.2d 943, 944 (7th Cir. 1965), cert. denied, 381 U.S. 925, 85 S.Ct. 1559, 14 L.Ed.2d 683 (1965). If an alien is absent for several weeks or more, however, the courts usually look more carefully at other factors such as purpose, intent to remain, distance traveled, voluntariness of trip, necessity of travel documents, the alien’s knowledge of the consequences of the trip and how many members of the family were absent from this country. Compare Mamanee v. INS, 566 F.2d 1103, 1105 (9th Cir. 1977); MunozCasarez v. INS, 511 F.2d 947, 948 (9th Cir. 1975); and Heitland v. INS, 551 F.2d 495, 500-504 (2d Cir.), cert. denied, 434 U.S. 819, 98 S.Ct. 59, 54 L.Ed.2d 75 (1977) with Toon Ming Wong v. INS, 363 F.2d at 235-36 (9th Cir. 1966); Itzcovitz v. Selective Service Local Board, 447 F.2d 888, 891-94 (2d Cir. 1971). In a recent case, this court addressed the issue whether an alien’s absence from this country between school semesters to visit his sick mother was meaningfully interruptive of his seven years continuous presence required by 8 U.S.C. § 1254. See Kamheangpatiyooth v. INS, 597 F.2d 1253 (9th Cir. 1979). The court concluded that an absence is not meaningfully interruptive of the entire period of presence in the United States if the hardship of deportation would be equally severe if the absence had not occurred, and if no significant increase in the likelihood of deportation could reasonably have been expected to flow from the manner and circumstances surrounding the absence. Id. at 1257. In Kamheangpatiyooth, this court held that neither the length of the absence (30 days), nor the distance traveled (to Thailand) conclusively broke the requisite continuity of physical presence. Id at 1258. The court remanded the case because the immigration judge and the Board of Immigration Appeals had applied the “three-pronged" }, { "docid": "5945528", "title": "", "text": "Itzcovitz v. Selective Service Local Board, 447 F.2d 888, 891-94 (2d Cir. 1971). In a recent case, this court addressed the issue whether an alien’s absence from this country between school semesters to visit his sick mother was meaningfully interruptive of his seven years continuous presence required by 8 U.S.C. § 1254. See Kamheangpatiyooth v. INS, 597 F.2d 1253 (9th Cir. 1979). The court concluded that an absence is not meaningfully interruptive of the entire period of presence in the United States if the hardship of deportation would be equally severe if the absence had not occurred, and if no significant increase in the likelihood of deportation could reasonably have been expected to flow from the manner and circumstances surrounding the absence. Id. at 1257. In Kamheangpatiyooth, this court held that neither the length of the absence (30 days), nor the distance traveled (to Thailand) conclusively broke the requisite continuity of physical presence. Id at 1258. The court remanded the case because the immigration judge and the Board of Immigration Appeals had applied the “three-pronged Fleuti test” without analyzing the circumstances of the case in terms of the purposes underlying the continuity requirement. This court, in Kamheangpatiyooth, stated: “ . . . It was Congress’ judgment that presence of that length [seven years] was likely to give rise to a sufficient commitment to this society through establishment of roots and development of plans and expectations for the future to justify an examination by the Attorney General of the circumstances of the particular case to determine whether deportation would be unduly harsh. An alien who leaves the country briefly and for innocent reasons during the requisite seven years may be in no different position, realistically viewed, than an alien who has remained within the borders for an identical period.” Kamheangpatiyooth at 1256. In this case, Dr. Chan’s brief vacation to Canada and Mrs. Chan’s trip to Austria to study German were clearly not meaningfully interruptive of their presence in the United States. As for their trips to Hong Kong, Dr. Chan’s longest absence was 80 days; Mrs. Chan’s was 95 days." }, { "docid": "13335825", "title": "", "text": "General that his departure to a foreign port or place or to an outlying possession was not intended or reasonably to be expected by him or his presence in a foreign port or place or in an outlying possession was not voluntary: Provided, That no person whose departure from the United States was occasioned by deportation proceedings, extradition, or other legal process shall be held to be entitled to such exception.” . See Matter of Valdovinos, ID 2228, BIA, September 11, 1973: Matter of Janati-Ataie, II) 2170, AG, October 26, 1972; Gordon & Rosenfield, Immigration Law and Procedure, . § 4.6c at 4-31-4-34. . See, e. g., Martin-Mendoza v. I.&N.S., 9 Cir., 1974, 499 F.2d 918. 921 (finding an entry where the alien departed for the purpose of arranging to facilitate the illegal entry of aliens into the United States); Barragan-Sanohez v. Rosenberg, 9 Cir., 1972, 471 F.2d 758, 759 (finding that residence was not “continuous” under 8 U.S.C. § 1254(a)(1) when the alien was forced to depart under threat of deportation); Toon-Ming Wong v. I.&N.S., 9 Cir., 1966, 363 F.2d 234, 236 (holding that the issue of continuous presence under Fleuti and 8 U.S.C. § 1254(a) (1) was not determined solely by looking at the length of visit); Git Foo Wong v. I.&N.S., 9 Cir., 1966, 358 F.2d 151, 153 (holding that an innocent visit to Mexico for two hours should not he regarded as meaningfully interruptive of continuous presence in the United States under 8 U.S.C. § 1254(a) (1)); Wadman v. I.&N.S., 9 Cir., 1964, 329 F.2d 812 (holding that the Fleuti standard applied to 8 U.S.C. § 1254(a)(1) and remanding for a determination of whether a five-day vacation meaningfully interrupted continuous presence); Itzcovitz v. Selective Service Local Board No. 6 N.Y., N.Y., 2 Cir., 1971, 447 F.2d 888, 893-894 (holding that- a three-week trip to attend a training course, required by an employer is not a meaningful interruption under Fleuti and would not result in an entry under 8 U.S.C. § 1101(a) (13)); Zimmerman v. Lehmann, 7 Cir., 1965, 339 F.2d 943, 949 (holding no entry within" }, { "docid": "10712147", "title": "", "text": "on May 6, 1963 when he returned to the United States side of the border. In short, we conclude that there is less than adequate evidence in the record to support a finding that the petitioner left the country with the intent to interrupt in any meaningful manner his status as a permanent resident alien. This case is necessarily limited to its facts. A different set of facts applied to the criteria to be weighed might dictate a different result. See, e. g., Gamero v. Immigration and Naturalization Service, 9 Cir. 1966, 367 F.2d 123; Zimmerman v. Lehmann, 7 Cir. 1965, 339 F.2d 943; Wadman v. Immigration and Naturalization Service, 9 Cir. 1964, 329 F.2d 812. Under the facts of this case, we simply conclude that the agency determination that the incident of May 6, 1963, was an “entry” does not have support in the record. The petition is granted; the deportation order is vacated and set aside and its enforcement enjoined. . The government’s own brief reflects that motivation during the petitioner’s May 16, 1963, visit to Juarez is the only plausible grounds upon which to distinguish this ease from Fleuti. Although the government notes that petitioner made twice-a-week trips to Mexico during 1963, or about 100 trips during the year, none of these other departures and returns to the United States are argued as “entries” which would subject the petitioner to deportation. JONES, Circuit Judge, dissenting: The stay of Yanez-Jacquez was brief and perhaps it was casual, but when he went across the border with the icepick in search of someone on whom the icepick was to be used, I cannot agree that the visit was innocent. I do not think Rosenberg v. Fleuti applies. I would let the order of deportation be enforced. I dissent." }, { "docid": "5273241", "title": "", "text": "who was not in possession of a valid immigrant visa or other reentry document. The theory of the INS is that petitioner’s visa is invalid because his second marriage was bigamous. Petitioner argues that because of his status as a permanent resident alien and also because his (attempted) return to the United States in May 1970 did not constitute an “entry,” he is entitled to deportation proceedings rather than exclusion proceedings. We agree. The differences between proceedings of exclusion and those of deportation are significant. It is certainly possible that if petitioner had been given the benefit of deportation proceedings, his cause might have been successful. Therefore, the relief petitioner seeks — a de novo determination of his case in deportation proceedings — is not insubstantial. Although 8 U.S.C. § 1182(a) does not by its terms mention “entry,” it is plain that this section specifies the classes of aliens excludable at the time of entry. (8 U.S.C. § 1251(a)(1); see, e. g., Rosenberg v. Fleuti (1963), 374 U.S. 449, 451-52, 83 S.Ct. 1804, 10 L.Ed.2d 1000; Itzcovitz v. Selective Service Local Bd. No. 6, N.Y., N.Y. (2d Cir. 1971), 447 F.2d 888, 891 — 92; Zimmerman v. Lehmann (7th Cir. 1965), 339 F.2d 943, 947-49.) We conclude that section 1182(a) is not applicable to petitioner, and that exclusion proceedings were therefore inappropriate because petitioner was not an alien seeking “entry” into the United States in May 1970. At the time of his attempted return to the United States petitioner had already been granted the status of permanent resident alien. His brief visit to Mexico did not manifest “an intent to depart in a manner which can be regarded as meaningfully interruptive of the alien’s permanent residence.” (Rosenberg v. Fleuti, supra, 374 U.S. at 462, 83 S.Ct. at 1812.) Thus petitioner was not subject to exclusion proceedings. To deprive petitioner of the benefit of deportation proceedings in the determination of his case merely because of his brief visit across the border would do violence to both the letter and the spirit of Fleuti: “[A]n innocent, casual, and brief excursion by a" }, { "docid": "13335824", "title": "", "text": "this is an irrational result. Nor is the fact that Palatian may be sent back to Bulgaria a basis for a finding that he did not “enter” this country when he returned from Mexico. However much we may sympathize with his plight, the fact is that he foolishly brought it upon himself. “Although we sympathize with petitioner’s unfortunate position, we are compelled to-uphold the decision of the [Service]. Unfortunately for petitioner, we do not act as a court of equity.” Barragan-Sanchez v. Rosenberg, 9 Cir., 1972, 471 F.2d 758, 760. The order appealed from is reversed. . 8 U.S.C. § 1101(a) (13) reads : “(13) The term ‘entry’ means any coming of an alien into the United States, from a foreign port or place or from an outlying possession, whether voluntarily or otherwise, except that an alien having a lawful permanent residence in the United States shall not be regarded as making an entry into the United States for the purposes of the immigration laws if the alien proves to the satisfaction of the Attorney General that his departure to a foreign port or place or to an outlying possession was not intended or reasonably to be expected by him or his presence in a foreign port or place or in an outlying possession was not voluntary: Provided, That no person whose departure from the United States was occasioned by deportation proceedings, extradition, or other legal process shall be held to be entitled to such exception.” . See Matter of Valdovinos, ID 2228, BIA, September 11, 1973: Matter of Janati-Ataie, II) 2170, AG, October 26, 1972; Gordon & Rosenfield, Immigration Law and Procedure, . § 4.6c at 4-31-4-34. . See, e. g., Martin-Mendoza v. I.&N.S., 9 Cir., 1974, 499 F.2d 918. 921 (finding an entry where the alien departed for the purpose of arranging to facilitate the illegal entry of aliens into the United States); Barragan-Sanohez v. Rosenberg, 9 Cir., 1972, 471 F.2d 758, 759 (finding that residence was not “continuous” under 8 U.S.C. § 1254(a)(1) when the alien was forced to depart under threat of deportation); Toon-Ming Wong v." }, { "docid": "4180868", "title": "", "text": "the appeal dismissed. CONCLUSIONS Although we sympathize with petitioner’s unfortunate position, we are compelled to uphold the decision of the Special Inquiry Officer as affirmed by the Appeals Board. Unfortunately for petitioner, we do not act as a court of equity. Petitioner’s reliance on Rosenberg v. Fleuti, 374 U.S. 449, 83 S.Ct. 1804, 10 L.Ed.2d 1000 (1963), is completely misplaced. First of all, the alien in Fleuti was admitted to this country for a permanent residence, rather than for a period of 72 hours. Next, Fleuti involved a voluntary departure for “about a couple of hours.” In passing on the issue presented, the Supreme Court held that it would be inconsistent with the general purpose of Congress to hold that an innocent, casual and brief excursion by a resident alien outside the country’s borders was “intended” as a departure disruptive of the aliens’ resident alien status, so as to subject him to the consequences of an “entry” into the country on his return. Fleuti emphasizes that the term “continuous” is no more subject to a hard and fast construction than is the term “intended”. Wadman v. I&NS, 329 F.2d 812, 816 (CA9, 1964). Here, we are concerned with the meaning of the word “continuous”, as used in 8 U.S.C. § 1254(a)(1). One of the guidelines emphasized in Fleuti is “The purpose of the visit . . . .” It is there said, “ . . . for if the purpose of leaving the country is to accomplish some object which is itself contrary to some policy reflected in our immigration laws, it would appear that the interruption of residence thereby occurring would probably be regarded as meaningful.” Fleuti, supra, 374 U.S. p. 462, 83 S.Ct. p. 1812. This guideline was recognized and utilized by us in Toon-Ming Wong v. I&NS, 363 F.2d 234, 235 (CA 9, 1966). There, in speaking on the subject, we said: “On the other hand, a very brief absence might suffice if voluntary and accompanied by a realization of possible consequences to the alien’s status as a United States resident, particularly if the journey abroad were" }, { "docid": "4432285", "title": "", "text": "was not an interruption of “continuous” physical presence permitting deportation. Even more apposite, perhaps, is the Seventh Circuit decision in Zimmerman v. Lehmann, 339 F.2d 943 (7th Cir.), cert. denied, 381 U.S. 925, 85 S.Ct. 1559, 14 L.Ed.2d 683 (1965). There the court, quoting at length from Fleuti, held that neither a five- or six-day “harmless, innocent” vacation in Canada in 1952 nor a less than 24-hour trip to Canada in 1953 constituted an illegal “entry” within § 101(a) (13) of the Immigration and Nationality Act of 1952. We believe the Congressional purpose underlying the Act would best be served by a similar holding here. The time factor is, to be sure, longer than in Zimmerman, Wadman or Fleuti, but it is still limited to three weeks, and is fairly characterized as only temporary. The purpose of Itzcovitz’s planned trip is in a real sense for the benefit of his employer; he is not merely vacationing, as were the petitioners in the other cases just mentioned. True, he doesn’t have to go, but whether he would be able to keép his job, much less advance himself, without going to Tel Aviv is doubtful. In any event, he has been directed by his employer to go. In a general sense Itzcovitz “intends” to go to Tel Aviv, just as Fleuti intended to go to Mexico. But appellant is not in the posture of having taken the trip in disregard of the immigration consequences; rather he has here sought relief in advance. The purpose of his trip is entirely bona fide, honorable and lawful. He has every intention of retaining permanently his residence in the United States. And, indeed, the sole purpose of the three week trip is to qualify him for more useful employment service as he continues his permanent residence. Under these circumstances — and we consider them limited — we do not think appellant’s trip to Tel A„viv will be “meaningfully interrup-tive” of his permanent residence “within the meaning and ameliorative intent of the exception to § 101(a) (13).” Rosenberg v. Fleuti, supra, 374 U.S. at 461, 462, 83" }, { "docid": "22330116", "title": "", "text": "applicant’s pursuit of legalization. With respect to all successful applicants for legalization, their brief, casual and innocent trips abroad will have no adverse consequences; even if the alien were subject to exclusion proceedings upon his or her return, the successful applicant’s status will be adjusted and the slate wiped clean. Thus, with respect to all aliens in the class targeted by Congress in the immigration amnesty program, the congressional purpose is fully accomplished. We do not think it implausible that Congress intended a legalization applicant’s “brief, casual, and innocent” absence to affect only the question of continuous physical presence and not “entry.” A very natural, indeed the most plausible, reading of the statute is that Congress merely intended the phrase as a shorthand for evaluating whether there was a meaningful interruption in the alien’s continuous physical presence. Fleuti itself, and its progeny, considered the contours of what constitutes a departure that is meaningfully interruptive of the alien’s status. For example, courts have considered how long an absence may be considered brief, Itzcovitz v. Selective Service Local Bd., 447 F.2d 888, 889-94 (2d Cir.1971) (permanent resident’s three-week trip to Tel Aviv for job training was brief); what purposes behind a departure are innocent, Laredo-Miranda v. INS, 555 F.2d 1242, 1246 (5th Cir.1977) (though permanent resident’s trip to Mexico was for innocent purpose initially, it became meaningfully interrup-tive when he aided illegal entrants on his return); and whether the hardship to the alien or the alien’s family attending a particular outcome is relevant to construing the intent exception, Zimmerman v. Lehmann, 339 F.2d 943, 948-49 (7th Cir.1965) (considering permanent resident’s length of residency and family ties); and, if so, how relevant, Lozano-Giron v. INS, 506 F.2d 1073, 1077-80 (7th Cir.1974) (despite nine years of permanent residence, no evidence of significant family, property, or employment ties in the United States). We think this is the sense in which Congress intended the phrase “brief, casual, and innocent absence”: that an applicant’s absences will be evaluated in this well-understood manner for the purpose directed by Congress — i.e., for the purpose of determining whether the" }, { "docid": "12975086", "title": "", "text": "at 460, 83 S.Ct. at 1811, and that this country’s “ ‘hospitality, once granted, shall not be subject to meaningless and irrational hazards.’ ” Id. at 459, 83 S.Ct. at 1810 (quoting DiPasquale v. Karnuth, 158 F.2d 878, 879 (2d Cir.1947)). The purpose of Jubilado’s absence and the presence of family members in the United States are sufficiently important to require us to find that Jubilado’s return to the United States did not amount to an entry. As a permanent resident alien, Jubilado had a right to have the effect of his conviction determined in a deportation proceeding with its greater procedural safeguards. The BIA’s contrary holding is not supported by substantial evidence. Since we hold that Jubilado did not enter, his parole was improper, see 8 U.S.C. § 1182(d)(5)(A) (parole limited to aliens who enter), and we need not reach Jubilado’s hardship claim. We remand this case to the BIA for proceedings consistent with the views expressed herein. . Toon-Ming Wong and Kamheangpatiyooth v. INS, 597 F.2d 1253 (9th Cir.1979), both construe Fleuti and other cases defining \"entry\" to determine if an alien has satisfied the continuous presence requirement for suspension of deportation under 8 U.S.C. § 1254(a)(1). In Wadman v. INS, 329 F.2d 812, 815 (9th Cir.1964), this court first determined that a similar test applies in defining a \"break in the continuity of physical presence\" under § 1254(a)(1) and defining an \"entry\" under section 1 1O1(a)( 13). However, the Supreme Court recently stated that Fleuti's definition of an entry is \"essentially irrelevant\" to a determination of the continuous presence requirement of § 1254(a)(1). INS v. Phinpath-ya, 464 U.S. 183, 193, 104 S.Ct. 584, 591, 78 L.Ed.2d 401 (1984). Thus, Toon-Ming Wong and Kamheangpatiyooth are no longer good precedent for suspension of deportation cases. Nonetheless, they remain valuable precedent for interpreting Fleuti." }, { "docid": "5945525", "title": "", "text": "of Immigration Appeals upheld the immigration judge’s findings and dismissed the appeal. The Chans petition for review of this decision. Analysis To be eligible for suspension of deportation, an alien must demonstrate: (1) continuous physical presence in the United States for the immediately preceding seven years; (2) good moral character ; and (3) extreme hardship to himself or to his spouse, parent, or child who is an American citizen or a lawful permanent resident. 8 U.S.C. § 1254(a)(1). Furthermore, proof of eligibility for suspension of deportation does not compel granting the relief. Fong Choi Yu v. INS, 439 F.2d 719 (9th Cir. 1971). The decision of the Board of Immigration Appeals will be upheld unless there has been an abuse of discretion, Davidson v. INS, 558 F.2d 1361, 1362-3 (9th Cir. 1977), but the suspension of deportation statute, 8 U.S.C. § 1254, should be liberally construed because of its ameliorative purpose, Wadman v. INS, 329 F.2d 812, 817 (9th Cir. 1964). I Continuous Physical Presence The Chans argue that their vacations to Hong Kong, Canada and Austria were not “meaningfully interruptive” of their presence in the United States and, therefore, should not be considered as breaking the continuity of their ten-year stay in this country. The distinction between defining a “break in the continuity of physical presence” under 8 U.S.C. § 1254 and defining an “entry” under § 101(a)(13) of the Immigration and Nationality Act is not significant, so a similar test applies. Wadman v. INS, 329 F.2d at 815. In defining “entry” under § 101(a)(13), the Supreme Court held that there must be an intent to depart in a manner regarded as meaningfully interruptive of an alien’s permanent residence. Rosenberg v. Fleuti, 374 U.S. 449, 462, 83 S.Ct. 1804, 10 L.Ed.2d 1000 (1963). The relevant factors for the court to consider are: (1) the length of the absence; (2) the purpose of the visit; and (3) the necessity of travel documents. The length of the absence is not absolutely determinative of whether the absence is meaningfully interruptive. See Toon-Ming Wong v. INS, 363 F.2d 234, 236 (9th Cir. 1966)." }, { "docid": "12529740", "title": "", "text": "to grounds for deportation when the alien returns unless some element of the alien’s state of mind at the time of. the departure subjected him to the charge that he left the country with the intention to interrupt his residential status. Any other holding would make a mockery of Fleuti’s humanities. Unless our immigration laws receive a compassionate interpretation and concomitant administration, our country will no longer be the haven inscribed upon the Statue of Liberty for the huddled masses, tired and poor, yearning to breathe free. While we cannot condone petitioner’s criminal activity in this case, he has been tried and convicted of his crimes in federal court and the further sanction of deportation with all of its familial and other hardships, should not be imposed unless clearly authorized by the statute. Let us not exalt every migrant’s deviation from rectitude into illegal “entries” within the statutory definition. SolisDavila should not be stretched beyond its facts, lest Fleuti become a legal desuetude. Our immigration laws do not require the rigoristic rigidity urged upon us by the Immigration and Naturalization Service. Under Fleuti and its progeny in this circuit, the failure of the Government to show a criminal purpose prior to petitioner’s departure is fatal to its case. Being unable to find an “entry” within the meaning of the statute, we cannot allow the deportation to stand. The petition is therefore granted, the deportation order vacated, and its enforcement enjoined. Reversed. . The history and evolution of the term “entry” is traced by the Supreme Court in Rosenberg v. Fleuti, supra. See also H.R.Rep. No. 1365, 82nd Cong. 2d Sess. 32 (1952) ; S.Rep. No. 1137, 82nd Cong. 2d Sess. 4. . Petitioner’s two-day visit is clearly not, under tlie case law, indicative of an intention to abdicate residential status. Itzcovitz v. Selective Service Local Bd. No. C, 2 Cir. 1971, 447 F.2d 888 (return after three week absence not an entry) ; Wadman v. INS, 9 Cir. 1964, 329 F.2d 812 (five days) ; Zimmerman v. Lehmann, 7 Cir. 1965, 339 F.2d 943, cert. denied, 381 U.S. 925, 85" }, { "docid": "8439827", "title": "", "text": "which can be regarded as meaningfully interruptive of the alien’s permanent residence.” Id. at 462, 83 S.Ct. at 1812. Factors relevant in finding such an interruption included the length of the absence, the purpose of the visit, and whether an object of the visit was to “accomplish some object ... contrary to some policy reflected in our immigration laws.” Id. The “brief, casual and innocent” absence doctrine was extended to cases involving suspension of deportation, provided for in 8 U.S.C. § 1254, in Wadman v. INS, 329 F.2d 812 (9th Cir.1964). In Wadman, the Ninth Circuit was required to decide if a five-day absence from the United States on a vacation in Mexico was interruptive of the seven-year period of continuous physical presence in the United States necessary to obtain a suspension of deportation. The circuit found that there was no significant distinction between the concept of “entry” central to Fleuti and the “continuous physical presence” requirement they faced. Id. at 815-16. The court held that “continuous” was “no more subject to a hard and fast construction than is the term ‘intended.’ The question is whether the interruption, viewed in balance with its consequences, can be said to have been a significant one under the guides laid down in Fleuti.” Id. at 816. The court also concluded that the question was one of fact, not of law. Id. For our purposes, it is not unimportant to note that the court in Wadman held that strict construction of section 244 was “peculiarly inappropriate” because the apparent purpose of the section was to enable the Attorney General to “ameliorate hardship and injustice which otherwise would result from a strict and technical application of the law.” Id. at 816-177. The court decided that a strict construction would frustrate this purpose, while a “liberal construction ... would simply tend to increase the scope of the Attorney General’s review and thus his power to act in amelioration of hardship.” Id. at 817. The similarity between the congressional purpose in section 244 as described in Wad-man and that underlying section 245A of IRCA is quite apparent." }, { "docid": "4432284", "title": "", "text": "in those two decisions. 374 U.S. at 458-459, 83 S.Ct. at 1810 (footnote omitted). The decision concludes, significantly for our case, “that it effectuates congressional purpose to construe the intent exception to § 101(a) (13) as meaning an intent to depart in a manner which can be regarded as meaningfully interruptive of the alien’s permanent residence.” 374 U.S. at 462, 83 S.Ct. at 1812. The Court mentions three factors —the length of time of absence, the purpose of the visit, and the necessity of procuring travel documents, id., but leaves the development of these and “other possibly relevant” factors to “ ‘the gradual process of judicial inclusion and exclusion,’ Davidson v. New Orleans, 96 U.S. 97, 104 * * *., 24 L.Ed. 616.” 374 U.S. at 462, 83 S.Ct. at 1812. That process helps to point the way for us. The Ninth Circuit, following Di Pasquale and Fleuti, supra, in Wadman v. INS, 329 F.2d 812 (9th Cir. 1964), held that a five day absence from the United States by an alien vacationing in Mexico was not an interruption of “continuous” physical presence permitting deportation. Even more apposite, perhaps, is the Seventh Circuit decision in Zimmerman v. Lehmann, 339 F.2d 943 (7th Cir.), cert. denied, 381 U.S. 925, 85 S.Ct. 1559, 14 L.Ed.2d 683 (1965). There the court, quoting at length from Fleuti, held that neither a five- or six-day “harmless, innocent” vacation in Canada in 1952 nor a less than 24-hour trip to Canada in 1953 constituted an illegal “entry” within § 101(a) (13) of the Immigration and Nationality Act of 1952. We believe the Congressional purpose underlying the Act would best be served by a similar holding here. The time factor is, to be sure, longer than in Zimmerman, Wadman or Fleuti, but it is still limited to three weeks, and is fairly characterized as only temporary. The purpose of Itzcovitz’s planned trip is in a real sense for the benefit of his employer; he is not merely vacationing, as were the petitioners in the other cases just mentioned. True, he doesn’t have to go, but whether he" }, { "docid": "8439826", "title": "", "text": "provide substantially more guidance in construing the phrase. As noted above, the phrase “brief, casual, and innocent” had a meaning which developed in immigration case law over a 21-year period, beginning with the Supreme Court’s decision in Rosenberg v. Fleuti, 374 U.S. 449, 83 S.Ct. 1804, 10 L.Ed.2d 1000 (1963). In Fleuti, the Supreme Court held that a permanent resident alien who had made an afternoon trip to Mexico had not made an “entry” within the meaning of § 101(a)(13) of the INA, 8 U.S.C. § 1101(a)(13) and therefore was not excludable. The Court held that such a trip, if it was “innocent, casual, and brief” was not an “intended” departure within the meaning of the statute. Id. at 461, 83 S.Ct. at 1811-12. The Court relied in part upon the “general purpose of Congress in enacting § 101(a)(13) to ameliorate the severe effects of the strict ‘entry’ doctrine.” Fleuti at 461-62, 83 S.Ct. at 1812. It concluded that the exception to § 101(a)(13) was construed “as meaning an intent to depart in a manner which can be regarded as meaningfully interruptive of the alien’s permanent residence.” Id. at 462, 83 S.Ct. at 1812. Factors relevant in finding such an interruption included the length of the absence, the purpose of the visit, and whether an object of the visit was to “accomplish some object ... contrary to some policy reflected in our immigration laws.” Id. The “brief, casual and innocent” absence doctrine was extended to cases involving suspension of deportation, provided for in 8 U.S.C. § 1254, in Wadman v. INS, 329 F.2d 812 (9th Cir.1964). In Wadman, the Ninth Circuit was required to decide if a five-day absence from the United States on a vacation in Mexico was interruptive of the seven-year period of continuous physical presence in the United States necessary to obtain a suspension of deportation. The circuit found that there was no significant distinction between the concept of “entry” central to Fleuti and the “continuous physical presence” requirement they faced. Id. at 815-16. The court held that “continuous” was “no more subject to a hard and" }, { "docid": "5273242", "title": "", "text": "1000; Itzcovitz v. Selective Service Local Bd. No. 6, N.Y., N.Y. (2d Cir. 1971), 447 F.2d 888, 891 — 92; Zimmerman v. Lehmann (7th Cir. 1965), 339 F.2d 943, 947-49.) We conclude that section 1182(a) is not applicable to petitioner, and that exclusion proceedings were therefore inappropriate because petitioner was not an alien seeking “entry” into the United States in May 1970. At the time of his attempted return to the United States petitioner had already been granted the status of permanent resident alien. His brief visit to Mexico did not manifest “an intent to depart in a manner which can be regarded as meaningfully interruptive of the alien’s permanent residence.” (Rosenberg v. Fleuti, supra, 374 U.S. at 462, 83 S.Ct. at 1812.) Thus petitioner was not subject to exclusion proceedings. To deprive petitioner of the benefit of deportation proceedings in the determination of his case merely because of his brief visit across the border would do violence to both the letter and the spirit of Fleuti: “[A]n innocent, casual, and brief excursion by a resident alien outside this country’s borders may not have been ‘intended’ as a departure disruptive of his resident alien status and therefore may not subject him to the consequences of an ‘entry’ into the country on his return.” 374 U.S. at 462, 83 S.Ct. at 1812. (See also Itzcovitz v. Selective Service Local Bd. No. 6, supra, 447 F.2d at 891—94; Zimmerman v. Lehmann, supra, 339 F.2d at 947—49; cf. Wadman v. Immigration & Naturalization Service (9th Cir. 1964), 329 F.2d 812, 815-16.) When evidence appears, during an exclusion proceeding, that the alien has been theretofore granted residence status and is seeking to return to the United States after a brief visit outside the United States, the exclusion proceeding shall be terminated. If there is also evidence that the alien may have fraudulently secured his residence status, the INS can thereupon institute deportation proceedings against him. The order of the Board of Immigration Appeals is vacated and this case is remanded for proceedings consistent with the views herein expressed. . Section 1182(a) provides in relevant" }, { "docid": "13335826", "title": "", "text": "I.&N.S., 9 Cir., 1966, 363 F.2d 234, 236 (holding that the issue of continuous presence under Fleuti and 8 U.S.C. § 1254(a) (1) was not determined solely by looking at the length of visit); Git Foo Wong v. I.&N.S., 9 Cir., 1966, 358 F.2d 151, 153 (holding that an innocent visit to Mexico for two hours should not he regarded as meaningfully interruptive of continuous presence in the United States under 8 U.S.C. § 1254(a) (1)); Wadman v. I.&N.S., 9 Cir., 1964, 329 F.2d 812 (holding that the Fleuti standard applied to 8 U.S.C. § 1254(a)(1) and remanding for a determination of whether a five-day vacation meaningfully interrupted continuous presence); Itzcovitz v. Selective Service Local Board No. 6 N.Y., N.Y., 2 Cir., 1971, 447 F.2d 888, 893-894 (holding that- a three-week trip to attend a training course, required by an employer is not a meaningful interruption under Fleuti and would not result in an entry under 8 U.S.C. § 1101(a) (13)); Zimmerman v. Lehmann, 7 Cir., 1965, 339 F.2d 943, 949 (holding no entry within 8 U.S.C. § 1101(a) (13) after either of two short trips to Canada). HUFSTEDLER, Circuit Judge (dissenting) : I adopt the following portion of Judge Lucas’ memorandum opinion as my own: “[Petitioner’s intention at his departure from the United States on or about December 11, 1970, was not so disposed as to regard it to be meaningfully inter-ruptive of his permanent residence status within this country. Rosenberg v. Fleuti, 374 U.S. 449 [83 S.Ct. 1804, 10 L.Ed.2d 1000] (1963). In arriving at this conclusion, [I] take into consideration the length of his absence being only two and one-half days; the absence of any demonstration of criminal intent being formed prior to or during his departure from this country; and the failure to make arrangements for a stay of significant duration in a foreign state. [I] also take into account the additional factors of his youth, of the absence of a former criminal record, and of the absence of prior departures from this country. Rosenberg, supra, 374 U.S. at 462 [83 S.Ct. 1804]. “Furthermore, [I] find" }, { "docid": "5945526", "title": "", "text": "and Austria were not “meaningfully interruptive” of their presence in the United States and, therefore, should not be considered as breaking the continuity of their ten-year stay in this country. The distinction between defining a “break in the continuity of physical presence” under 8 U.S.C. § 1254 and defining an “entry” under § 101(a)(13) of the Immigration and Nationality Act is not significant, so a similar test applies. Wadman v. INS, 329 F.2d at 815. In defining “entry” under § 101(a)(13), the Supreme Court held that there must be an intent to depart in a manner regarded as meaningfully interruptive of an alien’s permanent residence. Rosenberg v. Fleuti, 374 U.S. 449, 462, 83 S.Ct. 1804, 10 L.Ed.2d 1000 (1963). The relevant factors for the court to consider are: (1) the length of the absence; (2) the purpose of the visit; and (3) the necessity of travel documents. The length of the absence is not absolutely determinative of whether the absence is meaningfully interruptive. See Toon-Ming Wong v. INS, 363 F.2d 234, 236 (9th Cir. 1966). For instance, an absence for a few days, except for an unlawful purpose, generally is not meaningfully interruptive. See, e. g. Cuevas-Cuevas v. INS, 523 F.2d 883, 884 (9th Cir. 1975); Maldonado-Sandoval v. INS, 518 F.2d 278, 280-81 (9th Cir. 1975); Zimmerman v. Lehmann, 339 F.2d 943, 944 (7th Cir. 1965), cert. denied, 381 U.S. 925, 85 S.Ct. 1559, 14 L.Ed.2d 683 (1965). If an alien is absent for several weeks or more, however, the courts usually look more carefully at other factors such as purpose, intent to remain, distance traveled, voluntariness of trip, necessity of travel documents, the alien’s knowledge of the consequences of the trip and how many members of the family were absent from this country. Compare Mamanee v. INS, 566 F.2d 1103, 1105 (9th Cir. 1977); MunozCasarez v. INS, 511 F.2d 947, 948 (9th Cir. 1975); and Heitland v. INS, 551 F.2d 495, 500-504 (2d Cir.), cert. denied, 434 U.S. 819, 98 S.Ct. 59, 54 L.Ed.2d 75 (1977) with Toon Ming Wong v. INS, 363 F.2d at 235-36 (9th Cir. 1966);" }, { "docid": "4180869", "title": "", "text": "hard and fast construction than is the term “intended”. Wadman v. I&NS, 329 F.2d 812, 816 (CA9, 1964). Here, we are concerned with the meaning of the word “continuous”, as used in 8 U.S.C. § 1254(a)(1). One of the guidelines emphasized in Fleuti is “The purpose of the visit . . . .” It is there said, “ . . . for if the purpose of leaving the country is to accomplish some object which is itself contrary to some policy reflected in our immigration laws, it would appear that the interruption of residence thereby occurring would probably be regarded as meaningful.” Fleuti, supra, 374 U.S. p. 462, 83 S.Ct. p. 1812. This guideline was recognized and utilized by us in Toon-Ming Wong v. I&NS, 363 F.2d 234, 235 (CA 9, 1966). There, in speaking on the subject, we said: “On the other hand, a very brief absence might suffice if voluntary and accompanied by a realization of possible consequences to the alien’s status as a United States resident, particularly if the journey abroad were motivated by a purpose inconsistent with the policies of the Act.” p. 236. (Emphasis supplied.) Petitioner’s departures, although termed “voluntary”, were in fact coerced by threats of deportation. For the time being, in each instance, she accepted the lesser of two evils. In no way can petitioner’s coerced departures be equated to the voluntary actions before the court in Fleuti and other such cases. For that matter, it is crystal clear that the alleged voluntary departures were the result of an implied agreement that petitioner would not return. Otherwise, there would be no reason behind the procedure of voluntary departures in lieu of deportation proceedings. The fact that the officials did not seize petitioner’s border crossing card, which permitted her to reenter forthwith, is of no significance. In the final analysis, the question posed is “Whether the interruption, viewed in balance with its consequences, can be said to have been a significant one under the guides laid down in Fleuti.” Wadman, supra,, 329 F.2d p. 816. We answer in the affirmative. Judgment affirmed. . 8" } ]

[ { "docid": "14356880", "title": "", "text": "Rule 11 in failing to inform Roch of his fine range? (3) Did the district court err in imposing a fine on Roch? Because of our decision regarding Roch’s Fourth Amendment claim, we do not address the second or third issue. 1. Burden of Proof In reviewing a district court’s ruling on a motion to suppress, we accept findings of fact unless clearly erroneous, but review de novo the ultimate conclusion on Fourth Amendment issues drawn from those facts. United States v. Diaz, 977 F.2d 163, 164 (5th Cir.1992), United States v. Casteneda, 951 F.2d 44, 47 (5th Cir.1992). While in general, on a motion to suppress, the defendant has the burden of proving, by a preponderance of the evidence, that the material in question was seized in violation of his constitutional rights, there are several situations where the burden shifts to the government. United States v. De La Fuente, 548 F.2d 528, 533 (5th Cir.), cert. denied 431 U.S. 932, 97 S.Ct. 2640, 53 L.Ed.2d 249 (1977). As stated in De La Fuente, one of the other situations where the government bears the ultimate burden of proof is: if a defendant produces evidence that he was arrested or subject to search without a warrant, the burden shifts to the government to justify the warrantless search. 548 F.2d at 533. Consequently, in the present case, where the facts are undisputed that the arrest and seizures were made without benefit of warrants of any kind, we hold the government bears the burden of proving it had reasonable suspicion to seize Roch. 2. Reasonable Suspicion In analyzing this case, we start with the determination that the actions taken by the arresting officer escalated instantly beyond what can be categorized as an “investigative stop.” Roch voluntarily stopped his truck in a gas station and was outside his vehicle when police arrived on the scene. No questions were asked and no actions by Roch occurred which could be interpreted as a threat to the officer. The first words spoken by the police officer who had his gun drawn was a command for Roch to" } ]

[ { "docid": "19940278", "title": "", "text": "of fact subject to reversal only for clear error.”). Subsequent panels have specifically applied this standard, while others, in reciting the fact/law dichotomy have not obviated our clear error precedent. Nor did the Supreme Court overrule Valdiosera-Godinez, either implicitly or explicitly, in Ornelas. 517 U.S. 690, 116 S.Ct. 1657, 134 L.Ed.2d 911. Ornelas held that a determination as to whether an acknowledged seizure comported with the requirements of the Fourth Amendment was entitled to de novo review. It did not address the standard by which a determination as to whether a seizure actually occurred in the first place, thereby triggering Fourth Amendment protections, is to be reviewed. We are unaware of any Supreme Court decision that establishes a rule of law inconsistent with our Circuit precedent. See Causeway Med. Suite v. Ieyoub, 109 F.3d 1096, 1103 (5th Cir.1997)(“for a panel of this court to overrule a prior decision, we have required a Supreme Court decision that ... establishes a rule of law inconsistent with our own”), overruled by Okpalobi v. Foster, 244 F.3d 405 (5th Cir.2001)(en banc)(overruling Iey-oub on other grounds). As applicable as the rationales for the Ornelas decision may or may not be to the seizure determination, this panel is not at liberty to take a fresh assessment of the question. See Central Pines Land Co., 274 F.3d at 893-94; United States v. Kirk, 528 F.2d 1057, 1063 (5th Cir.1976). Therefore, we are obligated to follow Valdiosera-Godinez and review seizure determinations as we do findings of fact. As with all factual determinations, a district court’s seizure determination is not entitled to deference if it is influenced by an incorrect view of the law. United States v. Blount, 98 F.3d 1489, 1495 & n. 16 (5th Cir.1996)(holding that because district court’s search determination was influenced by incorrect view of the law, factual findings on the issue were due no deference), rev’d en banc, 123 F.3d 831 (5th Cir.1997)(reversingSiow%i on other grounds); United States v. Holloway, 962 F.2d 451, 454 (5th Cir.1992). Because we conclude that the district court’s determination that Mask was illegally seized was influenced by an incorrect" }, { "docid": "5568996", "title": "", "text": "the result of a racial profiling scheme violative of Fourteenth Amendment equal protection guarantees. After a hearing, the district court granted Chavez’s motion to suppress on Fourth Amendment grounds. The court observed that the initial encounter in which the officers requested to see Chavez’s license and commission was constitutionally permissible, but found that Chavez was “temporarily detained to ascertain whether he was legally carrying a permit for the firearm.” Finding that there was no sufficiently particularized reason to further question Chavez once he provided the requested documentation, the court concluded that the officers lacked reasonable suspicion to continue their questioning. On this basis, the court entered an order dismissing the indictment with prejudice. The government timely filed a notice of appeal. Counsel for Chavez conceded in his brief and at oral argument that the district court’s dismissal of the indictment was erroneous. II. A. In considering a ruling on a motion to suppress, we review the district court’s factual findings for clear error and its legal conclusions, including its ultimate conclusion as to the constitutionality of the law enforcement action, de novo. United States v. Carreon-Palacio, 267 F.3d 381, 387 (5th Cir.2001). We view the evidence in the light most favorable to the party that prevailed in the district court — in this case, Chavez. United States v. Jordan, 232 F.3d 447, 448 (5th Cir.2000). 1. The government contends that Chavez’s entire encounter with law enforcement authorities, including his interaction with agent Perez, was merely a police-citizen encounter that did not rise to the level of a Fourth Amendment seizure. Chavez conceded in the district court that his initial encounter with the deputies in which they asked him for his license and commission did not offend the Fourth Amendment. However, Chavez urged, and the district court agreed, that the encounter was transformed into a detention subject to Fourth Amendment protection when the deputies, after receiving satisfactory proof of his identification and authority to carry a weapon, took Chavez to agent Perez for further questioning. Not every encounter between a citizen and a police officer implicates the Fourth Amendment. INS v." }, { "docid": "19940277", "title": "", "text": "United States, 517 U.S. 690, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996) requires us to review such questions de novo. Mask responds that our precedents have consistently reviewed seizure determinations for clear error, and Ornelas does not compel us to disregard our established precedent. We agree with the appellee. The rules of intra-circuit stare decisis require us to abide by a prior panel decision until the decision is overruled, expressly or implicitly, by the Supreme Court or by the Fifth Circuit sitting en banc. Central Pines Land Co. v. United States, 274 F.3d 881, 893-94 (5th Cir.2001); United States v. Garcia Abrego, 141 F.3d 142; 151 n. 1 (5th Cir.1998). Despite the Government’s assertions to the contrary, our Circuit is not split on the proper standard by which seizure determinations are to be reviewed. In United States v. Valdiosera-Godinez, we definitively established clear error review for such findings. 932 F.2d 1093, 1098 n. 1 (5th Cir.1991) (“We now hold that a district court’s determination that a seizure has or has not occurred is a finding of fact subject to reversal only for clear error.”). Subsequent panels have specifically applied this standard, while others, in reciting the fact/law dichotomy have not obviated our clear error precedent. Nor did the Supreme Court overrule Valdiosera-Godinez, either implicitly or explicitly, in Ornelas. 517 U.S. 690, 116 S.Ct. 1657, 134 L.Ed.2d 911. Ornelas held that a determination as to whether an acknowledged seizure comported with the requirements of the Fourth Amendment was entitled to de novo review. It did not address the standard by which a determination as to whether a seizure actually occurred in the first place, thereby triggering Fourth Amendment protections, is to be reviewed. We are unaware of any Supreme Court decision that establishes a rule of law inconsistent with our Circuit precedent. See Causeway Med. Suite v. Ieyoub, 109 F.3d 1096, 1103 (5th Cir.1997)(“for a panel of this court to overrule a prior decision, we have required a Supreme Court decision that ... establishes a rule of law inconsistent with our own”), overruled by Okpalobi v. Foster, 244 F.3d 405 (5th" }, { "docid": "4040125", "title": "", "text": "According to the government, the circumstances, when viewed in their totality, support a conclusion that the initial conversations were not seizures. There is no indication from the facts of the initial stop of Gonzales that the agents made any display of authority beyond identifying themselves or attempted to control Gonzales’s movement. In U.S. v. Galberth, 846 F.2d 983, 989 (5th Cir.), cert. denied 488 U.S. 865, 109 S.Ct. 167, 102 L.Ed.2d 137 (1988), this Circuit upheld a lower court finding that an encounter was consensual where the police merely identified themselves, requested identification and asked questions. See also U.S. v. Encarnacion-Galvez, 964 F.2d 402, 410 (5th Cir.) (encounter consensual where police just identified themselves, requested proof of citizenship, but did not attempt to block movement of defendant), cert. denied 506 U.S. 945, 113 S.Ct. 391, 121 L.Ed.2d 299 (1992); U.S. v. Valdiosera-Godinez, 932 F.2d 1093, 1099 and n. 2 (5th Cir.) (neither the fact that the DEA agents identified themselves nor the presence of other officers automatically converted encounters into an investigatory detention), cert. denied 508 U.S. 921, 113 S.Ct. 2369, 124 L.Ed.2d 275 (1993). There is one troubling element: the officers informed Gonzales that the car he was driving was suspected of being used to transport drugs. This may have pushed the encounter, which was initially consensual, to being a Terry stop. This Circuit, in Galberth, 846 F.2d at 990 n. 11, noted that a statement by a law enforcement officer that an individual is suspected of illegal activity is persuasive evidence that the fourth amendment has been implicated. See also Valdiosera-Godinez, 932 F.2d at 1099 (citing U.S. v. Berry, 670 F.2d 583, 597 (5th Cir. Unit B 1982) (statement by officer that “‘individuals are suspected of smuggling drugs’ ” is a factor to be given great weight in determining whether the stop was investigative detention)). The statement by the agent in the instant case about Gonzales’s car being suspected may have implicated the Fourth Amendment. However, as discussed below, the agents like ly had reasonable suspicion to detain him at that point anyway and the stop still appears," }, { "docid": "19940279", "title": "", "text": "Cir.2001)(en banc)(overruling Iey-oub on other grounds). As applicable as the rationales for the Ornelas decision may or may not be to the seizure determination, this panel is not at liberty to take a fresh assessment of the question. See Central Pines Land Co., 274 F.3d at 893-94; United States v. Kirk, 528 F.2d 1057, 1063 (5th Cir.1976). Therefore, we are obligated to follow Valdiosera-Godinez and review seizure determinations as we do findings of fact. As with all factual determinations, a district court’s seizure determination is not entitled to deference if it is influenced by an incorrect view of the law. United States v. Blount, 98 F.3d 1489, 1495 & n. 16 (5th Cir.1996)(holding that because district court’s search determination was influenced by incorrect view of the law, factual findings on the issue were due no deference), rev’d en banc, 123 F.3d 831 (5th Cir.1997)(reversingSiow%i on other grounds); United States v. Holloway, 962 F.2d 451, 454 (5th Cir.1992). Because we conclude that the district court’s determination that Mask was illegally seized was influenced by an incorrect view of the applicable legal test, its conclusion in this regard is not due any deference, and will therefore be reviewed de novo. See discussion infra Part II.B.l. Finally, we view the evidence in the light most favorable to the party prevailing below, appellee Mask. United States v. Boone, 67 F.3d 76, 77 (5th Cir.1995). This is particularly necessary when, as in this case, the trier of fact was able to make credibility determinations based upon live testimony produced during the course of a hearing. Id. B. Was There An Illegal Seizure? 1. It is undisputed that from the point when Callahan took Mask’s driver’s license, until he returned it three to five minutes later and told Mask that he was free to leave, Mask had been legally detained for purposes of the Fourth Amendment. The question on appeal is whether the district court correctly determined that although Mask was free to go after his license had been returned to him, he was once again seized, this time without reasonable suspicion, upon Officer Clampitt’s arrival," }, { "docid": "19940292", "title": "", "text": "Conclusion The district court erred in finding that Mask was seized in violation of the Fourth Amendment. The evidence that was discovered on Mask’s person and in his vehicle was thus not tainted by an illegal seizure, and Mask’s motion to dismiss should have been denied. We therefore REVERSE the district court’s order and REMAND for further proceedings. . Mask did not testify at the suppression hearing. There is therefore no testimony from him that he overheard Callahan’s request or the repeated report. Further, no testimony was developed to suggest that the request was made loudly or under circumstances where Mask was likely to hear it. . At some point in time, Officer Guthrie, Callahan's partner, arrived on the scene. He soon left, however, at Clampitt’s instruction. . The district court also found that in the absence of the illegal seizure, the evidence obtained from Mask’s person and vehicle was otherwise admissible. Upon the discovery of the cash and drugs in Tubbs's vehicle, the court concluded that the officers had reasonable suspicion to detain and conduct a pat-down search of Mask. The subsequent im-poundment and inventory search of Mask's vehicle were therefore deemed reasonable following his arrest. These findings are supported by the record and were not appealed. . The Supreme Court noted in Ornelas that the phrase \"abuse of discretion” is preferable to \"clear error” when denoting the deferential standard applied to determinations of reasonable suspicion or probable cause. 517 U.S. at 695 n. 3, 116 S.Ct. 1657. The phrase \"clear error,” however, pervades our Circuit’s case law, and for the sake of consistency, we will continue to use it in this opinion. . See United States v. Butler, 988 F.2d 537, 541 (5th Cir.l993)(quoting Valdiosera-Godinez for the proposition that seizure determinations are reviewed for clear error); United States v. Encarnacion-Galvez, 964 F.2d 402, 410 (5th Cir.1992)(same); United States v. Holloway, 962 F.2d 451, 454 (5th Cir.1992) (same); United States v. Silva, 957 F.2d 157, 158 (5th Cir.1992)(same). . See United States v. Chavez, 281 F.3d 479, 483 (5th Cir.2002)(reciting the standard recitation that factual findings are reviewed for" }, { "docid": "9734891", "title": "", "text": "of him, with Detective Hanson behind him and Detective Cassidy ‘downfield,’ and asked to search the defendant’s bag.” 695 F.Supp. 1223, 1225 (D.D.C.1988). In reversing the finding of the trial court, this court substitutes its judgment for that of the trial judge who was in the best position to assess witness credibility and to evaluate whether the totality of the circumstances indicated that the defendant had been seized. Because a determination of whether a seizure has occurred is essentially a fact-based endeavor, appellate courts should not reverse the trial court’s conclusion unless it is clearly erroneous. The record contains more than sufficient facts to support a finding that a seizure occurred in this case. I dissent from the majority’s reversal of this finding. Several of our sister circuits have recognized explicitly that the question of whether the police “seized” a person is essentially factual. In this vein they have espoused the “clearly erroneous” standard of review, which attends all district court findings of historical fact, when reviewing fourth amendment seizure determinations. See United States v. Rose, 889 F.2d 1490 (6th Cir.1989); United States v. Gray, 883 F.2d 320, 322 (4th Cir.1989); United States v. Teslim, 869 F.2d 316, 321 (7th Cir.1989); United States v. Archer, 840 F.2d 567, 571 (8th Cir.1988), cert. denied, — U.S. -, 109 S.Ct. 364, 102 L.Ed.2d 354 (1988); United States v. Erwin, 803 F.2d 1505, 1508 (9th Cir.1982); United States v. Gooding, 695 F.2d 78, 82 (4th Cir.1982); United States v. Patino, 649 F.2d 724, 728 (9th Cir.1981). The factual question of whether a seizure has occurred should not be confused with the legal conclusion of whether the seizure was lawful. See, e.g., United States v. Mines, 883 F.2d 801, 803 (9th Cir.1989) (“findings of fact” reviewed under clearly erroneous standard, while “[t]he ultimate conclusion of the lawfulness of a seizure” reviewed “de novo”); United States v. Campbell, 843 F.2d 1089, 1092 (8th Cir.1988) (same). Contrary to the suggestion of the majority, the Supreme Court has not explicitly identified the trial court’s determination of whether a fourth amendment seizure has occurred as a finding of" }, { "docid": "10552938", "title": "", "text": "because the government declined to stipulate to its admissibility. The hearsay affidavit was only admissible to the extent the parties agreed to its admissibility. We find no error in the court’s refusal to admit the affidavit in its entirety. III. The appellant next argues that the district court erred in overruling his motion to suppress evidence because the officers lacked reasonable suspicion in seizing appellant. For purposes of reviewing the district court’s ruling at a suppression hearing we accept the court’s factual findings “unless they are clearly erroneous or are influenced by an incorrect view of the law.” United States v. Simmons, 918 F.2d 476, 479 (5th Cir.1990). Agent Munday stopped appellant because he matched a description of an individual who exhibited suspicious behavior in the Ontario airport. The court found that the initial contact between the agents and appellant constituted “mere communication,” which does not implicate the Fourth Amendment. See United States v. Hanson, 801 F.2d 757, 761 (5th Cir.1986). We have held that a “simple stop,” consisting of a request for identification and a plane ticket, does not constitute a seizure. United States v. Galberth, 846 F.2d 983, 989-90 (5th Cir.), cert. denied, 488 U.S. 865, 109 S.Ct. 167, 102 L.Ed.2d 137 (1988). The court found that a seizure occurred when appellant handed Agent Munday his airline ticket and identification card bearing two different names, and that the seizure was justified and supported by reasonable suspicion. “[A] district court’s determination that a seizure has or has not occurred is a finding of fact subject to reversal only for clear error.” United States v. Valdiosera-Godinez, 932 F.2d 1093, 1098 n. 1 (5th Cir.1991). Accepting the court’s finding that a seizure occurred, we must determine whether the officers’ detention was supported by reasonable suspicion. “Reasonable suspicion must be supported by specific and articulable facts which, taken together with rational inferences from those facts, would warrant a person of reasonable caution in the belief that the intrusion was appropriate.” Simmons, 918 F.2d at 481 (citing Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 1879, 20 L.Ed.2d 889 (1968)). Agent" }, { "docid": "19940276", "title": "", "text": "that they were free to go. The court concluded, however, that Mask’s continued presence ceased to be voluntary upon the arrival of Sergeant Clampitt, or in the alternative, when Clampitt found Tubbs’s shotgun. Because there was no reasonable suspicion at either point to hold Mask, the court determined that Mask had been illegally seized, and the evidence of drug trafficking found during the course of the pat-down and subsequent inventory search of Mask’s vehicle were fruit of that illegality. The Government’s Motion for Reconsideration was summarily denied on April 19, 2002. II. Discussion A. Standard of Review A district court’s factual findings are reviewed for clear error on appeal, while its legal conclusions, including its ultimate conclusion as to the constitutionality of a law enforcement action, are reviewed de novo. United States v. Chavez, 281 F.3d 479, 483 (5th Cir.2002). The parties dispute where, along this simple dichotomy, seizure determinations lie. The Government contends that this Circuit has split on the standard it applies to seizure determinations, and the Supreme Court’s decision in Ornelas v. United States, 517 U.S. 690, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996) requires us to review such questions de novo. Mask responds that our precedents have consistently reviewed seizure determinations for clear error, and Ornelas does not compel us to disregard our established precedent. We agree with the appellee. The rules of intra-circuit stare decisis require us to abide by a prior panel decision until the decision is overruled, expressly or implicitly, by the Supreme Court or by the Fifth Circuit sitting en banc. Central Pines Land Co. v. United States, 274 F.3d 881, 893-94 (5th Cir.2001); United States v. Garcia Abrego, 141 F.3d 142; 151 n. 1 (5th Cir.1998). Despite the Government’s assertions to the contrary, our Circuit is not split on the proper standard by which seizure determinations are to be reviewed. In United States v. Valdiosera-Godinez, we definitively established clear error review for such findings. 932 F.2d 1093, 1098 n. 1 (5th Cir.1991) (“We now hold that a district court’s determination that a seizure has or has not occurred is a finding" }, { "docid": "19940293", "title": "", "text": "conduct a pat-down search of Mask. The subsequent im-poundment and inventory search of Mask's vehicle were therefore deemed reasonable following his arrest. These findings are supported by the record and were not appealed. . The Supreme Court noted in Ornelas that the phrase \"abuse of discretion” is preferable to \"clear error” when denoting the deferential standard applied to determinations of reasonable suspicion or probable cause. 517 U.S. at 695 n. 3, 116 S.Ct. 1657. The phrase \"clear error,” however, pervades our Circuit’s case law, and for the sake of consistency, we will continue to use it in this opinion. . See United States v. Butler, 988 F.2d 537, 541 (5th Cir.l993)(quoting Valdiosera-Godinez for the proposition that seizure determinations are reviewed for clear error); United States v. Encarnacion-Galvez, 964 F.2d 402, 410 (5th Cir.1992)(same); United States v. Holloway, 962 F.2d 451, 454 (5th Cir.1992) (same); United States v. Silva, 957 F.2d 157, 158 (5th Cir.1992)(same). . See United States v. Chavez, 281 F.3d 479, 483 (5th Cir.2002)(reciting the standard recitation that factual findings are reviewed for clear error and \"ultimate” legal conclusions regarding the constitutionality of law enforcement actions are reviewed de novo, without classifying seizure determinations as one or the other); United States v. Carreon-Palacio, 267 F.3d 381, 387 (5th Cir.2001)(same); United States v. Cooper, 43 F.3d 140, 145 (5th Cir.l995)(same); United States v. Roch, 5 F.3d 894, 897 (5th Cir.1993)(same); United States v. Diaz, 977 F.2d 163, 164 (5th Cir.1992)(same). In a footnote, the panel in United States v. Boone observed that the two different approaches are evidence of an intra-circuit split. 67 F.3d 76, 77 n. 1 (5th Cir.1995). However, the general statement that \"ultimate conclusions” on Fourth Amendment issues are subject to de novo review is entirely consistent with Valdiosera-Godinez, which held that a seizure determination is a finding of fact. 932 F.2d at 1098 n. 1. . The Fourth, and nominally Seventh Circuits, share our position. See United States v. Gray, 883 F.2d 320 (4th Cir.1989)(holding that seizure determinations are questions of fact subject to clearly erroneous review on appeal); United States v. Teslim, 869 F.2d" }, { "docid": "20324654", "title": "", "text": "PATRICK E. HIGGINBOTHAM, Circuit Judge: Elwin Boone pled guilty to possessing marijuana with intent to distribute and to carrying a firearm while committing a drug-related offense. Boone reserved his right to appeal the district judge’s denial of his motion to suppress the marijuana and the gun. In response to Boone’s exercise of his right, we affirm. The facts concern an, encounter between law enforcement officials and Boone, and Boone’s challenge rests on the Fourth Amendment. In such a case, our role is well settled. We accept the district court’s findings of fact unless they are clearly erroneous or influenced by an incorrect view of the law. United States v. Garcia, 849 F.2d 917, 917 n. 1 (5th Cir.1988). We view the evidence in the light most favorable to the party prevailing below, id.,. and we keep these principles most firmly in mind when reviewing “credibility determinations!;,] because the trier of fact has seen and judged the witnesses.” United States v. Breeland, II, 53 F.3d 100, 103 (5th Cir.1995) (internal quotation omitted). We review de novo the district court’s ultimate conclusions on Fourth Amendment issues. United States v. Diaz, 977 F.2d 163, 164 (5th Cir.1992). But see United States v. Valdiosera-Godinez, 932 F.2d 1093, 1098 n. 1 (5th Cir.1991) (holding that appellate courts should apply the clear error standard to a trial court’s determination of whether a seizure occurred), cert. denied, — U.S. -, 113 S.Ct. 2369, 124 L.Ed.2d 275 (1993). We pause to note that these preliminary statements are more than boilerplate. We do not sit to resolve conflicts in descriptions of events. We do not find compelling arguments based on “facts” inconsistent with those found by a district judge on the basis of credible oral testimony, even when another credible witness presents contradictory evidence. Boone’s primary argument is that his encounter with Customs Agent Moorehouse constituted an illegal seizure because law enforcement officials did not possess reasonable suspicion of wrongdoing. See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The district court held that the encounter did not constitute a seizure and therefore that" }, { "docid": "20713657", "title": "", "text": "v. Smith, 203 F.3d 884, 893 (5th Cir.2000); United States v. Ehrlich, 902 F.2d 327, 330 (5th Cir. 1990). This court recently applied de novo review to whether the defendant held a position of trust. See United States v. Kay, 513 F.3d 432, 460 (5th Cir.2007)[, cert. denied, 555 U.S. 813, 129 S.Ct. 42, 172 L.Ed.2d 21 (2008)]. The panel in Kay, 513 F.3d at 460 & n. 125, relied on United States v. Sudeen, 434 F.3d 384, 391 n. 19 (5th Cir.2005), which based its statement on United States v. Hussey, 254 F.3d 428, 431 (2d Cir.2001), after observing that the standard of review would not affect its decision. De novo review appears foreclosed, however, by this circuit’s earlier ruling that a “district court’s application of § 3B1.3 is a sophisticated factual determination that will be affirmed unless clearly erroneous.” [Ehrlich, 902 F.2d at 330.] Despite whatever persuasiveness Kay and Sudeen may have, our rule of orderliness directs that “‘one panel of this court cannot overrule the decision of another panel.’ ” [Lowrey v. Tex. A&M Univ. Sys., 117 F.3d 242, 247 (5th Cir.1997).] Id. (footnotes omitted). Therefore, the standard of review used by the court in this case — clear error — is the correct one, see supra Per Curiam Op. at 248, based on earliest case controls, see Matter of Howard, 972 F.2d 639, 641 (5th Cir.1992). It is not just in the context of § 3B1.3 enhancements that we have been inconsistent in our standard of review for Guidelines enhancements. I have previously written about the intra-circuit split as to “whether the determination that [U.S.S.G.] § 3Cl.l’s [obstruction of justice] requirements are met is ... a question of fact” or a question of law and what the corresponding standard of review is — a question that has also produced an inter-circuit split. See United States v. Claiborne, 676 F.3d 434, 439 n. 1 (5th Cir.2011) (Prado, J., concurring). Broadly framed, the issue is whether adjustments under Section 3 of the Guidelines are questions of law reviewed de novo or questions of fact reviewed for clear error." }, { "docid": "16203872", "title": "", "text": "subsequent seizure of the luggage. See id. at 1530 (reasonable suspicion resulting from defendant’s untruthful answers proper only if questioning of defendant was voluntary, consensual encounter); United States v. Santillanes, 848 F.2d 1103, 1108 (10th Cir.1988) (statement made by defendant during illegal detention could not be considered in determining reasonable suspicion for further detention). See also Florida v. Royer, 460 U.S. 491, 507-08, 103 S.Ct. 1319, 1329-30, 75 L.Ed.2d 229 (1983) (plurality opinion) (defendant’s consent to search luggage tainted by illegal detention and therefore ineffective to justify search). Accordingly, we initially address the Ward issue and find it to be dispositive of Defendant’s appeal. III. In denying Defendant’s suppression motion, the district court concluded that Defendant was not seized during either encounter prior to his arrest and that he voluntarily provided the information requested by Agent Small. While we review the district court’s factual finding of whether Defendant was seized under the clearly erroneous standard, United States v. Werking, 915 F.2d 1404, 1409 (10th Cir.1990), “the ultimate issue of whether a seizure occurred is a question of law.” United States v. Ward, 961 F.2d 1526, 1534 (10th Cir.1992) (citations omitted). Here, the facts are undisputed; accordingly, our review is de novo. See United States v. Jordan, 958 F.2d 1085, 1086 (D.C.Cir.1992); United States v. McKines, 933 F.2d 1412, 1426 (8th Cir.) (en banc), cert. denied, — U.S. -, 112 S.Ct. 593, 116 L.Ed.2d 617 (1991); United States v. Montilla, 928 F.2d 583, 588 (2d Cir.1991). But see United States v. Silva, 957 F.2d 157, 158 (5th Cir.), petition for cert. filed, No. 92-5259 (U.S. July 21, 1992); United States v. Wilson, 895 F.2d 168, 171 (4th Cir.1990); United States v. Rose, 889 F.2d 1490, 1495 (6th Cir.1989); United States v. Teslim, 869 F.2d 316, 321 (7th Cir.1989). The Supreme Court has delineated three types of police-citizen encounters: (1) consensual encounters which do not implicate the Fourth Amendment, see, e.g., Michigan v. Chesternut, 486 U.S. 567, 574-76, 108 S.Ct. 1975, 1979-81, 100 L.Ed.2d 565 (1988); INS v. Delgado, 466 U.S. 210, 218-21, 104 S.Ct. 1758, 1763-65, 80 L.Ed.2d 247 (1984); (2)" }, { "docid": "20324655", "title": "", "text": "the district court’s ultimate conclusions on Fourth Amendment issues. United States v. Diaz, 977 F.2d 163, 164 (5th Cir.1992). But see United States v. Valdiosera-Godinez, 932 F.2d 1093, 1098 n. 1 (5th Cir.1991) (holding that appellate courts should apply the clear error standard to a trial court’s determination of whether a seizure occurred), cert. denied, — U.S. -, 113 S.Ct. 2369, 124 L.Ed.2d 275 (1993). We pause to note that these preliminary statements are more than boilerplate. We do not sit to resolve conflicts in descriptions of events. We do not find compelling arguments based on “facts” inconsistent with those found by a district judge on the basis of credible oral testimony, even when another credible witness presents contradictory evidence. Boone’s primary argument is that his encounter with Customs Agent Moorehouse constituted an illegal seizure because law enforcement officials did not possess reasonable suspicion of wrongdoing. See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The district court held that the encounter did not constitute a seizure and therefore that no reasonable suspicion was needed. We agree with the court below. Boone’s first contention is that the district court committed clear error by crediting the law enforcement officers’ version of the events because of alleged contradictions in the officers’ testimony. We disagree. Those contradictions that actually existed dealt with details irrelevant to the issue of whether a seizure occurred. One concerned whether agents communicated orally or with hand motions. Another focused on the fact that an officer outside a bus could not hear conversation inside, but an officer inside the bus could hear conversation outside. A third consists of the fact that an officer in a police report wrote that agents boarding the bus identified themselves as law enforcement, but on cross-examination he admitted that he was presuming that the agents did so from his knowledge of standard procedure. None of these differences in the description of events bears a connection to the facts relevant to a Terry analysis, and they are not sufficiently egregious or numerous to allow an appellate court to overrule a" }, { "docid": "13739095", "title": "", "text": "explicit, was nevertheless voluntary. Conclusion Having reexamined the issues presented by Mr. Mills in light of the decision of the Supreme Court in Ornelas, we believe that the district court committed no reversible error. Accordingly, the judgment of the district court is affirmed. Affirmed. . This case establishes, in light of intervening Supreme Court authority, a new standard of review for the voluntariness of the waiver of Fifth Amendment Miranda rights. Accordingly, pursuant to Circuit Rule 40(e), it has been circulated to the entire court. No judge favored a rehearing en banc on this issue. . Judge Coffey's view recently has been followed by Chief Judge Wilkinson of the Fourth Circuit in United States v. Howard, 115 F.3d 1151, 1154 (4th Cir.1997). . See 2d Circuit: United States v. Lynch, 92 F.3d 62, 65 (2d Cir.1996) (de novo review of waiver of constitutional rights; clear error review of underlying factual findings); 3d Circuit: United States v. Sriyuth, 98 F.3d 739, 748-49 (3d Cir.1996) (plenary review of whether waiver was voluntary, knowing and intelligent; clear error review of factual findings), cert. denied,-U.S.-, 117 S.Ct. 1016, 136 L.Ed.2d 892 (1997); 4th Circuit: United States v. Guay, 108 F.3d 545, 549 (4th Cir.1997) (de novo review of determination of voluntariness of Miranda rights waiver; clear error review of findings of fact); 5th Circuit: United States v. Flores, 63 F.3d 1342, 1363 (5th Cir.1995) (de novo review of ultimate conclusion of voluntariness; clear error review of findings of fact with respect to Miranda waiver), cert. denied,-U.S.-, 117 S.Ct. 87, 136 L.Ed.2d 43 (1996); 6th Circuit: United States v. Rigsby, 943 F.2d 631, 635 (6th Cir.1991) (rejecting clear error review of waiver of Miranda rights; treating it like review of voluntariness of a confession), cert. denied, 503 U.S. 908, 112 S.Ct. 1269, 117 L.Ed.2d 496 (1992); 8th Circuit: United States v. Byrne, 83 F.3d 984, 989 (8th Cir.1996) (de novo review of knowing and voluntary waiver of Fifth Amendment rights; clear error review of factual findings); United States v. Makes Room, 49 F.3d 410, 414 (8th Cir.1995) (same); 9th Circuit: United States v. Cazares, 112" }, { "docid": "23303560", "title": "", "text": "See United States v. Rose, 889 F.2d 1490, 1495 (6th Cir.1989) (district court’s finding of no seizure not clearly erroneous); United States v. Gray, 883 F.2d 320, 322 (4th Cir.1989) (finding of fourth amendment seizure involves question of fact and cannot be reversed unless clearly erroneous); United States v. Teslim, 869 F.2d 316, 321 (7th Cir.1989) (determination of seizure under reasonable person test highly factual; apply clearly erroneous standard.) As indicated, two recent circuit cases have adopted de novo review. See Montilla, 928 F.2d 583; Maragh, 894 F.2d at 417. Our own cases are inconsistent or simply unclear. Several of our cases hold that we review this issue under the clearly erroneous standard. See, e.g., Jefferson, 906 F.2d at 348 (“[W]e will not reverse a district court’s finding that a fourth amendment seizure occurred unless the finding is clearly erroneous.”); United States v. Archer, 840 F.2d 567, 571 (8th Cir.) (“[W]e apply the clearly erroneous standard to review the district court’s determinations, made in the context of a motion to suppress, as to whether a fourth amendment seizure occurred.”), cert. denied, 488 U.S. 941, 109 S.Ct. 364, 365, 102 L.Ed.2d 354 (1988); United States v. Hendrix, 726 F.2d 433, 434 (8th Cir.1984) (district court’s finding that no seizure occurred not clearly erroneous). On the other hand, several of our cases can be read to hold that we review de novo the district court’s legal characterization of historical facts. See, e.g., Condelee, 915 F.2d at 1209 (“We review de novo the legal issue of whether Condelee’s detention violated the fourth amendment.”); Hernandez, 854 F.2d at 297 (“[T]he ultimate conclusion of whether the fourth amendment has been violated is subject to de novo review.”); United States v. Campbell, 843 F.2d 1089, 1092 (8th Cir.1988) (same). Given that the one consistent, dominant theme in each of the Supreme Court’s cases applying the Mendenhall test is the Court’s emphasis on the fact-intensive nature of the inquiry, we think that the district court’s determination is essentially one of fact. In determining the facts nec essary to support a finding of seizure, the district court will" }, { "docid": "7824468", "title": "", "text": "1448, 1454 (10th Cir.1985) (defendant’s upbringing in Argentina, which instilled an acquiéscence to police authority, is relevant to whether a person would feel unable to terminate the encounter). We agree with United States v. McKines, 933 F.2d 1412, 1424-26 (8th Cir.) (en banc), cert. denied, - U.S. -, 112 S.Ct. 593, 116 L.Ed.2d 617 (1991), that Supreme Court cases compel the conclusion that the ultimate issue of whether a seizure occurred is a question of law. See also Bostick, 111 S.Ct. at 2392 (Marshall, J., dissenting); United States v. Montilla, 928 F.2d 583, 588 (2d Cir.1991); United States v. Lewis, 921 F.2d 1294, 1297 (D.C.Cir.1990). But see United States v. Valdiosera-Godinez, 932 F.2d 1093, 1098 n. 1 (5th Cir.1991); United States v. Rose, 889 F.2d 1490, 1495 (6th Cir.1989); United States v. Gray, 883 F.2d 320, 322 (4th Cir.1989); United States v. Teslim, 869 F.2d 316, 321 (7th Cir.1989). Based on the totality of the circumstances, we hold that defendant was seized for purposes of the Fourth Amendment during the initial encounter in the train roomette, specifically at the time when, without informing defendant of his right to terminate the encounter, the detective first began to ask defendant potentially incriminating questions. Ill The detective searched defendant’s roomette, his shoulder bag, and his boots without finding anything incriminating during the initial encounter that we have found to be an unlawful seizure. After the officers acquired the information about the two tan bags, they decided to seek any keys defendant had. It was the luggage key defendant produced pursuant to the agent’s request that led to the marijuana in the luggage defendant seeks to have suppressed. We hold that this discovery is tainted and the fruit of the Fourth Amendment violation. “Evidence seized in a search conducted during an illegal detention must be suppressed unless there is sufficient attenuation between the detention and the consent to search.\" United States v. Turner, 928 F.2d 956, 958 (10th Cir.), cert. denied, - U.S. -, 112 S.Ct. 230, 116 L.Ed.2d 187 (1991). “This [cjircuit has held that when a consent to search is preceded by" }, { "docid": "19940294", "title": "", "text": "clear error and \"ultimate” legal conclusions regarding the constitutionality of law enforcement actions are reviewed de novo, without classifying seizure determinations as one or the other); United States v. Carreon-Palacio, 267 F.3d 381, 387 (5th Cir.2001)(same); United States v. Cooper, 43 F.3d 140, 145 (5th Cir.l995)(same); United States v. Roch, 5 F.3d 894, 897 (5th Cir.1993)(same); United States v. Diaz, 977 F.2d 163, 164 (5th Cir.1992)(same). In a footnote, the panel in United States v. Boone observed that the two different approaches are evidence of an intra-circuit split. 67 F.3d 76, 77 n. 1 (5th Cir.1995). However, the general statement that \"ultimate conclusions” on Fourth Amendment issues are subject to de novo review is entirely consistent with Valdiosera-Godinez, which held that a seizure determination is a finding of fact. 932 F.2d at 1098 n. 1. . The Fourth, and nominally Seventh Circuits, share our position. See United States v. Gray, 883 F.2d 320 (4th Cir.1989)(holding that seizure determinations are questions of fact subject to clearly erroneous review on appeal); United States v. Teslim, 869 F.2d 316 (7th Cir.1989)(same); United States v. Sholo-la, 124 F.3d 803, 811 (7th Cir.1997)(calling into doubt the appropriateness of review for \"clear error”). The Second, Sixth, Eighth, and D.C. Circuits have reached the opposite conclusion. United States v. Maragh, 894 F.2d 415, 417 (D.C.Cir.1990)(holding that seizure determinations are reviewed de novo); United States v. Montilla, 928 F.2d 583, 588 (2d Cir.1991)(same); United States v. McKines, 933 F.2d 1412, 1424-25 (8th Cir.1991)(en banc)(7-3 decision)(same); United States v. Buchanon, 72 F.3d 1217, 1222 (6th Cir.1995)(same). . See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); United States v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980); Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983); I.N.S. v. Delgado, 466 U.S. 210, 104 S.Ct. 1758, 80 L.Ed.2d 247 (1984); Michigan v. Chestemut, 486 U.S. 567, 108 S.Ct. 1975, 100 L.Ed.2d 565 (1988); California v. Hodari D., 499 U.S. 621, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991); Florida v. Bostick, 501 U.S. 429, 111 S.Ct. 2382, 115 L.Ed.2d" }, { "docid": "6504534", "title": "", "text": "unreasonable seizure in violation of the Fourth Amendment. After an evidentiary hearing the district court denied the motion, holding that the contact between the Border Patrol agents and Encarnacion-Galvez was not a seizure requiring reasonable suspicion, but only a casual contact. The court further held that if the contact was a stop that required reasonable suspicion, the agents’ experience and knowledge of the traits of illegal aliens met that requirement. Encarnacion-Galvez argues that the contact was a Terry stop that must have been supported by reasonable suspicion. He relies on United States v. Berry, 670 F.2d 583, 591 (5th Cir. Unit B 1982) (en banc), which held that a seizure occurs if, under all of the circumstances, a reasonable person would not have believed that he was free to leave. Encarnacion-Galvez contends that when agent Torrez questioned him after Ramirez had stepped out of the vehicle, a reasonable person in his position would not have believed he was free to go because (1) agent Torrez did not inform Encarnacion-Galvez that he was free to leave and (2) Encarnacion-Galvez could not leave without Ramirez, who had left the vehicle. Encarnacion-Galvez also argues that although Torrez’s identification as a law enforcement officer was not by itself sufficient to establish coercion, it contributed to Encarnacion-Galvez’s belief that he was not free to leave. “[A] district court’s determination that a seizure has or has not occurred is a finding of fact subject to reversal only for clear error.” United States v. Valdiosera-Godinez, 932 F.2d 1093, 1098, n. 1 (5th Cir. 1991). Other than identifying themselves as Border Patrol agents, the agents made no display of authority. They did not stop Encarnacion-Galvez’s vehicle, but approached it only after Encarnacion-Galvez had parked it. The agents did not park their vehicle in such a way that would block Encarnacion-Galvez’s path if he chose to drive or walk away. The agents only asked Encarnacion-Galvez and Ramirez for identification and verification of their citizenship. We conclude that the dealings between the agents and Encarnacion-Galvez involved no coercion or detention, and that the district court’s determination that no seizure occurred" }, { "docid": "7824467", "title": "", "text": "pouch visible to defendant; and the officers used a regular tone of voice. All these factors we regard as neutral or favoring a consensual encounter. Other facts, however, support the conclusion that defendant was seized. Defendant immediately knew that he was outnumbered by at least two officers; the presence of more than one officer increases the .coerciveness of an encounter. See Mendenhall, 446 U.S. at 554, 100 S.Ct. at 1877. Defendant testified that the officers’ questions were “real blunt” and “real direct.” III R. 12; cf. United States v. Savage, 889 F.2d 1113, 1115, 1117 (D.C.Cir.1989) (encounter in train roomette became seizure when officers' questions became “direct and probably forceful”). Defendant is five feet, seven inches tall and weighs 145 pounds; he had recently undergone a kidney transplant for which he was still taking medication. Defendant’s slight physique and health problems would tend to suggest that defendant was more easily intimidated than some other persons; the personal traits of an individual are relevant to the issue of coercion. See United States v. Recalde, 761 F.2d 1448, 1454 (10th Cir.1985) (defendant’s upbringing in Argentina, which instilled an acquiéscence to police authority, is relevant to whether a person would feel unable to terminate the encounter). We agree with United States v. McKines, 933 F.2d 1412, 1424-26 (8th Cir.) (en banc), cert. denied, - U.S. -, 112 S.Ct. 593, 116 L.Ed.2d 617 (1991), that Supreme Court cases compel the conclusion that the ultimate issue of whether a seizure occurred is a question of law. See also Bostick, 111 S.Ct. at 2392 (Marshall, J., dissenting); United States v. Montilla, 928 F.2d 583, 588 (2d Cir.1991); United States v. Lewis, 921 F.2d 1294, 1297 (D.C.Cir.1990). But see United States v. Valdiosera-Godinez, 932 F.2d 1093, 1098 n. 1 (5th Cir.1991); United States v. Rose, 889 F.2d 1490, 1495 (6th Cir.1989); United States v. Gray, 883 F.2d 320, 322 (4th Cir.1989); United States v. Teslim, 869 F.2d 316, 321 (7th Cir.1989). Based on the totality of the circumstances, we hold that defendant was seized for purposes of the Fourth Amendment during the initial encounter in the train" } ]

[ { "docid": "22343367", "title": "", "text": "action is eliminated from the system.” 402 U. S., at 31-32 (emphasis added). That statement recognizes on the one hand that a fully desegregated school system may not be compelled to adjust its attendance zones to conform to changing demographic patterns. But on the other hand, it also appears to recognize that until such a unitary system is established, a district court may act with broad discretion — discretion which includes the adjustment of attendance zones — so that the goal of a wholly unitary system might be sooner achieved. In insisting that the District Court largely abandon its scrutiny of attendance patterns, the Court might well be insuring that a unitary school system in which segregation has been eliminated “root and branch,” Green v. County School Board, 391 U. S. 430, 438 (1968), will never be achieved in Pasadena. For at the point that the Pasadena system is in compliance with the aspects of the plan specifying procedures for hiring and promoting teachers and administrators, it may be that the attendance patterns within the system will be such as to once again manifest substantial aspects of a segregated system. It seems to me singularly unwise for the Court to risk such a result. We have held that “[o]nce a right and a violation have been shown, the scope of a district court's equitable powers to remedy past wrongs is broad, for breadth and flexibility are inherent in equitable remedies.” Swann v. Board of Education, supra, at 15. As the Court recognizes, ante, at 432, there is no issue before us as to the validity of the District Court’s original judgment that unconstitutional segregation existed in the Pasadena school system. Thus, there is no question as to there being both a “right and a violation.” Moreover, at least as of the time that the District Court acted on the request for modification, the violation had not yet been entirely remedied. Particularly, given the breadth of discretion normally accorded a district court in fashioning equitable remedies, I see no reason to require the District Court in a case such as this" } ]

[ { "docid": "7342020", "title": "", "text": "language was suitable to the small rural county before the Court in that case, where there were only two schools and 1,300 schoolchildren of both races scattered throughout the county. But it makes no sense to apply that statement to the Dallas Independent School District or any major metropolitan school district. In large cities, the principal cause of segregation in the schools is residential segregation, which results largely from demographic and economic conditions over which school authorities have no control. E. g., Pasadena City Bd. of Education v. Spangler, 427 U. S., at 435-437; see Keyes v. School Dist. No. 1, Denver, Colo., 413 U. S. 189, 222-223 (1973) (Powell, J., concurring in part and dissenting in part). In cases since Green, the Court has stated ex plicitly that the existence of “predominantly white or predominantly black [schools,] without more,. . . does not offend the Constitution.\" Dayton Bd. of Education v. Brinkman, 433 U. S. 406, 417 (1977); Milliken II, supra, at 280, n. 14; Swann v. Charlotte-Mecklenburg Bd. of Education, 402 U. S., at 26. It is puzzling that many trial and appellate courts continue to misapply Green and largely to ignore more recent statements on this issue. The important distinction is between “desegregated” schools and “integrated” schools. There can be no legitimate claim that “racial balance” in the public schools is constitutionally required. Milliken v. Bradley, 418 U. S. 717, 740-741 (1974) (Milliken I). Rather, the Constitution mandates that no school system be structured to segregate the races. The proposition was stated fully in Swann: “Our objective in dealing with the issues presented by these cases is to see that school authorities exclude no pupil of a racial minority from any school, directly or indirectly, on account of race; it does not and cannot embrace all the problems of racial prejudice, even when those problems contribute to disproportionate racial concentrations in some schools.” 402 U. S., at 23. The question in these cases, as in countless others, is how equitably to remedy unconstitutional state action or inaction. A desegregation decree “must be designed as nearly as possible" }, { "docid": "22702162", "title": "", "text": "justification will remain constant. This is as it should be, since those political judgments are the product of rough compromise struck by contending groups within the democratic process. When they touch upon an individual’s race or ethnic background, he is entitled to a judicial determination that the burden he is asked to bear on that basis is precisely tailored to serve a compelling governmental interest. The Constitution guarantees that right to every person regardless of his background. Shelley v. Kraemer, 334 U. S., at 22; Missouri ex rel. Gaines v. Canada, 305 U. S., at 351. c Petitioner contends that on several occasions this Court has approved preferential classifications without applying the most exacting scrutiny. Most of the cases upon which petitioner relies are drawn from three areas: school desegregation, employment discrimination, and sex discrimination. Each of the cases cited presented a situation materially different from the facts of this case. The school desegregation cases are inapposite. Each involved remedies for clearly determined constitutional violations. E. g., Swann v. Charlotte-Mecklenburg Board of Education, 402 U. S. 1 (1971); McDaniel v. Barresi, 402 U. S. 39 (1971); Green v. County School Board, 391 U. S. 430 (1968). Racial classifications thus were designed as remedies for the vindication of constitutional entitlement. Moreover, the scope of the remedies was not permitted to exceed the extent of the violations. E. g., Dayton Board of Education v. Brinkman, 433 U. S. 406. (1977); Milliken v. Bradley, 418 U. S. 717 (1974); see Pasadena City Board of Education v. Spangler, 427 U. S. 424 (1976). See also Austin Independent School Dist. v. United States, 429 U. S. 990, 991-995 (1976) (Powell, J„ concurring). Here, there was no judicial determination of constitutional violation as a predicate for the formulation of a remedial classification. The employment discrimination cases also do not advance petitioner’s cause. For example, in Franks v. Bowman Transportation Co., 424 U. S. 747 (1976), we approved a retroactive award of seniority to a class of Negro truckdrivers who had been the victims of discrimination — not just by society at large, but by the respondent" }, { "docid": "22386465", "title": "", "text": "ethnic group over another, § 103 (f) (2) violates the equal protection component in the Due Process Clause of the Fifth Amendment. See Bolling v. Sharpe, 347 U. S. 497, 499 (1954). The Government does have a legitimate interest in ameliorating the disabling effects of identified discrimination. Bakke, supra, at 307; see, e. g., Keyes v. School District No. 1, Denver, Colo., 413 U. S. 189, 236 (1973) (Powell, J., concurring in part and dissenting in part); McDaniel v. Barresi, 402 U. S. 39, 41 (1971); North Carolina Board of Education v. Swann, 402 U. S. 43, 45-46 (1971); Green v. County School Board, 391 U. S. 430, 437-438 (1968). The existence of illegal discrimination justifies the imposition of a remedy that will “make persons whole for injuries suffered on account of unlawful . . . discrimination.” Albemarle Paper Co. v. Moody, 422 U. S. 405, 418 (1975). A critical inquiry, therefore, is whether § 103 (f) (2) was enacted as a means. of redressing such discrimination. But this Court has never approved race-conscious remedies absent judicial, administrative, or legislative findings of constitutional or statutory violations. Bakke, supra, at 307; see, e. g., Teamsters v. United States, 431 U. S. 324, 367-376 (1977); United Jewish Organizations v. Carey, 430 U. S. 144, 155-159 (1977) (opinion of White, J.); South Carolina v. Katzenbach, 383 U. S. 301, 308-315 (1966). Because the distinction between permissible remedial action and impermissible racial preference rests on the existence of a constitutional or statutory violation, the legitimate interest in creating a race-conscious remedy is not compelling unless an appropriate governmental authority has found that such a violation has occurred. In other words, two requirements must be met. First, the governmental body that attempts to impose a race-conscious remedy must have the authority to act in response to identified discrimination. Cf. Hampton v. Mow Sun Wong, 426 U. S. 88, 103 (1976). Second, the governmental body must make findings that demonstrate the existence of illegal discrimination. In Bakke, the Regents failed both requirements. They were entrusted only with educational functions, and they made no findings of past" }, { "docid": "22702245", "title": "", "text": "or control present decisions. See, e. g., Charlotte-Mecklenburg, supra, at 28. And the Court further held both that courts could enter desegregation orders which assigned students and faculty by reference to race, Charlotte-Mecklenburg, supra; Davis, supra; United States v. Montgomery County Board of Ed., 395 U. S. 225 (1969), and that local school boards could voluntarily adopt desegregation plans which made express reference to race if this was necessary to remedy the effects of past discrimination. McDaniel v. Barresi, supra. Moreover, we stated that school boards, even in the absence of a judicial finding of past discrimination, could voluntarily adopt plans which assigned students with the end of creating racial pluralism by establishing fixed ratios of black and white students in each school. Charlotte-Mecklenburg, supra, at 16. In each instance, the creation of unitary school systems, in which the effects of past discrimination had been “eliminated root and branch,” Creen, supra, at 438, was recognized as a compelling social goal justifying the overt use of race. Finally, the conclusion that state educational institutions may constitutionally adopt admissions programs designed to avoid exclusion of historically disadvantaged minorities, even when such programs explicitly take race into account, finds direct support in our cases construing congressional legislation designed to overcome the present effects of past discrimination. Congress can and has outlawed actions which have a disproportionately adverse and unjustified impact upon members of racial minorities and has required or authorized race-conscious action to put individuals disadvantaged by such impact in the position they otherwise might have enjoyed. See Franks v. Bowman Transportation Co., 424 U. S. 747 (1976); Teamsters v. United States, 431 U. S. 324 (1977). Such relief does not require as a predicate proof that recipients! of preferential advancement have been individually discrimi- \\ nated against; it is enough that each recipient is within a \\ general class of persons likely to have been the victims of dis- 1 crimination. See id., at 357-362. Nor is it an objection to J such relief that preference for minorities will upset the settled expectations of nonminorities. See Franks, supra. In addition, we have" }, { "docid": "22152545", "title": "", "text": "are such that no policy that a court can order, and a school board, a city or even a state has the capability to put into effect, will in fact result in the foreseeable future in racially balanced public schools. Only a reordering of the environment involving economic and social policy on the broadest conceivable front might have an appreciable impact.” A. Bickel, The Supreme Court and the Idea of Progress 132, and n. 47 (1970). Federal courts, including this Court today, continue to ignore these indisputable facts. Relying upon fictions and presumptions in school cases that are irreconcilable with principles of equal protection law applied in all other cases, see, e. g., Personnel Administrator of Massachusetts v. Feeney, 442 U. S. 256 (1979); Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U. S. 252 (1977); Washington v. Davis, 426 U. S. 229 (1976), federal courts prescribe systemwide remedies without relation to the causes of the segregation found to exist, and implement their decrees by requiring extensive transportation of children of all school ages. The type of state-enforced segregation that Brown I properly condemned no longer exists in this country. This is not to say that school boards — particularly in the great cities of the North, Midwest, and West — are taking all reasonable measures to provide integrated educational opportunities. As I indicated in my separate opinion in Keyes v. School Dist. No. 1, Denver, Colo., 413 U. S. 189, 223-236 (1973), de facto segregation has existed on a large scale in many of these cities, and often it is indistinguishable in effect from the type of de jure segregation outlawed by Brown. Where there is proof of intentional segregative action or inaction, the federal courts must act, but their remedies should not exceed the scope of the constitutional violation. Dayton Board of Education v. Brinkman, 433 U. S. 406 (1977); Austin Independent School Dist. v. United States, 429 U. S. 990, 991 (1976) (Powell, J., concurring); Pasadena City Board of Education v. Spangler, 427 U. S. 424 (1976); Milliken v. Bradley, 418 U. S. 717 (1974); Swann v." }, { "docid": "22047896", "title": "", "text": "of the remedy. It is clear that the presently mandated remedy cannot stand upon the basis of the violations found by the District Court. The District Court, in the first instance, subject to review by the Court of Appeals, must make new findings and conclusions as to violations in the light of this opinion, Washington v. Davis, 426 U. S. 229 (1976), and Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U. S. 252 (1977). It must then fashion a remedy in the light of the rule laid down in Swann, and elaborated upon in Hills v. Gautreaux, 425 U. S. 284 (1976). The power of the federal courts to restructure the operation of local and state governmental entities “is not plenary. It ‘may be exercised “only on the basis of a constitutional violation.” ’ [Milliken v. Bradley], 418 U. S., at 738, quoting Swann v. Charlotte-Mecklenburg Board of Education, 402 U. S. 1, 16. See Rizzo v. Goode, 423 U. S. 362, 377. Once a constitutional violation is found, a federal court is required to tailor ‘the scope of the remedy’ to fit ‘the nature and extent of the constitutional violation.’ 418 U. S., at 744; Swann, supra, at 16.” Id., at 293-294. See also Austin Independent School Dist. v. United States, 429 U. S. 990, 991 (1976) (Powell, J., concurring). The duty of both the District Court and the Court of Appeals in a case such as this, where mandatory segregation by law of the races in the schools has long since' ceased, is to first determine whether there was any action in the conduct of the business of the School Board which are intended to, and did in fact, discriminate against minority pupils, teachers, or staff. Washington v. Davis, supra. All parties should be free to introduce such additional testimony and other evidence as the District Court may deem appropriate. If such violations are found, the District Court in the first instance, subject to review by the Court of Appeals, must determine how much incremental segregative effect these violations had on the racial distribution of the Dayton" }, { "docid": "22386480", "title": "", "text": "has employed a racial classification solely as a means to confer a racial preference. Such a purpose plainly would be unconstitutional. Supra, at 497. Nor has Congress sought to employ a racially conscious means to further a nonracial goal. In such instances, a nonracial means should be available to further the legitimate governmental purpose. See Bakke, supra, at 310-311. Enactment of the set-aside is designed to serve the compelling governmental interest in redressing racial discrimination. As this Court has recognized, the implementation of any affirmative remedy for redress of racial discrimination is likely to affect persons differently depending upon their race. See, e. g., North Carolina Board of Education v. Swann, 402 U. S., at 45-46. Although federal courts may not order or approve remedies that exceed the scope of a constitutional violation, see Milliken v. Bradley, 433 U. S. 267, 280-281 (1977); Dayton Board of Education v. Brinkman, 433 U. S. 406 (1977); Austin Independent School District v. United States, 429 U. S. 990, 991 (1976) (Powell, J., concurring), this Court has not required remedial plans to be limited to the least restrictive means of implementation. We have recognized that the choice of remedies to redress racial discrimination is “a balancing process left, within appropriate constitutional or statutory limits, to the sound discretion of the trial court.” Franks v. Bowman Transportation Co., 424 U. S., at 794 (Powell, J., concurring in part and dissenting in part). I believe that the Enforcement Clauses of the Thirteenth and Fourteenth Amendments give Congress a similar measure of discretion to choose a suitable remedy for the redress of racial discrimination. The legislative history of § 5 of the Fourteenth Amendment is particularly instructive. Senator Howard, the member of the Joint Committee on Reconstruction who introduced the Amendment into the Senate, described § 5 as “a direct affirmative delegation of power to Congress to carry out all the principles of all [the] guarantees” of § 1 of the Amendment. Cong. Globe, 39th Cong., 1st Sess., 2766 (1866). Furthermore, he stated that § 5 “casts upon the Congress the responsibility of seeing to it, for" }, { "docid": "22702244", "title": "", "text": "of remedying the effects of past societal discrimination is, under our cases, sufficiently important to justify the use of race-conscious admissions programs where there is a sound basis for concluding that minority underrepresentation is substantial and chronic, and that the handicap of past discrimination is impeding access of minorities to the Medical School. A At least since Green v. County School Board, 391 U. S. 430 (1968), it has been clear that a public body which has itself been adjudged to have engaged in racial discrimination cannot bring itself into compliance with the Equal Protection Clause simply by ending its unlawful acts and adopting a neutral stance. Three years later, Swann v. Charlotte-Mecklenburg Board of Education, 402 U. S. 1 (1971), and its companion cases, Davis v. School Comm’rs of Mobile County, 402 U. S. 33 (1971); McDaniel v. Barresi, 402 U. S. 39 (1971); and North Carolina Board of Education v. Swann, 402 U. S. 43 (1971), reiterated that racially neutral remedies for past discrimination were inadequate where consequences of past discriminatory acts influence or control present decisions. See, e. g., Charlotte-Mecklenburg, supra, at 28. And the Court further held both that courts could enter desegregation orders which assigned students and faculty by reference to race, Charlotte-Mecklenburg, supra; Davis, supra; United States v. Montgomery County Board of Ed., 395 U. S. 225 (1969), and that local school boards could voluntarily adopt desegregation plans which made express reference to race if this was necessary to remedy the effects of past discrimination. McDaniel v. Barresi, supra. Moreover, we stated that school boards, even in the absence of a judicial finding of past discrimination, could voluntarily adopt plans which assigned students with the end of creating racial pluralism by establishing fixed ratios of black and white students in each school. Charlotte-Mecklenburg, supra, at 16. In each instance, the creation of unitary school systems, in which the effects of past discrimination had been “eliminated root and branch,” Creen, supra, at 438, was recognized as a compelling social goal justifying the overt use of race. Finally, the conclusion that state educational institutions may constitutionally" }, { "docid": "7342019", "title": "", "text": "County, 402 U. S. 33, 37 (1971). A court must act decisively to remove purposeful segregation, but it also must avoid the danger of inciting resegregation by unduly disrupting the public schools. Much of-the confusion that has plagued this litigation derives from neglect of these principles. The District Court failed to identify the link between the constitutional violation and the desegregation remedy, and the Court of Appeals showed little concern for either that problem or the question of effectiveness. Unless courts carefully consider those issues, judicial school desegregation will continue to be a haphazard exercise of equitable power that can, \"like a loose cannon, . . . inflict indiscriminate damage” on our schools and communities. A The opinion of the Court of Appeals focuses almost entirely on the one-race schools remaining in the School District. This preoccupation apparently derives from the oft-repeated language in Green v. County School Board, 391 U. S. 430, 442 (1968), that desegregation must create “a system without a ‘white’ school [or] a ‘Negro’ school.” As I have noted before, this language was suitable to the small rural county before the Court in that case, where there were only two schools and 1,300 schoolchildren of both races scattered throughout the county. But it makes no sense to apply that statement to the Dallas Independent School District or any major metropolitan school district. In large cities, the principal cause of segregation in the schools is residential segregation, which results largely from demographic and economic conditions over which school authorities have no control. E. g., Pasadena City Bd. of Education v. Spangler, 427 U. S., at 435-437; see Keyes v. School Dist. No. 1, Denver, Colo., 413 U. S. 189, 222-223 (1973) (Powell, J., concurring in part and dissenting in part). In cases since Green, the Court has stated ex plicitly that the existence of “predominantly white or predominantly black [schools,] without more,. . . does not offend the Constitution.\" Dayton Bd. of Education v. Brinkman, 433 U. S. 406, 417 (1977); Milliken II, supra, at 280, n. 14; Swann v. Charlotte-Mecklenburg Bd. of Education, 402 U. S.," }, { "docid": "22386479", "title": "", "text": "S., at 305. The conclusion that Congress found a compelling governmental interest in redressing identified discrimination against minority contractors therefore leads to the inquiry whether use of a 10% set-aside is a constitutionally appropriate means of serving that interest. In the past, this “means” test has been virtually impossible to satisfy. Only two of this Court’s modern cases have held the use of racial classifications to be constitutional. See Korematsu v. United States, 323 U. S. 214 (1944); Hirabayshi v. United States, 320 U. S. 81 (1943). Indeed, the failure of legislative action to survive strict scrutiny has led some to wonder whether our review of racial classifications has been strict in theory, but fatal in fact. See Gunther, The Supreme Court, 1971 Term — Foreword: In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection, 86 Harv. L. Rev. 1, 8 (1972). A Application of the “means” test necessarily demands an understanding of the type of congressional action at issue. This is not a case in which Congress has employed a racial classification solely as a means to confer a racial preference. Such a purpose plainly would be unconstitutional. Supra, at 497. Nor has Congress sought to employ a racially conscious means to further a nonracial goal. In such instances, a nonracial means should be available to further the legitimate governmental purpose. See Bakke, supra, at 310-311. Enactment of the set-aside is designed to serve the compelling governmental interest in redressing racial discrimination. As this Court has recognized, the implementation of any affirmative remedy for redress of racial discrimination is likely to affect persons differently depending upon their race. See, e. g., North Carolina Board of Education v. Swann, 402 U. S., at 45-46. Although federal courts may not order or approve remedies that exceed the scope of a constitutional violation, see Milliken v. Bradley, 433 U. S. 267, 280-281 (1977); Dayton Board of Education v. Brinkman, 433 U. S. 406 (1977); Austin Independent School District v. United States, 429 U. S. 990, 991 (1976) (Powell, J., concurring), this Court has not required" }, { "docid": "22627561", "title": "", "text": "the local authorities’ “affirmative duty to disestablish the dual school system[s],” such voluntary (that is, noncourt-ordered) measures as attendance zones drawn to achieve greater racial balance, and out-of-zone assignment by race for the same purpose. McDaniel v. Barresi, 402 U. S. 39, 40-41 (1971). While thus permitting the use of race to declassify racially classified students, teachers, and educational resources, however, we have also made it clear that the remedial power extends no further than the scope of the continuing constitutional violation. See, e. g., Columbus Board of Education v. Penick, supra, at 465; Dayton Board of Education v. Brinkman, 433 U. S. 406, 420 (1977); Milliken v. Bradley, 418 U. S. 717, 744 (1974); Keyes v. School Dist. No. 1, Denver, Colorado, supra, at 213. And it is implicit in our cases that after the dual school system has been completely disestablished, the States may no longer assign students by race. Cf. Pasadena City Board of Education v. Spangler, 427 U. S. 424 (1976) (federal court may not require racial assignment in such circumstances). Our analysis in Bazemore v. Friday, supra, reflected our unwillingness to conclude, outside the context of school assignment, that the continuing effects of prior discrimination can be equated with state maintenance of a discriminatory system. There we found both that the government’s adoption of “wholly neutral admissions” policies for 4-H and Homemaker Clubs sufficed to remedy its prior constitutional violation of maintaining segregated admissions, and that there was no further obligation to use racial reassignments to eliminate continuing effects — that is, any remaining all-black and all-white clubs. 478 U. S., at 407-408. “[H]owever sound Green [v. New Kent County School Board, supra] may have been in the context of the public schools,” we said, “it has no application to this wholly different milieu.” Id., at 408. The same is so here. A State can, of course, act “to undo the effects of past discrimination” in many permissible ways that do not involve classification by race. In the particular field of state contracting, for example, it may adopt a preference for small businesses, or even" }, { "docid": "22627560", "title": "", "text": "our school desegregation cases, in which we have made plain that States and localities sometimes have an obligation to adopt race-conscious remedies. While there is no doubt that those cases have taken into account the continuing “effects” of previously mandated racial school assignment, we have held those effects to justify a race-conscious remedy only because we have concluded, in that context, that they perpetuate a “dual school system.” We have stressed each school district’s constitutional “duty to dismantle its dual system,” and have found that “[e]ach instance of a failure or refusal to fulfill this affirmative duty continues the violation of the Fourteenth Amendment.” Columbus Board of Education v. Penick, supra, at 458-459 (emphasis added). Concluding in this context that race-neutral efforts at “dismantling the state-imposed dual system” were so ineffective that they might “indicate a lack of good faith,” Green v. New Kent County School Board, 391 U. S. 430, 439 (1968); see also Raney v. Board of Education of Gould School Dist., 391 U. S. 443 (1968), we have permitted, as part of the local authorities’ “affirmative duty to disestablish the dual school system[s],” such voluntary (that is, noncourt-ordered) measures as attendance zones drawn to achieve greater racial balance, and out-of-zone assignment by race for the same purpose. McDaniel v. Barresi, 402 U. S. 39, 40-41 (1971). While thus permitting the use of race to declassify racially classified students, teachers, and educational resources, however, we have also made it clear that the remedial power extends no further than the scope of the continuing constitutional violation. See, e. g., Columbus Board of Education v. Penick, supra, at 465; Dayton Board of Education v. Brinkman, 433 U. S. 406, 420 (1977); Milliken v. Bradley, 418 U. S. 717, 744 (1974); Keyes v. School Dist. No. 1, Denver, Colorado, supra, at 213. And it is implicit in our cases that after the dual school system has been completely disestablished, the States may no longer assign students by race. Cf. Pasadena City Board of Education v. Spangler, 427 U. S. 424 (1976) (federal court may not require racial assignment in such circumstances)." }, { "docid": "22325033", "title": "", "text": "particular community, but also creates mistrust, alienation, and all too often hostility toward the entire process of government”). Imposing a contemporaneous findings requirement would produce the anomalous result that what private employers may voluntarily do to correct apparent violations of Title VII, Steelworkers v. Weber, supra, public employers are constitutionally forbidden to do to correct their statutory and constitutional transgressions. Such results cannot, in my view, be justified by reference to the incremental value a contemporaneous findings requirement would have as an evidentiary safeguard. As is illustrated by this case, public employers are trapped between the competing hazards of liability to minorities if affirmative action is not taken to remedy apparent employment discrimination and liability to nonminorities if affirmative action is taken. Where these employers, who are presumably fully aware both of their duty under federal law to respect the rights of all their employees and of their potential liability for failing to do so, act on the basis of information which gives them a sufficient basis for concluding that remedial action is necessary, a contemporaneous findings requirement should not be necessary. This conclusion is consistent with our previous decisions recognizing the States’ ability to take voluntary race-conscious action to achieve compliance with the law even in the absence of a specific finding of past discrimination. See, e. g., United Jewish Organizations of Williamsburgh, Inc. v. Carey, 430 U. S. 144, 165-166 (1977) (reapportionment); McDaniel v. Barresi, 402 U. S. 39 (1971) (school desegregation). Indeed, our recognition of the responsible state actor’s competency to take these steps is assumed in our recognition of the States’ constitutional duty to take affirmative steps to eliminate the continuing effects of past unconstitutional discrimination. See, e. g., Swann v. Charlotte-Mecklenburg Board of Education, 402 U. S. 1, 15 (1971); Green v. New Kent County School Board, 391 U. S. 430, 437-438 (1968). Of course, as Justice Powell notes, the public employer must discharge this sensitive duty with great care; in order to provide some measure of protection to the interests of its nonminority employees and the employer itself in the event that its affirmative" }, { "docid": "22990391", "title": "", "text": "Atlanta, 350 U. S. 879 (1955) (per curiam) (golf courses); Mayor and City Council of Baltimore v. Dawson, 350 U. S. 877 (1955) (per curiam) (beaches). But with reference to schools, the effect of the legal wrong proved most difficult to correct. To remedy the wrong, school districts that had been segregated by law had no choice, whether under court supervision or pursuant to voluntary desegregation efforts, but to resort to extraordinary measures including individual student and teacher assignment to schools based on race. See, e. g., Swann v. Charlotte-Mecklenburg Bd. of Ed., 402 U. S. 1, 8-10 (1971); see also Croson, 488 U. S., at 519 (Kennedy, J., concurring in part and concurring in judgment) (noting that racial classifications “may be the only adequate remedy after a judicial determination that a State or its instrumentality has violated the Equal Protection Clause”). So it was, as the dissent observes, see post, at 814-815, that Louisville classified children by race in its school assignment and busing plan in the 1970’s. Our cases recognized a fundamental difference between those school districts that had engaged in de jure segregation and those whose segregation was the result of other factors. School districts that had engaged in de jure segregation had an affirmative constitutional duty to desegregate; those that were defacto segregated did not. Compare Green v. School Bd. of New Kent Cty., 391 U. S. 430, 437-438 (1968), with Milliken v. Bradley, 418 U. S. 717, 745 (1974). The distinctions between de jure and de facto segregation extended to the remedies available to governmental units in addition to the courts. For example, in Wygant v. Jackson Bd. of Ed., 476 U. S. 267, 274 (1986), the plurality noted: “This Court never has held that societal discrimination alone is sufficient to justify a racial classification. Rather, the Court has insisted upon some showing of prior discrimination by the governmental unit involved before allowing limited use of racial classifications in order to remedy such discrimination.” The Court’s decision in Croson, supra, reinforced the difference between the remedies available to redress de facto and de jure discrimination:" }, { "docid": "22152546", "title": "", "text": "type of state-enforced segregation that Brown I properly condemned no longer exists in this country. This is not to say that school boards — particularly in the great cities of the North, Midwest, and West — are taking all reasonable measures to provide integrated educational opportunities. As I indicated in my separate opinion in Keyes v. School Dist. No. 1, Denver, Colo., 413 U. S. 189, 223-236 (1973), de facto segregation has existed on a large scale in many of these cities, and often it is indistinguishable in effect from the type of de jure segregation outlawed by Brown. Where there is proof of intentional segregative action or inaction, the federal courts must act, but their remedies should not exceed the scope of the constitutional violation. Dayton Board of Education v. Brinkman, 433 U. S. 406 (1977); Austin Independent School Dist. v. United States, 429 U. S. 990, 991 (1976) (Powell, J., concurring); Pasadena City Board of Education v. Spangler, 427 U. S. 424 (1976); Milliken v. Bradley, 418 U. S. 717 (1974); Swann v. Charlotte-Mecklenburg Board of Education, 402 U. S. 1, 16 (1971). Systemwide remedies such as were ordered by the courts below, and today are approved by this Court, lack any principled basis when the absence of integration in all schools cannot reasonably be attributed to discriminatory conduct. Mr. Justice Rehnquist has dealt devastatingly with the way in which the Court of Appeals endowed prior precedents with new and wondrous meanings. I can add little to what he has said. I therefore move to more general but, in my view, important considerations that the Court simply ignores. II Holding the school boards of these two cities responsible for all of the segregation in the Dayton and Columbus sys-stems and prescribing fixed racial ratios in every school as the constitutionally required remedy necessarily implies a belief that the same school boards — under court supervision— will be capable of bringing about and maintaining the desired racial balance in each of these schools. The experience in city after city demonstrates that this is an illusion. The process of resegregation," }, { "docid": "22702296", "title": "", "text": "intended to prohibit all race-conscious relief measures. It “would be a distortion of the policy manifested in that amendment, which was adopted to prevent state legislation designed to perpetuate discrimination on the basis of race or color,” Railway Mail Assn. v. Corsi, 326 U. S. 88, 94 (1945), to hold that it barred state action to remedy the effects of that discrimination. Such a result would pervert the intent of the Framers by substituting abstract equality for the genuine equality the Amendment was intended to achieve. B As has been demonstrated in our joint opinion, this Court’s past cases establish the constitutionality of race-conscious remedial measures. Beginning with the school desegregation cases, we recognized that even absent a judicial or legislative finding of constitutional violation, a school board constitutionally could consider the race of students in making school-assignment decisions. See Swann v. Charlotte-Mecklenburg Board of Education, 402 U. S. 1, 16 (1971); McDaniel v. Barresi, 402 U. S. 39, 41 (1971). We noted, moreover, that a “fiat prohibition against assignment of students for the purpose of creating a racial balance must inevitably conflict with the duty of school authorities to disestablish dual school systems. As we have held in Swarm, the Constitution does not compel any particular degree of racial balance or mixing, but when past and continuing constitutional violations are found, some ratios are likely to be useful as starting points in shaping a remedy. An absolute prohibition against use of such a device — even as a starting point — contravenes the implicit command of Green v. County School Board, 391 U. S. 430 (1968), that all reasonable methods be available to formulate an effective remedy.” Board of Education v. Swann, 402 U. S. 43, 46 (1971). As we have observed, “[a]ny other approach would freeze the status quo that is the very target of all desegregation processes.” McDaniel v. Barresi, supra, at 41. Only last Term, in United Jewish Organizations v. Carey, 430 U. S. 144 (1977), we upheld a New York reapportionment plan that was deliberately drawn on the basis of race to enhance the electoral" }, { "docid": "22386464", "title": "", "text": "any governmental distinction among groups must be justifiable. Different standards of review applied to different sorts of classifications simply illustrate the principle that some classifications are less likely to be legitimate than others. Racial classifications must be assessed under the most stringent level of review because immutable characteristics, which bear no relation to individual merit or need, are irrelevant to almost every governmental decision. See, e. g., Anderson v. Martin, 375 U. S. 399, 402-404 (1964). In this case, however, I believe that § 103 (f) (2) is justified as a remedy that serves the compelling governmental interest in eradicating the continuing effects of past discrimination identified by Congress. HH Racial preference never can constitute a compelling state interest. “ ‘Distinctions between citizens solely because of their ancestry’ [are] ‘odious to a free people whose institutions are founded upon the doctrine of equality.’ ” Loving v. Virginia, supra, at 11. quoting Hirabayashi v. United States, 320 U. S. 81, 100 (1943). Thus, if the set-aside merely expresses a congressional desire to prefer one racial or ethnic group over another, § 103 (f) (2) violates the equal protection component in the Due Process Clause of the Fifth Amendment. See Bolling v. Sharpe, 347 U. S. 497, 499 (1954). The Government does have a legitimate interest in ameliorating the disabling effects of identified discrimination. Bakke, supra, at 307; see, e. g., Keyes v. School District No. 1, Denver, Colo., 413 U. S. 189, 236 (1973) (Powell, J., concurring in part and dissenting in part); McDaniel v. Barresi, 402 U. S. 39, 41 (1971); North Carolina Board of Education v. Swann, 402 U. S. 43, 45-46 (1971); Green v. County School Board, 391 U. S. 430, 437-438 (1968). The existence of illegal discrimination justifies the imposition of a remedy that will “make persons whole for injuries suffered on account of unlawful . . . discrimination.” Albemarle Paper Co. v. Moody, 422 U. S. 405, 418 (1975). A critical inquiry, therefore, is whether § 103 (f) (2) was enacted as a means. of redressing such discrimination. But this Court has never approved race-conscious remedies" }, { "docid": "22386430", "title": "", "text": "In McDaniel v. Barresi, 402 U. S. 39, 41 (1971), citing Swann, we observed: “In this remedial process, steps will almost invariably require that students be assigned ‘differently because of their race.’ Any other approach would freeze the status quo that is the very target of all desegregation processes.” (Citations omitted.) And in North Carolina Board of Education v. Swann, 402 U. S. 43 (1971), we invalidated a state law that absolutely forbade assignment of any student on account of race because it foreclosed implementation of desegregation plans that were designed to remedy constitutional violations. We held that “[j]ust as the race of students must be considered in determining whether a constitutional violation has occurred, so also must race be considered in formulating a remedy.” Id., at 46. In these school desegregation cases we dealt with the authority of a federal court to formulate a remedy for unconstitutional racial discrimination. However, the authority of a court to incorporate racial criteria into a remedial decree also extends to statutory violations. Where federal anti-discrimination laws have been violated, an equitable remedy may in the appropriate case include a racial or ethnic factor. Franks v. Bowman Transportation Co., 424 U. S. 747 (1976); see Teamsters v. United States, 431 U. S. 324 (1977); Albemarle Paper Co. v. Moody, 422 U. S. 405 (1975). In another setting, we have held that a state may employ racial criteria that are reasonably necessary to assure compliance with federal voting, rights legislation, even though the state action does not entail the remedy of a constitutional violation. United Jewish Organizations of Williamsburgh, Inc. v. Carey, 430 U. S. 144, 147-165 (1977) (opinion of White, J., joined by Brennan, Blackmun, and Stevens, JJ.); id., at 180-187 (Burger, C. J., dissenting on other grounds). When we have discussed the remedial powers of a federal court, we have been alert to the limitation that “[t]he power of the federal courts to restructure the operation of local and state governmental entities ‘is not plenary. . . .’ [A] federal court is required to tailor ‘the scope of the remedy’ to fit the" }, { "docid": "22702163", "title": "", "text": "S. 1 (1971); McDaniel v. Barresi, 402 U. S. 39 (1971); Green v. County School Board, 391 U. S. 430 (1968). Racial classifications thus were designed as remedies for the vindication of constitutional entitlement. Moreover, the scope of the remedies was not permitted to exceed the extent of the violations. E. g., Dayton Board of Education v. Brinkman, 433 U. S. 406. (1977); Milliken v. Bradley, 418 U. S. 717 (1974); see Pasadena City Board of Education v. Spangler, 427 U. S. 424 (1976). See also Austin Independent School Dist. v. United States, 429 U. S. 990, 991-995 (1976) (Powell, J„ concurring). Here, there was no judicial determination of constitutional violation as a predicate for the formulation of a remedial classification. The employment discrimination cases also do not advance petitioner’s cause. For example, in Franks v. Bowman Transportation Co., 424 U. S. 747 (1976), we approved a retroactive award of seniority to a class of Negro truckdrivers who had been the victims of discrimination — not just by society at large, but by the respondent in that case. While this relief imposed some burdens on other employees, it was held necessary “ 'to make [the victims] whole for injuries suffered on account of unlawful employment discrimination.’ ” Id., at 763, quoting Albemarle Paper Co. v. Moody, 422 U. S. 405, 418 (1975). The Courts of Appeals have fashioned various types of racial preferences as remedies for constitutional or •statutory violations resulting in identified, race-based injuries to individuals held entitled to the preference. E. g., Bridgeport Guardians, Inc. v. Bridgeport Civil Service Commission, 482 F. 2d 1333 (CA2 1973); Carter v. Gallagher, 452 F. 2d 315 (CA8 1972), modified on rehearing en banc, id., at 327. Such preferences also have been upheld where a legislative or administrative body charged with the responsibility made determinations of past discrimination by the industries affected, and fashioned remedies deemed appropriate to rectify the discrimination. E. g., Contractors Association of Eastern Pennsylvania v. Secretary of Labor, 442 F. 2d 159 (CA3), cert. denied, 404 U. S. 854 (1971); Associated General Contractors of Massachusetts, Inc. v. Altshuler," }, { "docid": "22325034", "title": "", "text": "contemporaneous findings requirement should not be necessary. This conclusion is consistent with our previous decisions recognizing the States’ ability to take voluntary race-conscious action to achieve compliance with the law even in the absence of a specific finding of past discrimination. See, e. g., United Jewish Organizations of Williamsburgh, Inc. v. Carey, 430 U. S. 144, 165-166 (1977) (reapportionment); McDaniel v. Barresi, 402 U. S. 39 (1971) (school desegregation). Indeed, our recognition of the responsible state actor’s competency to take these steps is assumed in our recognition of the States’ constitutional duty to take affirmative steps to eliminate the continuing effects of past unconstitutional discrimination. See, e. g., Swann v. Charlotte-Mecklenburg Board of Education, 402 U. S. 1, 15 (1971); Green v. New Kent County School Board, 391 U. S. 430, 437-438 (1968). Of course, as Justice Powell notes, the public employer must discharge this sensitive duty with great care; in order to provide some measure of protection to the interests of its nonminority employees and the employer itself in the event that its affirmative action plan is challenged, the public employer must have a firm basis for determining that affirmative action is warranted. Public employers are not without reliable benchmarks in making this determination. For example, demonstrable evidence of a disparity between the percentage of qualified blacks on a school’s teaching staff and the percentage of qualified minorities in the relevant labor pool sufficient to support a prima facie Title VII pattern or practice claim by minority teachers would lend a compelling basis for a competent authority such as the School Board to conclude that implementation of a voluntary affirmative action plan is appropriate to remedy apparent prior employment discrimination. To be sure, such a conclusion is not unassailable. If a voluntary affirmative action plan is subsequently challenged in court by nonminority employees, those employees must be given the opportunity to prove that the plan does not meet the constitutional standard this Court has articulated. However, as the plurality suggests, the institution of such a challenge does not automatically impose upon the public employer the burden of convincing the" } ]

[ { "docid": "22655609", "title": "", "text": "a new lawyer for the defendant.) If the brief explains the nature of the case and fully and intelligently discusses the issues that the type of case might be expected to involve, we shall not conduct an independent top-to-bottom review of the record in the district court to determine whether a more resourceful or ingenious lawyer might have found additional issues that may not be frivolous. We shall confine our scrutiny of the record to the portions of it that relate to the issues discussed in the brief. If in light of this scrutiny it is apparent that the lawyer’s discussion of the issues that he chose to discuss is responsible and if there is nothing in the district court’s decision to suggest that there are other issues the brief should have discussed, we shall have enough basis for confidence in the lawyer’s competence to forgo scrutiny of the rest of the record. The resources of the courts of appeals are limited and the time of staff attorneys and law clerks that is devoted to searching haystacks for needles is unavailable for more promising research. Id. at 553. The Third Circuit follows the Seventh Circuit approach. See United States v. Youla, 241 F.3d 296 (3d Cir.2001) and United States v. Ripoll, 123 Fed.Appx. 479 (3d Cir.2005) (unpublished). We agree with the Seventh Circuit’s analysis and adopt its approach to Anders cases. The holding in this case, along with the holding in our companion case, United States v. Garland, No. 09-50317, 632 F.3d 877 (5th Cir.Tex.), setting forth the minimum standards for Anders briefs, will fully satisfy defendants’ Sixth Amendment right of counsel on direct appeal. Applying this process to the facts of Flores’ guilty plea and sentence, and based on our review of counsel’s brief and the relevant portions of the record referenced therein, we accept counsel’s assessment that Flores has no nonfrivolous issues to raise on appeal. III. Accordingly, counsel’s motion to withdraw is granted and the appeal is dismissed as frivolous. See 5th Cir. R. 42.2. . We have incorporated a number of changes in the opinion suggested" } ]

[ { "docid": "13263094", "title": "", "text": "PER CURIAM. Ryan Maeder pleaded guilty to conspiring to rob a bank in violation of 18 U.S.C. §§ 371, 2113(a). He was sentenced to 57 months’ imprisonment, three years’ supervised release, $23,477 in restitution, and a $100 fine. Mr. Maeder’s counsel filed a notice of appeal, but we permitted him to withdraw and appointed substitute counsel. His new lawyer now moves to withdraw in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), because he cannot discern a non-frivolous issue for appeal. Because Mr. Maeder declined our invitation to file a response, see Circuit Rule 51(b), and counsel’s Anders brief is facially adequate, we limit our review of the record to the potential issues identified in the brief. See United States, v. Schuh, 289 F.3d 968, 973-74 (7th Cir.2002). For the reasons set forth below, we direct counsel to either amend his brief or withdraw his motion. The facts presented during Mr. Mae-der’s plea colloquy, which he admitted were true, established the following. Mr. Maeder met with two other men, Lyle Tyson and Corey Rozowski, on August 9, 2001, to plan to rob the Bank of Drum-mond in Barnes, Wisconsin. The following day, Tyson and Rozowski robbed the bank using BB guns Mr. Maeder had given them, although Mr. Maeder was not at the bank during the robbery. Following the robbery, Tyson and Rozowski fled the bank to a cabin owned by Rozowski’s relatives. Mr. Maeder met Tyson and Rozow-ski at the cabin and gave Rozowski a ride home. In his Anders brief, counsel affirmatively represents that the district court committed no errors during its Rule 11 plea colloquy and that Mr. Maeder’s plea was “knowing and voluntary and nothing [in] the record indicates otherwise.” Thus he concludes that any challenge by Mr. Mae-der to his guilty plea on that ground would be frivolous. Our own review of the colloquy has identified two obvious errors. First, the district court failed to specifically tell Mr. Maeder that he was waiving his right to a trial by pleading guilty. Fed.R.Crim.P. 11(c)(4). Second, the district court failed" }, { "docid": "18990143", "title": "", "text": "whether the case is wholly frivolous). If the court finds a nonfrivolous issue, it will direct counsel to more fully brief the issue. Cf. United States v. Phillips, 390 F.3d 574, 576 (8th Cir.2004) (noting that we denied the Anders motion to withdraw and directed counsel to more fully brief two issues). By his own argument, Davis concedes that his appellate counsel fully briefed the drug-quantity issue. His only complaint concerns the motion to withdraw. The court’s usual remedy when confronted with a nonfrivolous issue in an Anders brief— order counsel to more fully brief the issue — was already accomplished in this case. Accordingly, Davis cannot establish prejudice. III. CONCLUSION We affirm the district court. . The Honorable Donald E. O'Brien, United States District Judge for the Northern District of Iowa. . Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) (holding that after examining the record and concluding that an appeal would be wholly without merit, counsel may file a brief informing the court of any point that arguably might support an appeal, and request permission to withdraw). . Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) . On the other hand, there are numerous cases where counsel raised an issue in an Anders brief, we rejected the issue on the merits, and granted the motion to withdraw. E.g., United States v. Perales, 487 F.3d 588, 589 (8th Cir.2007); United States v. Alatorre, 207 F.3d 1078, 1079 (8th Cir.2000). This procedure may be a technical violation of Anders, but nothing more. Anders, 386 U.S. at 744, 87 S.Ct. 1396. If a court gratuitously reviews an arguably frivolous issue on the merits instead of simply dismissing the case, a defendant is getting more process than he is due, rather than less. And to the extent that this ineffective assistance of counsel issue has morphed into the question of whether Davis's due process rights were denied because the Davis I panel incorrectly applied Anders, we agree with the government that this issue was not contained within the certificate of appeal-ability" }, { "docid": "11778383", "title": "", "text": "PER CURIAM: Francisco Baraga appeals from his sentence of 70 months’ imprisonment, 8 years’ supervised release and a $50 special assessment imposed following his plea of guilty to conspiracy to distribute cocaine within 1000 feet of a school in violation of 21 U.S.C. § 846. Martin Estrella appeals from his sentence of 131 months’ imprisonment and a $100 special assessment imposed following his plea of guilty to conspiracy to distribute cocaine within 1000 feet of a school, in violation of 21 U.S.C. § 846, and possession of a firearm in relation to a drug trafficking offense, in violation of 18 U.S.C. § 924. Gold-stein, Weinstein & Fuld (“GWF”), Baraga’s retained counsel, and Howard S. Ripps, Es-trella’s retained counsel, request permission to withdraw pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Although Anders motions are typically made by counsel appointed for indigent defendants pursuant to Fed.R.Crim.P. 44 and the Criminal Justice Act, 18 U.S.C. § 3006A, retained counsel may properly file Anders motions. Although we have never commented on this practice, we have granted Anders motions by retained counsel. See, e.g., Grimes v. United States, 607 F.2d 6, 7 (2d Cir.1979). The Supreme Court has declared in the Anders context that retained and appointed counsel share the responsibility not to “consume the time and the energies of the court or the opposing party by advancing frivolous arguments.” McCoy v. Court of Appeals of Wisc. Dist., 486 U.S. 429, 436, 108 S.Ct. 1895, 1901, 100 L.Ed.2d 440 (1988). GWF and Ripps both claim that the court should grant their requests because the appeals contain no non-frivolous issues. The government has moved for summary affirmance as to both defendants. Because the Anders briefs are inadequate, we deny GWF and Ripps permission to withdraw until the defendants have been notified by the Clerk of their respective counsels’ desires and of the opportunity to have new counsel appointed. The government’s motions for summary affirmance are denied. GWF’s and Ripps’ briefs fail to demonstrate a minimal effort to “search the record with care, and then to explain to an" }, { "docid": "14583957", "title": "", "text": "PER CURIAM. Alan King used stolen social security numbers to poach Hurricane Katrina relief funds, student-loan money, Pell Grant money, and credit at various banks and retailers. King pleaded guilty to stealing government property, 18 U.S.C. § 641, loan fraud, id. § 1014, false representation of social security numbers, 42 U.S.C. § 408(a)(7)(B), and federal student financial aid fraud, 20 U.S.C. § 1097(a). The district court sentenced King to a total of 105 months’ imprisonment, along with five years’ supervised release, $183,845 in restitution, and a $400 special assessment. King filed a notice of appeal; perhaps anticipating our opinion in United States v. Gammicchia, 498 F.3d 467 (7th Cir.2007) (when a criminal appeal is frivolous, the defendant’s attorneys should file an An-ders motion), his appointed counsel moved to withdraw because he cannot discern a nonfrivolous basis for appeal. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). King has responded to counsel’s facially adequate brief, see Cir. R. 51(b), so we limit our review to the potential issues identified by counsel and King. See United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir.2002). We begin with King’s belated contention that he was not of “sound mind” when he pleaded guilty because he had ingested twice his morning dose of Elavil, a drug used to treat depression and anxiety. But other than saying that the antidepressant elevated his mood, King has not explained how it possibly could have impaired his rational faculties. See, e.g., United States v. Grimes, 173 F.3d 634, 636-37 (7th Cir.1999); United States v. Groll, 992 F.2d 755, 758 n. 2 (7th Cir.1993). Moreover, King has given us no reason to doubt the veracity of his sworn statements that, notwithstanding his ingestion of the drug, he understood the charges against him, the rights that he was relinquishing by pleading guilty, and the consequences of his plea. See Nunez v. United States, 495 F.3d 544, 546 (7th Cir.2007); United States v. Fuller, 15 F.3d 646, 650 & n. 3 (7th Cir.1994). Indeed, only a few minutes after he entered his plea, King delivered" }, { "docid": "1297099", "title": "", "text": "of Anders. Additionally, but of significance, the magistrate noted that appellate counsel did not move to withdraw as attorney for Moss. The State argued that under Lockhart v. McCotter, 782 F.2d 1275 (5th Cir.1986), Moss’s petition should be denied because he did not show prejudice, i.e., but for counsel’s alleged errors there is a reasonable probability that the conviction would be reversed on appeal. The magistrate responded that the question of prejudice would effectively be presumed — that Moss need not show specific acts of unprofessional conduct to be entitled to relief on an Anders violation, even though no nonfrivolous issues had yet been raised. The magistrate also stated that Penson v. Ohio, 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), which directed that a prejudice analysis is inapplicable in the case of an Anders violation, preempts application of Lockhart. III.Abuse of Writ The ruling that Moss has not abused the writ of habeas corpus will be reversed only for abuse of discretion. Shouest v. Whitley, 927 F.2d 205, 207 (5th Cir.1991). In this case, the district court appears to have done exactly as the November 1987 remand order directed: it made a determination as to whether Moss had abused the writ process by filing a second habeas corpus petition. Review of that issue is, however, unnecessary because of our determination on the merits of Moss’s petition. IV.Ineffective Assistance of Appellate Counsel A criminal defendant may not be denied representation on appeal based on appellate counsel’s bare assertion that an appeal has no merit. Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Should appellate counsel move to withdraw from representation, he must file a brief advising the court of anything that might arguably support the appeal. Id. at 744, 87 S.Ct. at 1400. Likewise, before it considers the case on its merits without the assistance of counsel, the appeals court must first find that there are no nonfrivolous issues for appeal. Id. Additionally, Anders directs that “[a] copy of counsel’s brief should be furnished to the indigent, and time allowed him to raise" }, { "docid": "22660609", "title": "", "text": "F.3d 778, 779 (3d Cir.2000). Third Circuit Local Appellate Rule 109.2(a) reflects the guidelines the Supreme Court promulgated in Anders to assure that indigent clients receive adequate and fair representation. Where, upon review of the district court record, trial counsel is persuaded that the appeal presents no issue of even arguable merit, trial counsel may file a motion to withdraw and supporting brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), which shall be served upon the appellant and the United States. The United States shall file a brief in response. Appellant may also file a brief in response pro se. After all briefs have been filed, the clerk will refer the case to a merits panel. If the panel agrees that the appeal is without merit, it will grant trial counsel’s Anders motion, and dispose of the appeal without appointing new counsel. If the panel finds arguable merit to the appeal, it will discharge current counsel, appoint substitute counsel, restore the case to the calendar, and order supplemental briefing. Third Circuit L.A.R. 109.2(a). The Court’s inquiry when counsel submits an Anders brief is thus twofold: (1) whether counsel adequately fulfilled the rule’s requirements; and (2) whether an independent review of the record presents any nonfrivolous issues. Marvin, 211 F.3d at 780 (citing United States v. Tabb, 125 F.3d 583 (7th Cir.1997); and United States v. Wagner, 103 F.3d 551 (7th Cir.1996)). This Court, following the Seventh Circuit’s analysis in Tabb, established the first inquiry as dispositive: “except in those cases in which frivolousness is patent, we will reject briefs ... in which counsel argue the purportedly frivolous issues aggressively without explaining the faults in the arguments, as well as those where we are not satisfied that counsel adequately attempted to uncover the best arguments for his or her client.” Marvin, 211 F.3d at 781. In this case, we reject the Anders brief for the latter reason. A. Adequacy of Counsel’s Anders Brief The duties of counsel when preparing an Anders brief are (1) to satisfy the court that counsel has thoroughly examined" }, { "docid": "22703688", "title": "", "text": "no nonfrivolous issues for appeal, he or she could submit a brief “referring to anything in the record that might arguably support the appeal.” Id. at 744, 87 S.Ct. 1396. Many courts took this as a prescription, but the Supreme Court recently explained that it was only a suggestion. See Smith v. Robbins, — U.S.-, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000). Each state is free to use any process, Smith explained, so long as defendants’ rights to effective representation are not compromised. See id. at 753. The relevant Third Circuit rule tracks the Anders suggestion: Where, upon review of the district court record, trial counsel is persuaded that the appeal presents no issue of even arguable merit, trial counsel may file a motion to withdraw and supporting brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), which shall be served upon the appellant and the United States. The United States shall file a brief in response. Appellant may also file a brief in response pro se. After all briefs have been filed, the clerk will refer the case to a merits panel. If the panel agrees that the appeal is without merit, it will grant trial counsel’s Anders motion, and dispose of the appeal without appointing new counsel. If the panel finds arguable merit to the appeal, it will discharge current counsel, appoint substitute counsel, restore the case to the calendar, and order supplemental briefing. Third Circuit Rule 109.2(a). This rule, like the Anders case itself, provides only a general explanation of the contours of the court’s and counsel’s obligations in the Anders situation. However, two opinions of the Court of Appeals for the Seventh Circuit, United States v. Tabb, 125 F.3d 583 (7th Cir.1997), and United States v. Wagner, 103 F.3d 551 (7th Cir.1996), have shed new light on the interpretation of Anders. These opinions fill in gaps left by Anders and its early progeny with respect to two critical questions: (1) the responsibilities of counsel in submitting an Anders brief (Tabb); and (2) the duties of the courts of appeals" }, { "docid": "14098565", "title": "", "text": "PER CURIAM: In this appeal, we consider the adequacy of defense counsel’s Anders brief where the defendant has advised counsel that he does not wish to challenge his guilty plea. We conclude that ordinarily counsel must file a transcript and brief the issues surrounding the plea unless the record reflects that the defendant has chosen not to challenge the plea. I. Pursuant to a written plea agreement, Julio Garcia (Garcia) pleaded guilty to possession with intent to distribute more than 500 grams of cocaine. The district court sentenced Garcia to 64 months of imprisonment and four years of supervised release. Garcia filed a timely notice of appeal. The Federal Public Defender (FPD), court-appointed counsel for Garcia, has filed a motion to withdraw and a brief in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). The Clerk of Court notified Garcia of his right to respond to counsel’s Anders brief, but he has not done so. Counsel stated in his brief that Garcia advised him that he did not wish to challenge his guilty plea and for that reason counsel did not file a record of the plea colloquy nor did he brief issues surrounding the plea. Counsel did, however, review sentencing issues and explain why he found no nonfrivolous issues in this respect. We consider below the adequacy of the Anders brief under these circumstances. II. Anders established requirements for an appointed counsel seeking to withdraw from representation of a defendant on his direct criminal appeal because of the lack of nonfrivolous issues to be raised on appeal. Anders, 386 U.S. at 744, 87 S.Ct. 1396. “[I]f counsel finds his case to be wholly frivolous, after a conscientious examination of it, he should so advise the court and request permission to withdraw. That request must, however, be accompanied by a brief referring to anything in the record that might arguably support the appeal.” Id. “The attorney must isolate ‘possibly important issues’ and must ‘furnish the court with references to the record and legal authorities to aid it in its appellate function.’ ” United" }, { "docid": "19002601", "title": "", "text": "PER CURIAM. Following his conviction for distributing cocaine base, see 21 U.S.C. § 841(a)(1), Larry McGee helped authorities apprehend his supplier. Consequently, the Government moved under Federal Rule of Criminal Procedure 35(b) for a reduction in Mr. McGee’s 200-month sentence. After finding that Mr. McGee had substantially assisted the Government, the court granted the motion and reduced Mr. McGee’s sentence to 160 months’ imprisonment. Mr. McGee filed a notice of appeal, but his appointed counsel now seeks to withdraw pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), because he is unable to identify a nonfrivolous basis for appeal. For the reasons set forth in this opinion, we now grant counsel’s motion to withdraw and dismiss this appeal. I BACKGROUND Mr. McGee sold crack cocaine to either an informant or undercover police officers 14 times in 2005. He was charged with distributing cocaine base in violation of 21 U.S.C. § 841(a)(1). Mr. McGee pleaded guilty to the charge. Because of the nature of the offense, as well as prior felony convictions for kidnaping, rape and possession of cocaine, the district court calculated a guidelines range of 235 to 293 months. The court, however, sentenced Mr. McGee below that range to 200 months’ imprisonment, five years of supervised release and a $100 special assessment. Mr. McGee filed a notice of appeal, but the appointed lawyer representing him at that time concluded that the appeal was frivolous and moved to withdraw under Anders. We granted counsel’s motion and dismissed the appeal. United States v. McGee, 216 Fed.Appx. 580 (7th Cir.2007). Meanwhile, Mr. McGee helped the Government apprehend his supplier, and thus the Government filed a motion, pursuant to Rule 35(b), asking the district court to reduce his sentence as a reward for his substantial assistance. The court granted that motion and gave Mr. McGee a chance to speak on his own behalf before imposing a new sentence. The court then reduced Mr. McGee’s original sentence by 40 months and imposed a 160-month term of imprisonment. The court entered a new judgment reflecting the reduced term. II" }, { "docid": "22660608", "title": "", "text": "counsel acts in the role of an active advocate in behalf of his client, as opposed to that of amicus curiae.” Id.; see also Griffin v. Illinois, 351 U.S. 12, 20, 76 S.Ct. 585, 100 L.Ed. 891 (1956) (stating that equal justice demands that destitute defendants be afforded adequate appellate review). This Court’s role is then to decide whether the case is wholly frivolous. If so, the Court can grant counsel’s motion to withdraw and dismiss the appeal under federal law, or proceed to a decision on the merits if state law so requires. Anders, 386 U.S. at 744, 87 S.Ct. 1396. “On the other hand, if it finds any of the legal points arguable on their merits (and therefore not frivolous) it must, prior to decision, afford the indigent the assistance of counsel to argue the appeal.” Id. The Supreme Court recently explained in Smith v. Robbins, 528 U.S. 259, 120 S.Ct. 746, 753, 145 L.Ed.2d 756 (2000), that the Anders guidelines are only suggestive, not prescriptive. See also United States v. Marvin, 211 F.3d 778, 779 (3d Cir.2000). Third Circuit Local Appellate Rule 109.2(a) reflects the guidelines the Supreme Court promulgated in Anders to assure that indigent clients receive adequate and fair representation. Where, upon review of the district court record, trial counsel is persuaded that the appeal presents no issue of even arguable merit, trial counsel may file a motion to withdraw and supporting brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), which shall be served upon the appellant and the United States. The United States shall file a brief in response. Appellant may also file a brief in response pro se. After all briefs have been filed, the clerk will refer the case to a merits panel. If the panel agrees that the appeal is without merit, it will grant trial counsel’s Anders motion, and dispose of the appeal without appointing new counsel. If the panel finds arguable merit to the appeal, it will discharge current counsel, appoint substitute counsel, restore the case to the calendar, and order" }, { "docid": "2445656", "title": "", "text": "McKAY, Circuit Judge. Mr. Prieto-Duran appeals the imposition of a seventy-two-month sentence for drug offenses. The sentence was pursuant to a valid plea agreement, or Memorandum of Understanding, under Fed.R.Crim.P. 11(e)(1)(c). According to 18 U.S.C. § 3742(c), “In the case of a plea agreement that includes a specific sentence under rule 11(e)(1)(c) of the Federal Rules of Criminal Procedure a defendant may not file a notice of appeal under paragraph (3) ... unless the sentence imposed is greater than the sentence set forth in such agreement.” Paragraph (3) provides that a defendant may appeal a sentence which “is greater than the sentence specified in the applicable guideline range.” Mr. Prieto-Duran received seventy-two months, a sentence to which he specifically agreed. He is complaining because the sentencing guidelines specified a range of sixty to sixty-three months for the offenses to which he pled. However, pursuant to the plea agreement, the government agreed to forego filing a sentence enhancement information for prior criminal activities under 21 U.S.C. § 851. This enhancement would have required a ten-year term of imprisonment. This is precisely the type of appeal which is barred by 18 U.S.C. § 3742(c)(1). See United States v. Bolinger, 940 F.2d 478 (9th Cir.1991); United States v. David, 967 F.2d 592 (9th Cir.1992) (unpublished opinion). We have no jurisdiction to review the trial court’s imposition of sentence in this matter. Accordingly, the appeal is dismissed. After review, we have concluded that defendant’s counsel properly filed an Anders brief in this case. Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Mr. Prieto-Duran has filed a response to the Anders brief. We have considered his arguments and found them to be without merit. In addition, because there is no basis for an appeal, appellant’s motion for appointment of new counsel is denied. Counsel’s request for leave to withdraw is granted. DISMISSED." }, { "docid": "14537599", "title": "", "text": "POSNER, Circuit Judge. D’Marcus Mason was sentenced to 135 months in prison for a drug offense, having pleaded guilty pursuant to a plea agreement, and he filed a timely notice of appeal. Although he has not yet filed his opening brief, the government has moved to dismiss the appeal, arguing that we lack jurisdiction because Mason waived his appeal rights as part of a plea agreement. (In fact a waiver of appeal rights does not deprive us of our appellate jurisdiction, although it is a ground for dismissing the appeal.) Mason’s counsel has filed a response in which he agrees that the appeal should be dismissed because of the waiver and asks for leave to withdraw as counsel pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), which authorizes a criminal defendant’s lawyer to withdraw from the representation of his client on appeal if there are no nonfrivolous grounds for an appeal. The novelty that gives rise to this opinion is a motion by counsel in a criminal case to withdraw by filing a response to a motion to dismiss, rather than by filing a formal Anders brief when the opening brief on appeal is due. A waiver of appeal even in a criminal case is normally valid and binding, e.g., United States v. Nave, 302 F.3d 719, 720-21 (7th Cir.2002); United States v. Brown, 328 F.3d 787, 788 (5th Cir.2003); United States v. Andis, 333 F.3d 886, 889 (8th Cir.2003); but it “does not, in every instance, foreclose review.” United States v. Sines, 303 F.3d 793, 798 (7th Cir.2002). The plea agreement containing the waiver may have preserved some issue for appeal. United States v. Behrman, 235 F.3d 1049, 1052 (7th Cir.2000). Or, if the plea agreement turns out to be unenforceable, maybe because the government committed a material breach or the plea was involuntary on the part of the defendant, the waiver falls with the agreement and the appellant can appeal. United States v. Woolley, 123 F.3d 627, 632 (7th Cir.1997); United States v. Gonzalez, 309 F.3d 882, 886 (5th Cir.2002); United" }, { "docid": "7455103", "title": "", "text": "should include, but are not limited to, the issues discussed in the CPC. We note that Simon has raised other issues before us, such as ineffective assistance of counsel claims, that counsel may also choose to address upon remand. We express no view on the merits of any of the issues raised. III. CONCLUSION For the reasons set forth above, we will vacate the order of the Appellate Division and remand the case for further proceedings in accordance with this opinion. . The Virgin Islands Legislature statutorily changed the name of the Territorial Court to the Superior Court, effective January 1, 2005. . Rule 14(b) provides that an appeal of the denial of a habeas petition may not proceed in the Appellate Division without a CPC. . Third Circuit Local Appellate Rule 109.2(a) states: “Where, upon review of the district court record, trial counsel is persuaded that the appeal presents no issue of even arguable merit, trial counsel may file a motion to withdraw and supporting brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), which shall be served upon the appellant and the United States. The United States shall file a brief in response. Appellant may also file a brief in response pro se. After all briefs have been filed, the clerk will refer the case to a merits panel. If the panel agrees that the appeal is without merit, it will grant trial counsel's Anders motion, and dispose of the appeal without appointing new counsel. If the panel finds arguable merit to the appeal, it will discharge current counsel, appoint substitute counsel, restore the case to the calendar, and order supplemental briefing.”" }, { "docid": "18990142", "title": "", "text": "withdraw under Anders because there was a nonfrivolous appellate issue. Adding to the novelty of the argument, Davis contends that the Davis I panel also did not treat the issue as frivolous because the court ruled against Davis on the merits of the issue, rather than merely dismissing the issue as frivolous. Because the issue was not frivolous, and was not treated as frivolous by either counsel or the court, Davis argues that the court violated his due process rights by ultimately allowing counsel to withdraw. Even if we accept the premise upon which Davis proceeds, he cannot prevail due to the rigors of Strickland’s prejudice prong. There is no probability that the outcome of Davis’s direct appeal would have been any different had counsel not asked to withdraw pursuant to Anders. Generally, when counsel submits an Anders brief, the court independently reviews the record for any nonfrivolous issue. Anders, 386 U.S. at 744, 87 S.Ct. 1396 (noting that it is the duty of the court, not counsel, to review the record and ultimately decide whether the case is wholly frivolous). If the court finds a nonfrivolous issue, it will direct counsel to more fully brief the issue. Cf. United States v. Phillips, 390 F.3d 574, 576 (8th Cir.2004) (noting that we denied the Anders motion to withdraw and directed counsel to more fully brief two issues). By his own argument, Davis concedes that his appellate counsel fully briefed the drug-quantity issue. His only complaint concerns the motion to withdraw. The court’s usual remedy when confronted with a nonfrivolous issue in an Anders brief— order counsel to more fully brief the issue — was already accomplished in this case. Accordingly, Davis cannot establish prejudice. III. CONCLUSION We affirm the district court. . The Honorable Donald E. O'Brien, United States District Judge for the Northern District of Iowa. . Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) (holding that after examining the record and concluding that an appeal would be wholly without merit, counsel may file a brief informing the court of any point that" }, { "docid": "22694768", "title": "", "text": "PER CURIAM. Several months ago, in United States v. Wagner, 103 F.3d 551 (7th Cir.1996), we clarified the procedure we follow when determining whether to accept a motion by a criminal, defendant’s lawyer to withdraw from representing a defendant on appeal because no nonfrivolous issues can be advanced. Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Our starting point is the Anders brief itself, which we review to see if it is adequate on its face. If it explains the nature of the case and intelligently discusses the issues that a case of the sort might be expected to involve, we will not conduct an independent review of the record to determine whether a more ingenious lawyer might have found additional issues that may not be frivolous. Instead, we confine our scrutiny of the record to the portions that relate to the issues discussed in the brief. If in light of this scrutiny it is apparent that the lawyer’s discussion of the issues she chose to discuss is reasonable and if there is nothing in the district court’s decision to suggest that there are other issues the brief should have discussed, we will have a sufficient basis for confidence in the lawyer’s competence to forego scrutiny of the rest of the record. Then, if we agree with the brief, we will grant the attorney’s request to withdraw as counsel and dismiss the appeal as meritless. We took this approach because a lawyer submitting an Anders brief is, in essence, offering an expert opinion that the appeal is devoid of merit. If the brief, on its face, is adequate, we think we can comfortably rely on the professional opinion it offers. We are also influenced by a defendant’s response, if any, to the Anders brief which must be served on the defendant. 7th Cir. R. 51(b). And although we do not attach conclusive weight to a defendant’s failure to respond to an Anders brief, it may, in fact, be an acknowledgment that the appeal should be abandoned as hopeless. Wagner at 552. The two eases before" }, { "docid": "23625552", "title": "", "text": "we conclude that the district court did not abuse its discretion in denying Henderson’s motion to withdraw his guilty plea. Based on the foregoing, the Government’s motion to dismiss Henderson’s appeal for want of jurisdiction is DENIED. However, having carefully reviewed the record, we find that Henderson’s appeal raises no issue of arguable merit. Therefore, the motion of Henderson’s counsel to withdraw is GRANTED, and the appeal is DISMISSED. 5th CiR.R. 42.2. . 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). . 18 U.S.C. § 922(g). . Henderson reserved the right to appeal any punishment imposed in excess of the statutory maximum and any upward departure from the applicable sentencing guidelines. . See 18 U.S.C. § 924(e)(1) (setting minimum punishment for persons convicted under § 922(g) with three prior convictions). .Pursuant to Anders, appointed counsel on appeal may move to withdraw from the case after fully examining the facts and the law pertaining to the case, concluding that tire appeal presents no legally non-frivolous questions, and submitting a brief explaining why the appeal presents no legally non-frivolous questions. Though we hold that we have jurisdiction to entertain Henderson's appeal, we find that the appeal itself raises no issue of arguable merit. Therefore, counsel has satisfied Anders sufficiently to allow his withdrawal from the case." }, { "docid": "21389884", "title": "", "text": "63-78 months. He therefore asked the district court to reduce his sentence to 63 months. The Government filed a response, arguing Mr. Kurtz was not statutorily eligible for a § 3582(c)(2) reduction. On August 19, 2015, the district court denied Mr. Kurtz’s motion. He filed a timely notice of appeal on September 1, 2015. See Fed. R-App. 4(b)(l)(A)(i). C. Anders Brief We appointed the Féderal Public Defender’s Office for the District of New Mexico to represent Mr. Kurtz on appeal. On November 25, 2015, Mr. Kurtz’s counsel filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), which authorizes counsel to request permission to withdraw where counsel conscientiously examines a case and determines that any appeal would be wholly frivolous. Under Anders, counsel must submit a brief to the client and the appellate court indicating any potential ap-pealable issues based on the record. The client may then choose to submit arguments- to the court. The Court must then conduct a full examination of the record to determine whether defendant’s claims are wholly frivolous. If the court concludes after such an examination that the appeal is frivolous, it may grant counsel’s motion to withdraw and may dismiss the appeal. United States v. Calderon, 428 F.3d 928, 930 (10th Cir.2005) (citations omitted). Counsel indicated he could detect no “non-frivolous arguments that the district court erred in denying Mr. Kurtz’s Motion.” Aplt. Br. at 1. He therefore sought permission to withdraw. Counsel mailed a copy of his Anders brief to Mr. Kurtz, who filed a two-page response on January 19, 2016. II. DISCUSSION A. Standard of Review “The scope of a district court’s authority in a sentencing modification proceeding under § 3582(c)(2) is a question of law that we review de novo. We review a denial of a § 3582(c)(2) motion for abuse of discretion.” United States v. Lucero, 713 F.3d 1024, 1026 (10th Cir.2013) (quotation, citation, and brackets omitted). When counsel submits an Anders brief,’ our review of the record is de novo. See United States v. Leon, 476 F.3d 829, 832 (10th Cir.2007)" }, { "docid": "22703687", "title": "", "text": "OPINION OF THE COURT BECKER, Chief Judge. I. Donald Wayne Marvin pled guilty to conspiracy, robbery, and the use of a firearm during a crime of violence. Marvin wanted to appeal aspects of his sentencing, but Marvin’s counsel filed an Anders motion, requesting to withdraw from representing him and expressing his belief that there were no nonfrivolous arguments for appeal. After reviewing the brief, we conclude that it is inadequate, and deny counsel’s motion. In Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), the Supreme Court explained the general duties of a lawyer representing an indigent criminal defendant on appeal when the lawyer seeks leave to withdraw from continued representation on the grounds that there are no nonfrivolous issues to appeal. An-ders struck down a process that allowed courts of appeals to accept a mere assertion by counsel that he or she found the appeal to be “without merit.” Id. at 743, 87 S.Ct. 1396. The Court suggested, however, that if, after a “conscientious examination” of the record, counsel found no nonfrivolous issues for appeal, he or she could submit a brief “referring to anything in the record that might arguably support the appeal.” Id. at 744, 87 S.Ct. 1396. Many courts took this as a prescription, but the Supreme Court recently explained that it was only a suggestion. See Smith v. Robbins, — U.S.-, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000). Each state is free to use any process, Smith explained, so long as defendants’ rights to effective representation are not compromised. See id. at 753. The relevant Third Circuit rule tracks the Anders suggestion: Where, upon review of the district court record, trial counsel is persuaded that the appeal presents no issue of even arguable merit, trial counsel may file a motion to withdraw and supporting brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), which shall be served upon the appellant and the United States. The United States shall file a brief in response. Appellant may also file a brief in response pro se. After" }, { "docid": "22540513", "title": "", "text": "ROBERT M. PARKER, Circuit Judge: Counsel for Tracy Joseph Wagner filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Counsel now asks that he be allowed to withdraw. Wagner similarly requests that counsel be allowed to withdraw so that he can proceed pro se on appeal. Wagner further requests that counsel’s Anders brief be stricken. In Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), the Supreme Court held that after a conscientious examination of the record, if appointed counsel finds a criminal defendant’s case to be wholly frivolous, he or she should so advise the court and request permission to withdraw. This request must be accompanied by a brief referring to anything in the record that might arguably support the appeal. 386 U.S. at 744, 87 S.Ct. 1396. The court further required that a copy of the brief be furnished to the defendant so as to allow him an oppor tunity to raise any issues he so chooses. Id. The Anders decision reconciled the conflicting interests of indigent appellants in zealous representation and the judicial system in the efficient administration of justice. Anders and its progeny discuss the adequacy of the brief which the appointed counsel must file in support of the motion to withdraw. Very little discussion exists, however, about the role of the courts in reviewing Anders briefs and requests for withdrawal of counsel. See, e.g., United States v. Wagner, 103 F.3d 551, 553 (7th Cir.1996) (noting dearth of case law and holding that “if the brief explains the nature of the ease and fully and intelligently discusses the issues that the type of case might be expected to involve, we shall not conduct an independent top-to-bottom review of the record in the district court to determine whether a more resourceful or ingenious lawyer might have found additional issues that may not be frivolous.”). This case presents a recurring issue: once appointed counsel has filed an Anders brief, should the indigent defendant be allowed to reject his attorney, have the Anders brief stricken, and" }, { "docid": "2273909", "title": "", "text": "through a translator was harmless where the “translator,” another customs agent, also testified and where the translator’s fluency was not at issue). We find the reasoning of the Second and Ninth Circuits persuasive, and we adopt it. “Except in unusual circumstances, an interpreter is ‘no more than a language conduit and therefore his translation [does] not create an additional level of hearsay.’ ” Lopez, 937 F.2d at 724 (quoting United States v. Koskerides, 877 F.2d 1129, 1135 (2d Cir.1989)) (brackets in original). In Nazemian, where, as here, the review was for plain error in the absence of an objection, the court concluded that (as here) the defendant “has offered nothing to suggest that the interpreter should not have been treated as a language conduit.” 948 F.2d at 527. There is no plain error. IV. Cordero’s attorney has moved for leave to withdraw as counsel pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Anders established standards for an appointed attorney who seeks to withdraw from a direct criminal appeal on the ground that the appeal lacks an arguable issue. After a “conscientious examination” of the case, the attorney must request permission to withdraw and must submit a “brief referring to anything in the record that might arguably support the appeal.” Id. at 744, 87 S.Ct. at 1399. The attorney must isolate “possibly important issues” and must “furnish the court with references to the record and legal authorities to aid it in its appellate function.” United States v. Johnson, 527 F.2d 1328, 1329 (5th Cir.1976). After the defendant has had an opportunity to raise any additional points, the court fully examines the record and decides whether the case is frivolous. Anders, 386 U.S. at 744, 87 S.Ct. at 1399-1400. Cordero’s lawyer has satisfied Anders sufficiently to trigger our obligation to examine the record. The attorney has briefed the question of whether Cordero’s convictions were based upon sufficient evidence; Corde-ro has not filed a response. The district court sustained two of Corde-ro’s objections to the presentence report (“PSR”). It reduced Cordero’s offense level to 26 because" } ]

[ { "docid": "23408617", "title": "", "text": "II. We review the district court’s ruling on a motion to dismiss an indictment de novo. See United States v. Loayza, 107 F.3d 257, 260 (4th Cir.1997). “[A]n indictment is sufficient if it, first, contains the elements of the offense charged and fairly informs a 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, 41 L.Ed.2d 590 (1974). Usually “an indictment is sufficient if it alleges an offense in the words of the statute,” United States v. Wicks, 187 F.3d 426, 427 (4th Cir.1999), as long as the words used in the indictment “fully, directly, and expressly, without any uncertainty or ambiguity, set forth all the elements necessary to constitute the offence,” Ham-ling, 418 U.S. at 117, 94 S.Ct. 2887 (internal quotation marks omitted). However, simply parroting the language of the statute in the indictment is insufficient. When the words of a statute are used to describe the offense generally, they “must be accompanied with such a statement of the facts and circumstances as will inform the accused of the specific offence, coming under the general description, with which he is charged.” Id. at 117-18 (internal quotation marks omitted). Thus, the indictment must also contain a “statement of the essential facts constituting the offense charged.” Fed.R.Crim.P. 7(c)(1) (emphasis added); see United States v. Smith, 44 F.3d 1259, 1263 (4th Cir.1995). III. Brandon was indicted on six counts of bank fraud under 18 U.S.C.A. § 1344. That section provides: Whoever knowingly executes, or attempts to execute, a scheme or artifice— (1) to defraud a financial institution; or (2) to obtain any of the moneys, funds, credits, assets, securities, or other property owned by, or under the custody or control of, a financial institution, by means of false or fraudulent pretenses, representations, or promises; shall be fined not more than $1,000,000 or imprisoned not more than 30 years, or both. The indictment charges that Brandon “knowingly and intentionally execute[d] a scheme and" } ]

[ { "docid": "11150231", "title": "", "text": "over either § 472 or § 510 offenses, the only inquiry raised by the Defendant’s motion, as designated, is whether the indictment charges an offense. The question of whether the indictment charges an offense against the United States is a question of law and may be determined from a reading of the indictment itself. United States v. Rosenson, 291 F.Supp. 867, 871 (E.D.La.1968). A motion to arrest judgment “must be based on a defect apparent upon the face of the indictment itself, and not upon the evidence or its sufficiency.” United States v. Kelly, 548 F.Supp. 1130, 1132 (E.D.Pa.1982). In determining whether the indictment is sufficient on its face, review for an alleged defect is made under a liberal standard. “[T]he practice of fine combing indictments for verbal and technical omissions is no longer countenanced in the courts and ... a substantial compliance with the purpose of an indictment to acquaint the defendant with the offense of which he stands charged, so that he can prepare his defense and protect himself against double jeopardy, is sufficient.” Finn, supra, at 307, quoting Hartwell v. United States, 107 F.2d 359, 362 (5th Cir.1939). Further, “[an indictment will be] construed more liberally after verdict than before, and every intendment is then indulged in support of the sufficiency.” Id.; see also, United States v. Fogel, 901 F.2d 23 (4th Cir.1990). Finally, indictments which are crafted to track the language of a statute and which charge each element of an offense are valid. Fogel, at 25; Kelly, at 1132. In the case presently before the Court the indictment, as filed, alleges on its face all of the elements of an offense against the United States, and, in so doing, tracks the language of a criminal statute. It is “a plain, concise and definite written statement of the essential facts constituting the offense charged.” Fed.R.Crim.P. 7(c)(1). It does “[contain] the elements of the offense charged and fairly informs a defendant of the charge against which he must defend,” in the language of Hamling, supra. Because the indictment, as filed, meets all of the requirements for facial" }, { "docid": "4028033", "title": "", "text": "“eliminating” a negative balance and reopening an account with a zero balance, as an accounting measure, before the pre-existing negative balance was paid off. Nieman’s conduct, the government contends, is cognizable as fraud and embezzlement. 2. Applicable standards This court recently considered the standards applicable to a motion to dismiss an indictment for failure to state an offense in United States v. Johnson, 225 F.Supp.2d 1009 (N.D.Iowa 2002): As the Eighth Circuit Court of Appeals recently explained, Rule 7(c)(1) of the Federal Rules of Criminal Procedure states that “[t]he indictment ... shall be a plain, concise and definite written statement of the essential facts constituting the offense charged.” (emphasis added). The indictment “shall state the statute, rule, regulation or other provision of law which the defendant is alleged therein to have violated.” Id. (emphasis added). An indictment is legally sufficient on its face if it contains all of the essential elements of the offense charged, fairly informs the defendant of the charges against which he must defend, and alleges sufficient information to allow a defendant to plead a conviction or acquittal as a bar to a subsequent prosecution. See United States v. Wessels, 12 F.3d 746, 750 (8th Cir.1993) (citing United States v. Young, 618 F.2d 1281, 1286 (8th Cir.1980)). United States v. Carter, 270 F.3d 731, 736 (8th Cir.2001) (emphasis in the original); United States v. Olson, 262 F.3d 795, 799 (8th Cir.2001) (“To be sufficient, an indictment must ‘contain[ ] the elements of the offense charged.’ Hamling v. United States, 418 U.S. 87, 117, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974); see FED. R. CRIM. P. 7(c)(1).”); United States v. White, 241 F.3d 1015,1021 (8th Cir.2001) (“We will consider an indictment sufficient ‘if it fairly informs the accused of the charges against him and allows him to plead double jeopardy as a bar to a future prosecution.’ ”) (quoting United States v. Mallen, 843 F.2d 1096, 1102 (8th Cir.1988)). Similarly, Usage of a particular word or phrase in the indictment is not required as long as we can recognize a valid offense and the form of the allegation" }, { "docid": "7922062", "title": "", "text": "of specific intent to threaten and that, because the indictment does not charge specific intent, it is invalid. We do not accept the Appellant’s argument. Whether an indictment properly charges an offense is a matter of law which we may consider de novo if the defendant makes a timely objection to the indictment. In reviewing the sufficiency of the indictment in this case, we apply a heightened scrutiny because the Appellant challenged the sufficiency of the indictment prior to the verdict. See United States v. Hooker, 841 F.2d 1225, 1229 (4th Cir.1988) (en banc); cf. Finn v. United States, 256 F.2d 304, 307 (4th Cir.1958) (“‘Indictments and informations are construed more liberally after verdict than before....’”). As we have previously recognized, “[a]n indictment must contain the elements of the offense charged, fairly inform a defendant of the charge, and enable the defendant to plead double jeopardy as a defense in a future prosecution for the same offense.” United States v. Daniels, 973 F.2d 272, 274 (4th Cir.1992) (citing Russell v. United States, 369 U.S. 749, 763-64, 82 S.Ct. 1038, 1047, 8 L.Ed.2d 240 (1962)), cert. denied, - U.S. -, 113 S.Ct. 1064, 122 L.Ed.2d 369 (1993). Moreover, the indictment must include every essential element of an offense, or else the indictment is invalid; and mere reference to the applicable statute does not cure the defect. Id. at 274; Hooker, 841 F.2d at 1228; United States v. Pupo, 841 F.2d 1235, 1239 (4th Cir.) (en banc), cert. denied, 488 U.S. 842, 109 S.Ct. 113, 102 L.Ed.2d 87 (1988). These criteria ensure that a defendant is afforded his constitutional guarantees under the Fifth Amendment, which provides that a defendant cannot be prosecuted for a capital or infamous crime except on presentment or indictment of a grand jury, and under the Sixth Amendment, which provides “that a defendant must ‘be informed of the nature and cause of the accusation’ against him.” Daniels, 973 F.2d at 274. At oral argument, Appellant’s counsel readily conceded that prior to the trial in this case, the Appellant was fully aware of the charges brought against him. Furthermore," }, { "docid": "3483403", "title": "", "text": "the period that he was receiving benefits. Defendant went to trial in September 2013. At the close of evidence, he moved for judgment of acquittal on the basis of the statute of limitations, but his motion was denied. The jury found Defendant guilty on all three counts. After the district court sentenced Defendant to concurrent terms of 24 months on Count One, 12 months on Count Two, and 24 months on Count Three, he appealed. On appeal, Defendant argues that Counts One and Two of the indictment were unconstitutionally defective because they failed to specify the “event” that triggered his obligation to disclose his employment to the government; that the indictment failed to allege specific intent for all three counts; that the indictment failed to allege a scheme or artifice to defraud the government on Count Three; and that the indictment is time-barred by the statute of limitations. Defendant also challenges the sufficiency of the evidence on Count Three. We address each argument in turn. II. Defendant first contends that the district court erred in denying his motion to dismiss the indictment because Counts One and Two were unconstitutionally defective. “We review the district court’s factual findings on a motion to dismiss an indictment for clear error, but we review its legal conclusions de novo.” United States v. Woolfolk, 399 F.3d 590, 594 (4th Cir.2005). ‘When a criminal defendant challenges the sufficiency of an indictment pri- or to the verdict,” — as Defendant did here — “we apply a heightened scrutiny” to ensure that every essential element of an offense has been charged. United States v. Kingrea, 573 F.3d 186, 191 (4th Cir. 2009). Specifically, [a]n indictment must contain the elements of the offense charged, fairly inform a defendant of the charge, and enable the defendant to plead double jeopardy as a defense in a future prosecution for the same offense.... [T]he indictment must include every essential element of an offense,.... Id. (citations and quotation marks omitted); accord United States v. Resendiz-Ponce, 549 U.S. 102, 108, 127 S.Ct. 782, 166 L.Ed.2d 591 (2007). “It is generally sufficient that an indictment" }, { "docid": "4516253", "title": "", "text": "page document, Franklin told the Court, “it was unclassified' — in my opinion, sir, it was unclassified and it is unclassified.” When the attorney for the government told the Court that “the government would prove that it was classified,” Franklin responded, “not a chance.” Franklin did not plead guilty to this count and following his plea of guilty the government moved to dismiss the count as against Franklin, which motion was granted. The Fourth Circuit has instructed that the review of an indictment for sufficiency should proceed “under a liberal standard [such that] every indictment is ... indulged in support of sufficiency.” United States v. Matzkin, 14 F.3d 1014, 1019 (4th Cir.1994) (quoting United States v. Fogel, 901 F.2d 23, 25 (4th Cir.1990)) (internal quotations and citations omitted). An indictment is sufficient “if it, first, contains the elements of the offense charged and fairly informs a 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.” United States v. Wicks, 187 F.3d 426, 427 (4th Cir.1999) (quoting Hamling v. United States, 418 U.S. 87, 117, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974)). For this reason, an indictment will survive a motion to dismiss if it tracks the statutory text at issue and also “contains a sufficient statement of the facts and circumstances to inform the accused of the specific offense with which he is charged.” United States v. Brandon, 298 F.3d 307, 311 (4th Cir.2002) (quoting Hamling, 418 U.S. at 117-18, 94 S.Ct. 2887). Further, “a pretrial motion to dismiss under Rule 12(b), Fed.R.Crim.P., ‘cannot be based on a sufficiency of the evidence argument because such argument raises factual questions embraced in the general issue.’ ” United States v. Lindh, 212 F.Supp.2d 541, 576 (E.D.Va.2002) (quoting United States v. Ayarza-Garcia, 819 F.2d 1043, 1048 (11th Cir.1987)); see also United States v. Terry, 257 F.3d 366, 371 (4th Cir.2001) (King, J., concurring) (“It is elementary that a motion to dismiss an indictment implicates only the legal sufficiency of its allegations, not the proof" }, { "docid": "3483404", "title": "", "text": "denying his motion to dismiss the indictment because Counts One and Two were unconstitutionally defective. “We review the district court’s factual findings on a motion to dismiss an indictment for clear error, but we review its legal conclusions de novo.” United States v. Woolfolk, 399 F.3d 590, 594 (4th Cir.2005). ‘When a criminal defendant challenges the sufficiency of an indictment pri- or to the verdict,” — as Defendant did here — “we apply a heightened scrutiny” to ensure that every essential element of an offense has been charged. United States v. Kingrea, 573 F.3d 186, 191 (4th Cir. 2009). Specifically, [a]n indictment must contain the elements of the offense charged, fairly inform a defendant of the charge, and enable the defendant to plead double jeopardy as a defense in a future prosecution for the same offense.... [T]he indictment must include every essential element of an offense,.... Id. (citations and quotation marks omitted); accord United States v. Resendiz-Ponce, 549 U.S. 102, 108, 127 S.Ct. 782, 166 L.Ed.2d 591 (2007). “It is generally sufficient that an indictment set forth the offense in the words of the statute itself, as long as ‘those words of themselves fully, directly, and expressly, without any uncertainty or ambiguity, set forth all the elements necessary to constitute the [offense] intended to be punished.’ ” Hamling v. United States, 418 U.S. 87, 117, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974) (quoting United States v. Carll, 105 U.S. 611, 612, 26 L.Ed. 1135 (1882)); accord United States v. Lockhart, 382 F.3d 447, 449 (4th Cir.2004). However, any general description based on the statutory language “must be accompanied with such a statement of the facts and circumstances as will inform the accused of the specific [offense], coming under the general description, with which he is charged.” Hamling, 418 U.S. at 117-18, 94 S.Ct. 2887 (quotation mark omitted); see also Russell v. United States, 369 U.S. 749, 765, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962) (noting that an indictment must “descend to particulars” where the definition of an offense includes generic terms (quotation marks omitted)). “Thus, the indictment must also contain" }, { "docid": "14021063", "title": "", "text": "criminal penalties for “[w]hoever within the United States or subject to the jurisdiction of the United States, knowingly provides material support or resources to a foreign terrorist organization, or attempts or conspires to do so.” Lindh argues for dismissal of these counts on grounds (i) that the Indictment is insufficient on its face; and (ii) that his alleged conduct does not violate Section 2339B. A motion to dismiss an indictment “tests whether the indictment sufficiently charges the offense set forth against defendant.” United States v. Brandon, 150 F.Supp.2d 883, 884 (E.D.Va. 2001); see also United States v. Sampson, 371 U.S. 75, 78-79, 83 S.Ct. 173, 9 L.Ed.2d 136 (1962). In this respect, the standard an indictment must meet is found in Rule 7(c)(1), Fed.R.Crim.P., which provides that “[t]he indictment or the information shall be a plain, concise and definite written statement of the essential facts constituting the offense charged.... It need not contain a formal commencement, a formal conclusion or any other matter not necessary to such a statement.” More particularly, it is generally settled that “if an indictment sets forth the essential elements of [an] offense in sufficient detail so as fairly to inform the defendant of the nature of the charge, then it is immune from attack on a motion to dismiss.” Brandon, 150 F.Supp.2d at 884; see also United States v. Darby, 37 F.3d 1059,1063 (4th Cir.1994). And, to give a defendant sufficient notice of the charges against him, the indictment need only track the language of the statute at issue. See United States v. Wicks, 187 F.3d 426, 427 (4th Cir.1999); United States v. Smith, 44 F.3d 1259, 1264 (4th Cir.1995); United States v. Fogel, 901 F.2d 23, 25 (4th Cir.1990). An indictment satisfies the constitutional guarantees of the Fifth and Sixth Amendments “if it, first, contains the elements of the offense charged and fairly informs a 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.” Wicks, 187 F.3d at 427 (quoting Hamling v. United States, 418" }, { "docid": "19800980", "title": "", "text": "§ 2156(a)(1) and was therefore defective as a matter of law. Second, he avers that an exception contained in the Code of Virginia makes his conduct legal under Virginia law and therefore not in violation of 18 U.S.C. § 1955. A. “Whether an indictment properly charges an offense is a matter of law which we may consider de novo if the defendant makes a timely objection to the indictment.” United States v. Darby, 37 F.3d 1059, 1062 (4th Cir.1994). When a criminal defendant challenges the sufficiency of an indictment prior to the verdict, we apply a heightened scrutiny. Cf. Finn v. United States, 256 F.2d 304, 307 (4th Cir. 1958) (“Indictments and informations are construed more liberally after verdict than before.... ”); United States v. Hooker, 841 F.2d 1225, 1229 (4th Cir.1988) (en banc) (“[I]n ... cases where the objection is made after verdict, the alleged deficiency is to be reviewed for validity under a more liberal standard and is not necessarily absolutely invalid.”). As we have previously recognized, ‘[a]n indictment must contain the elements of the offense charged, fairly inform a defendant of the charge, and enable the defendant to plead double jeopardy as a defense in a future prosecution for the same offense.’ United States v. Daniels, 973 F.2d 272, 274 (4th Cir.1992) (citing Russell v. United States, 369 U.S. 749, 763-64, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962), cert. denied, 506 U.S. 1086, 113 S.Ct. 1064 (1993)). Moreover, the indictment must include every essential element of an offense, or else the indictment is invalid; and mere reference to the applicable statute does not cure the defect. Id. at 274; Hooker, 841 F.2d at 1228; United States v. Pupo, 841 F.2d 1235, 1239 (4th Cir.) (en banc), cert. denied, 488 U.S. 842, 109 S.Ct. 113,102 L.Ed.2d 87 (1988). Darby, 37 F.3d at 1063 (emphasis added). B. 7 U.S.C. § 2156(a)(1) provides that “[e]xeept as provided in paragraph (2), it shall be unlawful for any person to knowingly sponsor or exhibit an animal in an animal fighting venture.” 7 U.S.C.A. § 2156(a)(1) (West Supp.2008) (emphasis added). However, Count I" }, { "docid": "21364564", "title": "", "text": "four-page factual background, the superseding indictment is an elements-only indictment. According to the Government, the superseding indictment incorporates “a handful of technical revisions” in light of the United States Supreme Court’s intervening decision in McDonnell v. United States, — U.S. -, 136 S.Ct. 2355, 195 L.Ed.2d 639 (2016). II. STANDARD OF REVIEW To warrant dismissal under Rule 12(b)(3)(B)(v), a defendant must “demonstrate that the allegations therein, even if true, would not state an offense.” United States v. Thomas, 367 F.3d 194, 197 (4th Cir. 2004). Rule 7 of the Federal Rules of Criminal Procedure provides “[t]he indictment or information must be a plain, concise, and definite written statement of the essential facts constituting the offense charged.” Fed. R. Crim. P. 7(c)(1). The court must accept all allegations in the indictment as true and should regard the indictment in a “practical,” rather than “purely technical,” manner. United States v. Matzkin, 14 F.3d 1014, 1019 (4th Cir. 1994); see United States v. Terry, 257 F.3d 366, 371 (4th Cir. 2001) (King, J., concurring) (“It is elementary that a motion to dismiss [a count of the] indictment implicates only the legal sufficiency of its allegations, not the proof offered by the Government.”). Dismissal under Rule 12(b)(3) may not be predicated upon the insufficiency of the evidence to prove the indictment’s charges. United States v. Critzer, 951 F.2d 306, 307 (11th Cir. 1992) (“There is no summary judgment procedure in criminal cases. Nor do the rules provide for a pre-trial determination of sufficiency of the evidence.”). III. DISCUSSION Defendant seeks dismissal of the superseding indictment for failure to state an offense. Fed. R. Crim. P. 12(b)(3)(B)(v), Defendant argues both count one and count two fail to allege an “official act” under the federal bribery statute, 18 U.S.C. § 201, as interpreted by McDonnell. Def.’s Mot. Dismiss at 4. As for count three—violation of 18 U.S.C. § 1512(c)(2)—Defendant avers it fails to allege corrupt conduct. Id. at 9. Defendant argues further that the statute is “unconstitutional as applied and/or on its face.” Id. at 4. A. The superseding indictment is legally sufficient to state the" }, { "docid": "21364563", "title": "", "text": "ORDER JAMES C. FOX, Senior United States District Judge Before the court is Defendant’s motion to dismiss the superseding indictment for failure to state an offense pursuant to Rule 12(b)(3)(B)(v) of the Federal Rules of Criminal Procedure. [DE 71]. The Government responded and Defendant replied. (DEs 84-85]. I. BACKGROUND On November 3, 2015, a grand jury returned a three-count indictment against Defendant—a North Carolina superior court judge—charging him with bribery of a public official, 18 U.S.C. § 201(b)(1) (count 1), providing an illegal gratuity to a public official, 18 U.S.C. § 201(c)(1)(A) (count 2), and attempted influence of an official proceeding, 18 U.S.C. § 1512(c)(2) (count 3). The charges arise out of Defendant’s alleged efforts to solicit, in exchange for payment, the assistance of a Federal Bureau of Investigation (“FBI”) task force officer (“TFO”) in acquiring and disclosing certain text messages sent and received by Defendant’s wife. On August 23, 2016, a successor grand jury returned a superseding indictment, alleging the same criminal violations as the original indictment. Unlike the original indictment, which included a four-page factual background, the superseding indictment is an elements-only indictment. According to the Government, the superseding indictment incorporates “a handful of technical revisions” in light of the United States Supreme Court’s intervening decision in McDonnell v. United States, — U.S. -, 136 S.Ct. 2355, 195 L.Ed.2d 639 (2016). II. STANDARD OF REVIEW To warrant dismissal under Rule 12(b)(3)(B)(v), a defendant must “demonstrate that the allegations therein, even if true, would not state an offense.” United States v. Thomas, 367 F.3d 194, 197 (4th Cir. 2004). Rule 7 of the Federal Rules of Criminal Procedure provides “[t]he indictment or information must be a plain, concise, and definite written statement of the essential facts constituting the offense charged.” Fed. R. Crim. P. 7(c)(1). The court must accept all allegations in the indictment as true and should regard the indictment in a “practical,” rather than “purely technical,” manner. United States v. Matzkin, 14 F.3d 1014, 1019 (4th Cir. 1994); see United States v. Terry, 257 F.3d 366, 371 (4th Cir. 2001) (King, J., concurring) (“It is elementary that" }, { "docid": "8323833", "title": "", "text": "§ 641 completed prior to September 9, 2004. Rec. Dec. at 1. The Magistrate Judge based her recommendation on the conclusion that a § 641 embezzlement charge is not a continuous offense. The Court arrives at a similar conclusion, but by a different route. II. DISCUSSION A. A Preliminary Question A preliminary question is what the Court may properly consider in ruling on a motion to dismiss the indictment. See United States v. Stevens, 578 F.Supp.2d 172, 177 (D.Me.2008). Traditional civil motion practice is not generally available in criminal law because inter alia unlike a civil action, a criminal prosecution is typically initiated by grand jury, which is carrying out a constitutional function. Id. Thus, for purposes of a motion to dismiss, a court must accept the allegations in the indictment as true. Boyce Motor Lines, Inc. v. United States, 342 U.S. 337, 343 n. 16, 72 S.Ct. 329, 96 L.Ed. 367 (1952). Moreover, motions to dismiss in criminal law are constrained by a defendant’s constitutional right to a jury trial, so the Court cannot weigh factual findings that must be left for jury determination. United States v. Levesque, 681 F.2d 75, 78 (1st Cir.1982) (noting that “[wjhether the crime occurred in Indian country was thus a jurisdictional fact susceptible to determination without reference to any of the facts involved in determining defendants’ guilt or innocence”). Although Rule 47(d) permits parties to submit affidavits in support of a motion, neither Rule 12(b) nor Rule 47(d) “was intended to permit speaking motions,’ that is, motions that require facts outside the pleadings. Were the rule otherwise, the truth of the allegations could be challenged by affidavit, and the pretrial motion could be turned into a trial of the general issue.” 1A Charles Alan Wright & Andrew D. Leipold, Federal Practice and Procedure § 194 (4th ed. 2008); Fed. R.Crim.P. 12(b)(2) (stating that a party may raise by pretrial motion any objection “that the court can determine without a trial of the general issue”); see also Fed. R. Crim. P. 47 1944 advisory committee note 3 (stating “that a motion may be supported" }, { "docid": "21539941", "title": "", "text": "to other organizations or business contacts. Id. ¶¶ 11-12. Siciliano assisted Vassiliev’s girlfriend in obtaining a visa to travel to Canada in 2007. Id. ¶ 15. Around the same time, Siciliano also considered arranging to obtain a visa for Sidorenko by hiring Sidorenko as a consultant for ICAO. Id. ¶ 16. Additionally, the three defendants arranged to have Defendant Siciliano’s son sent to Dubai to work for Sidorenko. Id. ¶20. During this time period, Siciliano, who worked in Canada, wrote an e-mail message to Vassiliev, residing in Dubai, seeking payment of “dues” via wire transfer to a Swiss bank account. Id. ¶ 17. • A few years later, Siciliano, still in Canada, sent an e-mail advising Vassiliev and Sidorenko, still in Dubai, that they owed him three months’ payment. Id. ¶ 18. A few weeks after this email, Siciliano sent another email to Vassiliev referencing future projects, receiving “the fruits of [their] marketing agreement^]” and inquiring about picking up his dues. Id. ¶ 19. All of this conduct. occurred outside of the United States between three defendants who are not United States citizens, who never worked in the United States, and whose use of wires did not reach or pass through the United States. See generally id. II. LEGAL STANDARD On a motion to dismiss pursuant to Federal Rule of Criminal Procedure 12(b), the allegations of the indictment must be viewed as a whole and taken as true. See Boyce Motor Lines, Inc. v. United States, 342 U.S. 337, 343 n. 16, 72 S.Ct. 329, 96 L.Ed. 367 (1952); Buckley, 689 F.2d at 897. The indictment “shall be a plain, concise[,] and definite written statement of the essential facts constituting the offense charged.” Fed.R.Crim.P. 7(c). The Ninth Circuit has held that “an indictment setting forth the elements of the offense is generally sufficient.” United States v. Fernandez, 388 F.3d 1199, 1220 (9th Cir.2004); see also United States v. Woodruff, 50 F.3d 673, 676 (9th Cir.1995) (“In the Ninth Circuit, ‘[t]he use of a “bare bones” information — that is one employing the statutory language alone — is quite common and" }, { "docid": "4823703", "title": "", "text": "OPINION AND ORDER BESOSA, District Judge. On March 13, 2012, defendant Rafael Colon-Quiles (“Colon-Quiles”) filed a motion to dismiss the indictment against him for possession of a revolver with an obliterated serial number in violation of 18 U.S.C. § 922(k). (Docket No. 25.) Defendant Colon-Quiles alleges that section 922(k) is unconstitutional because it is not a valid exercise of Congress’s authority under the Commerce Clause and because the statute violates his rights under the Second Amendment. Id. On March 29, 2011, the government opposed defendant’s motion. (Docket No. 33.) The Court has reviewed the parties’ arguments, and DENIES defendant’s motion to dismiss the indictment. I. Standard Governing Motion to Dismiss an Indictment When considering whether to dismiss a count of an indictment, a court “must accept the allegations in the indictment as true.” See United States v. Young, 694 F.Supp.2d 25, 27 (D.Me.2010) (citing Boyce Motor Lines, Inc. v. United States, 342 U.S. 337, 343 n. 16, 72 S.Ct. 329, 96 L.Ed. 367 (1952)). The Court must consider whether the allegations in the indictment are sufficient to inform a jury as to the charged offense. See United States v. Sampson, 371 U.S. 75, 76, 83 S.Ct. 173, 9 L.Ed.2d 136 (1962); United States v. Barker Steel Co., Inc., 985 F.2d 1123, 1125 (1st Cir.1993). “[A]n indictment is sufficient if it, first, contains the elements of the offense charged and fairly informs a 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, 41 L.Ed.2d 590 (1974) (internal citations omitted). A court “read[s] an [indictment] as a whole” and “construefs] the allegations in a practical sense, with all necessary implications.” Barker, 985 F.2d at 1125 (internal citations omitted). II. Section 922(k) is a Valid Exercise of Congress’s Authority Under the Commerce Clause Defendant Colon-Quiles argues that section 922(k) is an invalid exercise of Congress’s authority under the Commerce Clause because the activity that it prohibits does not have a substantial effect upon" }, { "docid": "21832302", "title": "", "text": "prerequisite to payment. III. Palin and Webb raise three additional arguments, none of which have merit. A. First, they claim the district court erred in denying their motions for a new trial by failing to hear new evidence concerning materiality. Appellants’ Br. 16-17. Under Fed. R. Crim. P. 33, a district court may vacate a criminal judgment and grant a new trial “if the interest of justice so requires.” We review a district court’s denial of a motion for a new trial for abuse of discretion, and we have noted that a court should exercise its discretion to grant a new trial “sparingly.” United States v. Arrington, 757 F.2d 1484, 1486 (4th Cir. 1985). Here, the court’s holding that the misrepresentations at issue were material is amply supported by. an extensive record. Accordingly, it did not abuse its discretion in refusing to order a new trial. B. Second, Palin and Webb claim the district court erred by convicting them on the basis of an insufficiently- specific indictment. Appellants’ Br. 26-28. We review the sufficiency of the indictment de novo; our review is heightened here because Palin and Webb objected to the indictment pre-verdict. See United States v. Kingrea, 573 F.3d 186, 191 (4th Cir. 2009). “An indictment must contain the elements of the offense charged, fairly inform a defendant of the charge, and enable the defendant to plead double jeopardy as a defense in a future prosecution for. the same offense.” United States v. Daniels, 973 F.2d 272, 274 (4th Cir. 1992). Absent a charge of “[e]very essential element of an offense,” an indictment is invalid. Id. “When the words of a statute are used to describe the offense generally, they ‘must be accompanied with such a statement of the facts and circumstances as will inform the accused of the specific offence, coming under the general description, with which he is charged.’ ” United States v. Brandon, 298 F.3d 307, 310 (4th Cir. 2002) (quoting Hamling v. United States, 418 U.S. 87, 117-18, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974)). The indictment challenged here was valid. It cites the statutes" }, { "docid": "19800981", "title": "", "text": "of the offense charged, fairly inform a defendant of the charge, and enable the defendant to plead double jeopardy as a defense in a future prosecution for the same offense.’ United States v. Daniels, 973 F.2d 272, 274 (4th Cir.1992) (citing Russell v. United States, 369 U.S. 749, 763-64, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962), cert. denied, 506 U.S. 1086, 113 S.Ct. 1064 (1993)). Moreover, the indictment must include every essential element of an offense, or else the indictment is invalid; and mere reference to the applicable statute does not cure the defect. Id. at 274; Hooker, 841 F.2d at 1228; United States v. Pupo, 841 F.2d 1235, 1239 (4th Cir.) (en banc), cert. denied, 488 U.S. 842, 109 S.Ct. 113,102 L.Ed.2d 87 (1988). Darby, 37 F.3d at 1063 (emphasis added). B. 7 U.S.C. § 2156(a)(1) provides that “[e]xeept as provided in paragraph (2), it shall be unlawful for any person to knowingly sponsor or exhibit an animal in an animal fighting venture.” 7 U.S.C.A. § 2156(a)(1) (West Supp.2008) (emphasis added). However, Count I of the indictment in this case charged Kingrea as follows: the defendants, willfully and knowingly combined, conspired, confederated and agreed together, with each other and with diverse other persons known and unknown ... to knowingly sponsor and exhibit an animal fighting venture, in which any animal in the venture was moved in interstate commerce, in violation of Title 7, United States Code, Section 2156(a)(1).... J.A. 16-17 (emphasis added). Kingrea argues that by omitting the words “an animal in” from the indictment, the government failed to set forth a necessary element of the offense charged, which contravenes the Fifth Amendment requirement that an indictment expressly charge all of the elements of the offense. Kingrea also argues that the district court’s instruction to the jury, which contained the statutory phrase omitted from the indictment, was an impermissible constructive amendment. Finding that our previous decision in Hooker controls, we agree with Kingrea that the indictment against him was insufficient and that the district court’s subsequent jury instructions could not cure this fatal defect. The elements of a crime" }, { "docid": "21832303", "title": "", "text": "the indictment de novo; our review is heightened here because Palin and Webb objected to the indictment pre-verdict. See United States v. Kingrea, 573 F.3d 186, 191 (4th Cir. 2009). “An indictment must contain the elements of the offense charged, fairly inform a defendant of the charge, and enable the defendant to plead double jeopardy as a defense in a future prosecution for. the same offense.” United States v. Daniels, 973 F.2d 272, 274 (4th Cir. 1992). Absent a charge of “[e]very essential element of an offense,” an indictment is invalid. Id. “When the words of a statute are used to describe the offense generally, they ‘must be accompanied with such a statement of the facts and circumstances as will inform the accused of the specific offence, coming under the general description, with which he is charged.’ ” United States v. Brandon, 298 F.3d 307, 310 (4th Cir. 2002) (quoting Hamling v. United States, 418 U.S. 87, 117-18, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974)). The indictment challenged here was valid. It cites the statutes that Palin and Webb were charged with violating and uses the relevant statutory language to describe the charged crimes. The indictment also sets out the facts and circumstances of the alleged offenses in sufficient detail. For instance, it alleges that Palin and Webb—not the referring doctors—decided the type of test that a patient received. It further alleges that Palin and Webb treated patients differently based on insurance status: uninsured patients received only the basic test while insured patients received both that test and a second more sophisticated and expensive test. This differentiation was not based on patient needs, the indictment adds. The indictment further asserts that Palin and Webb “required” referring physicians to order the medically unnecessary tests for insured patients and then charged insurers for those tests. C. Finally, Palin and Webb claim the evidence at trial was insufficient to convict. Appellants’ Br. 20-26. “We review the sufficiency of the evidence de novo.” United States v. McLean, 715 F.3d 129, 137 (4th Cir. 2013). Our review is limited to determining whether, viewing the evidence" }, { "docid": "22928774", "title": "", "text": "this standard of review, reversal is not warranted unless we find a plain error that affects substantial rights and seriously affects the fairness, integrity, or public reputation of judicial proceedings. Id. “[A]n indictment is sufficient if it, first, contains the elements of the offense charged and fairly informs a 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, 41 L.Ed.2d 590 (1974). Accord United States v. Brandon, 298 F.3d 307, 310 (4th Cir.2002). While it is generally suffi cient that the indictment describes the offense by using the unambiguous language of the statute, that general description “must be accompanied with such a statement of the facts and circumstances as will inform the accused of the specific offense, coming under the general description, with which he is charged.” Hamling, 418 U.S. at 117-18, 94 S.Ct. 2887. See also Russell v. United States, 369 U.S. 749, 765, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962) (noting that an indictment must “descend to the particulars” where the definition of an offense includes generic terms). “Thus, the indictment must also contain a ‘statement of the essential facts constituting the offense charged.’ ” Brandon, 298 F.3d at 310 (quoting Fed.R.Crim.P. 7(c)(1)). Our consideration of these standards is tempered by the absence of an objection to the indictment before the verdict was rendered. Rejecting a challenge to the sufficiency of an indictment, we stated in United States v. Vogt, 910 F.2d 1184 (4th Cir.1990), that “[w]hen a post-verdict challenge to the sufficiency of an indictment is made, every intendment is then indulged in support of ... sufficiency.” Id. at 1201 (internal quotations omitted). As to the factual allegations, we ask whether “the necessary facts appear in any form, or by a fair construction can be found” within the indictment. Id. (internal quotations omitted). As to the elements of the offense, “the indictment will be held sufficient if it contains words of similar import.” Id. (internal quotations omitted)." }, { "docid": "11150232", "title": "", "text": "sufficient.” Finn, supra, at 307, quoting Hartwell v. United States, 107 F.2d 359, 362 (5th Cir.1939). Further, “[an indictment will be] construed more liberally after verdict than before, and every intendment is then indulged in support of the sufficiency.” Id.; see also, United States v. Fogel, 901 F.2d 23 (4th Cir.1990). Finally, indictments which are crafted to track the language of a statute and which charge each element of an offense are valid. Fogel, at 25; Kelly, at 1132. In the case presently before the Court the indictment, as filed, alleges on its face all of the elements of an offense against the United States, and, in so doing, tracks the language of a criminal statute. It is “a plain, concise and definite written statement of the essential facts constituting the offense charged.” Fed.R.Crim.P. 7(c)(1). It does “[contain] the elements of the offense charged and fairly informs a defendant of the charge against which he must defend,” in the language of Hamling, supra. Because the indictment, as filed, meets all of the requirements for facial validity, it could not be dismissed under a motion for arrest of judgment. The indictment, as filed, is technically sufficient as a matter of law to charge an offense, albeit an offense of attempting to pass a counterfeit obligation of the United States under 18 U.S.C. § 472. Thus, the motion in arrest of judgment, as such, must be denied. It is true, as held hereinafter, that the government’s indictment language left out an essential element of the offense described in 18 U.S.C. § 510(a)(2), namely the element of a forged endorsement. But this is not the same as failure to charge an offense altogether. It appears that Defendant has simply mislabeled a motion for judgment of acquittal as a motion for arrest of judgment. B. THE COURT’S MOTION FOR JUDGMENT OF ACQUITTAL Since the offense herein found to have been charged in the indictment is not the one on which the government elected to proceed at trial, and offered evidence to support, the remedy of motion for judgment of acquittal suggests itself, on grounds" }, { "docid": "21292848", "title": "", "text": "S.Ct. 1781, 152 L.Ed.2d 860 (2002). We review the sufficiency of an indictment de novo. An indictment is generally sufficient if it “fully, directly, and expressly ... set[s] forth all the elements necessary to constitute the offense intended to be punished.” United States v. Douglas, 398 F.3d 407, 411 (6th Cir.2005) (internal citation and quotation marks omitted). In particular, the indictment must: (1) “set out all of the elements of the chargefd] offense and must give notice to the defendant of the charges he faces[,]” and (2) “be sufficiently specific to enable the defendant to plead double jeopardy in a subsequent proceeding, if charged with the same crime based on the same facts.” Id. at 413 (internal citation omitted). “An indictment will usually be sufficient if it states the offense using the words of the statute itself, as long as the statute fully and unambiguously states all the elements of the offense.” United States v. Superior Growers Supply, Inc., 982 F.2d 173, 176 (6th Cir.1992). However, the recitation of statutory language “ ‘must be accompanied with such a statement of the facts and circumstances as will inform the accused of the specific offense, coming under the general description with which he is charged.’ ” Id. (quoting Hamling v. United States, 418 U.S. 87, 117-18, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974)). The indictment must be read as a whole, accepting the factual allegations as true, and construing those allegations in a practical sense with all the necessary implications. United States v. Reed, 77 F.3d 139, 140 n. 1 (6th Cir.1996) (en banc). An indictment is to be construed liberally in favor of its sufficiency. United States v. Davis, 306 F.3d 398, 411 (6th Cir.2002). Here, defendant contends that Counts One and Two of the indictment, which allege violations of the mail fraud statute, 18 U.S.C. § 1341, do not adequately. set forth two of the requisite elements of that offense: (1) that defendant acted willfully with an intent to defraud, and (2) that a “material” misrepresentation was made. The mail fraud statute prohibits the use of the mails by any" }, { "docid": "21539942", "title": "", "text": "three defendants who are not United States citizens, who never worked in the United States, and whose use of wires did not reach or pass through the United States. See generally id. II. LEGAL STANDARD On a motion to dismiss pursuant to Federal Rule of Criminal Procedure 12(b), the allegations of the indictment must be viewed as a whole and taken as true. See Boyce Motor Lines, Inc. v. United States, 342 U.S. 337, 343 n. 16, 72 S.Ct. 329, 96 L.Ed. 367 (1952); Buckley, 689 F.2d at 897. The indictment “shall be a plain, concise[,] and definite written statement of the essential facts constituting the offense charged.” Fed.R.Crim.P. 7(c). The Ninth Circuit has held that “an indictment setting forth the elements of the offense is generally sufficient.” United States v. Fernandez, 388 F.3d 1199, 1220 (9th Cir.2004); see also United States v. Woodruff, 50 F.3d 673, 676 (9th Cir.1995) (“In the Ninth Circuit, ‘[t]he use of a “bare bones” information — that is one employing the statutory language alone — is quite common and entirely permissible so long as the statute sets forth fully, directly[,] and clearly, all essential elements of the crime to be punished.’ ”) Additionally, when considering a motion to dismiss the indictment, the indictment “should be read in its entirety, construed according to common sense, and interpreted to include facts which are necessarily implied.” United States v. Berger, 473 F.3d 1080, 1103 (9th Cir.2007) (citing United States v. King, 200 F.3d 1207, 1217 (9th Cir.1999)). Finally, in reviewing a motion to dismiss, the Court “is bound by the four corners of the indictment.” United States v. Boren, 278 F.3d 911, 914 (9th Cir.2002). . III. DISCUSSION A. Extraterritorial Application of Criminal Státutes Siciliano and Vassiliev both argue that the Indictment should be dismissed because the crimes charged do not .apply extraterritorially. See generally MTDs. The Court agrees. 1. Morrisort In Morrison v. Nat’l Australia Bank Ltd., the Court considered the extraterritorial application of SectionlO(b) of the Securities Exchange Act. 561 U.S. 247, 254, 130 S.Ct. 2869, 177 L.Ed.2d 535 (2010). In reviewing a motion to" } ]

[ { "docid": "13263294", "title": "", "text": "IDEA’S exhaustion requirement remains the general rule, regardless of whether the administrative process offers the particular type of relief that is being sought. The issue before us is whether M.P. is entitled to compensatory educational services from the New Prague School District under the IDEA even though his parents failed to exhaust his administrative remedies by requesting a due process hearing while he was still enrolled in that school district. Under Thompson v. Bd. of the Special Sch. Dist. No.1, 144 F.3d 574 (8th Cir.1998), M.P.’s IDEA claim must fail. This court held in Thompson that “[i]f a student changes school districts and does not request a due process hearing, his or her right to challenge prior educational services is not preserved. Subsequent challenges to the student’s previous education become moot because the new school district is responsible for providing a due process hearing.” Id. at 579. M.P.’s parents did not request a due process hearing until after they enrolled M.P. in the Northfield public schools. M.P. argues that more recent Eighth Circuit precedent, Indep. Sch. Dist. No. 284 v. A.C., 258 F.3d 769 (8th Cir.2001), provides a means of relief for M.P. A.C. was a 15-year-old girl who had many school-related problems, which included classroom disruption, profanity, insubordination, and truancy. Outside of school she used alcohol and drugs, ran away from home, and was hospitalized three times for threatening or attempting suicide. The district agreed to an Independent Educational Evaluation of A.C. by a neuropsychologist, who concluded that A.C. should be placed in a secure residential treatment facility. The dispute went to an administrative hearing before the Minnesota Department of Children, Families and Learning, where it was determined by the independent hearing officer that the district should provide 100 hours of compensatory education and convene an IEP meeting to identify a residential placement for A.C. The hearing review officer affirmed, and the school district commenced an action in federal district court. The district court affirmed the award of compensatory education but reversed as to the residential placement decision, finding that residential placement was not necessary to address her educational" } ]

[ { "docid": "13263297", "title": "", "text": "private placement at the time, and then sued the District for reimbursement, the claim would not be moot .... [T]he claim is that the statute obligated the school district to pay for the placement during the time when it was responsible for the student’s education. Assuming that A.C.’s claim has merit, it would not make sense to deny her a remedy against the District just because her parent did not or could not pay for the placement that the District denied her. A.C., 258 F.3d at 774-75 (citation omitted). We do not see how the holding in A.C. can assist M.P. under the current circumstances. Whereas A.C.’s mother requested and received a due process hearing before removing her daughter from the delinquent school district, and had therefore preserved a record of the district’s deficiencies for future litigation, M.P.’s parents failed to do so. We cannot provide relief under such circumstances. See also Smith v. Special Sch. Dist. No.1, 184 F.3d 764, 767 (8th Cir.1999) (affirming the district court’s dismissal of IDEA claim on the ground that plaintiff was not entitled to a due process hearing where he neither resided nor attended school at the time he requested the hearing on the basis of Thompson); N.B. v. Alachua County Sch. Bd., 84 F.3d 1376, 1379 (11th Cir.1996) (“If parents can bypass the exhaustion requirement of the IDEA by merely moving their child out of the defendant school district, the whole administrative scheme established by the IDEA would be rendered nugatory.”). M.P. argues that the Thompson holding unfairly requires him to forego his entitlement to due process and remedial relief for violations of his civil rights as a disabled student and relieves the New Prague School District of any liability for its violations. M.P. also asserts that he still lives in the New Prague School District even though he attends a Northfield school, and suggests that because he remains within the bounds of the New Prague School District, it still has jurisdiction over his claim. We determined in Thompson, where the student’s residence remained the same after he enrolled in a charter" }, { "docid": "23494632", "title": "", "text": "approved by the State, the portion which the LEA and SEA must contribute, respectively, is determined by Maryland Code § 8-417.3. See Md. Code Ann.,Educ. § 8-417.3. Similar to IDEA, Title 13A of the Code of Maryland Regulations also contains procedural safeguards to ensure notice and an opportunity for parents of a child with a disability to appeal decisions affecting the child’s educational program. Section 05.01.13 provides that parents shall be provided prior written notice of a decision to propose or refuse to initiate or change the educational placement of a student and that the notice shall give a full explanation of all procedural safeguards available to parents under IDEA. See Md. Regs. Code tit. 13A, §§ 05.01.13(B), (C). In addition, § 05.01.14 provides for a local due process hearing concerning the educational placement of any student or the provision of a free appropriate public education to the student and establishes hearing procedures to ensure the effective participation of the child’s parents. See id. § 05.01.14. Finally, § 05.01.15 provides for an opportunity to appeal to the State Hearing Review Board where local procedures have been exhausted. See id. § 05.01.15. B. Eric Gadsby, a seventeen-year-old with learning disabilities, is a resident of the City of Baltimore. Although Eric attended a private day school through the eighth grade, in May 1993, Eric and his parents requested that the Baltimore City Public Schools (BCPS) evaluate Erie for special education services. By the beginning of the 1993-94 school year, however, BCPS had failed to develop an individualized education program (IEP) for Eric, as required by IDEA, see 20 U.S.C. §§ 1401(a)(18)(D), 1414(a)(5), and the Gadsbys enrolled Eric in the Forman School, a private residential school in Connecticut. BCPS developed its first IEP for Eric on October 13, 1993. Under the IEP proposed by BCPS, Eric would attend regular public school classes for twenty hours a week and receive ten hours of special education services a week. In November 1993, the Gadsbys challenged the proposed IEP and requested a local due process hearing. See Md. Regs. Code tit. 13A, § 05.01.14(A). The hearing" }, { "docid": "8597262", "title": "", "text": "to enable the child to receive educational benefits.” Rowley, 458 U.S. at 206-07, 102 S.Ct. 3034. The IDEA focuses on a set of extensive procedures that must be followed in formulating an IEP for a particular child. See 20 U.S.C. § 1414. In addition, the IDEA sets forth a set of procedural safeguards that help ensure that a child receives a FAPE. See id. § 1415. A child may file a timely complaint and request a due process hearing for any violation of the IDEA. Id. § 1415(b), (f). During the pendency of the due process hearing, the child is entitled to stay put at his “then-current educational placement,” regardless of the eventual outcome of the hearing. Id. § 1415(j)- II. Factual Background K.D. is a ten-year-old boy who has been diagnosed with moderate to severe autism. In November 2006, KD.’s mother, C.L., enrolled him at Loveland, a private school, after he spent his kindergarten year in public school. Subsequently, C.L. filed a request for a due process hearing with the DOE. The DOE and C.L. settled the due process request on March 23, 2007. As part of the settlement agreement, the DOE agreed to pay KD.’s tuition at Love-land for the 2006-07 school year. In addition to the dismissal with prejudice of the hearing request, C.L. agreed to sign consent forms allowing DOE employees to conduct observations of K.D. at Loveland, and to obtain KD.’s 2006-07 education records. The settlement agreement also required C.L. to “participate in transition planning for [K.D.] to a Department of Education public school at the end of the 2006-07 school year, if appropriate.” Accordingly, on April 5, 2007, the DOE held the first IEP meeting for K.D. for the 2007-08 school year, with both C.L. and the Loveland placement director in attendance. At the meeting, the parties agreed to continue the meeting until July 2007 due to time constraints. After this initial meeting, the DOE conducted one visit at Loveland on April 19, 2007 to observe K.D. Subsequently, C.L. sent a letter to the DOE placing limitations on future observations of K.D. because she" }, { "docid": "14184356", "title": "", "text": "to the child .... ” 20 U.S.C. § 1414(d)(l)(A)(i)-(iii). As we have noted, “the IEP is more than a mere exercise in public relations. It forms the basis for the [disabled] child’s entitlement to an individualized and appropriate education.” Doe v. Ala. State Dep’t of Educ., 915 F.2d 651, 654 (11th Cir.1990). The IDEA provides important procedural safeguards to parents and children, including the right to present complaints regarding “the identification, evaluation, or educational placement of the child, or the provision of [FAPE] ....” 20 U.S.C. § 1415(b)(6); Doe, 915 F.2d at 655. Further, parents and children have a right to present complaints regarding placement of the child or the provision of FAPE and to initiate an impartial due process hearing. 20 U.S.C. § 1415(f)(1); Doe, 915 F.2d at 655. Finally, parents have a right to appeal the decision of the administrative hearing officer to a United States district court, where the district court judge will review the complaint de novo and may hear additional evidence if necessary. 20 U.S.C. § 1415(i)(2)(A); Doe, 915 F.2d at 655. II. Facts This case arises from proceedings initiated by CP, a disabled child under the IDEA. The relevant facts are as follows. CP was enrolled in Leon County public schools from 1996 through 2004. During that time, the School Board categorized CP, who suffered from Post Traumatic Stress Syndrome and other disabilities, as emotionally handicapped, making him eligible for special education and related services. From 1996 through 2001, CP received special education and related services from the School Board both in mainstream educational facilities and at PACE, a day treatment program for students with emotional and behavioral problems. While CP made progress in school, he continued to struggle academically and had frequent behavioral problems, including a number of juvenile offenses. In March 2001, following a period of commitment at West Florida Wilderness Institute, a privately run, moderate risk facility for first time and repeat nonviolent juvenile offenders, CP enrolled at Lawton Chiles High School, a mainstream facility. In May 2002, prior to the end of the 2001-2002 school year, Chiles administrators convened an" }, { "docid": "15000725", "title": "", "text": "the Parents attorneys’ fees, finding that they were not a “prevailing party” within the meaning of the attorneys’ fees provisions of the IDEA. The Parents appeal the district court’s dismissal of their § 504 and §§ 1983 and 1988 claims and its denial of attorneys’ fees and reimbursement for Brock’s continued placement in the private school after the first semester of the 1994-95 school year. We affirm. I. Brock was educated in the School District from the time he began attending kindergarten in the 1988-84 school year until the Parents unilaterally removed him from the tenth grade on March 21, 1994. When Brock was in the seventh grade, the School District evaluated him for possible special education services and prepared a case study. A multidisciplinary conference was convened, which reviewed the ease study and found him eligible for special education as a student with a specific learning disability. Brock had previously been diagnosed by a family physician during his first grade year as having ADHD. The various parties disagree on the severity of Brock’s disability. The School District diagnosed Brock has having a “mild” disability. The Level I hearing officer described Brock’s learning disability as “moderate,” and the Level II hearing officer found that the Parents had not shown that Brock “is more than mildly or moderately handicapped.” On February 23, 1994, the School District proposed the IEP-1 to, the Parents. Shortly thereafter, because Brock was failing or obtaining barely passing grades in most of his courses, the Parents enrolled him at Brehm Preparatory School (“Brehm”), an Illinois-approved residential school for public school placements that educates students who are classified as learning disabled and attention deficit disordered. The Parents then requested a Level I due process hearing to challenge the IEP-1 as failing to provide Brock with a FAPE program under the IDEA. After a three-day hearing, the Level I hearing officer found that the IEP-1 did not provide a FAPE to Brock, citing the standard set forth in Board of Education v. Rowley, 458 U.S. 176, 102 S.Ct. 3034, 73 L.Ed.2d 690. The hearing officer stated that: B[rock] did" }, { "docid": "17022763", "title": "", "text": "hearing officer held that an appropriate IEP for Terry must include the approaches proposed by defendants and the MPAS, and ordered the parties to hold an IEPC to implement these approaches. The hearing officer did not order the use of SIBIS, but as to issues two and three, the hearing officer did find that neither Michigan’s Corporal Punishment Act nor the school guidelines prohibited SIBIS. The officer added that the device could be used only after all reasonable alternatives had failed. Finally, the hearing officer held that SIBIS was not a “related service” under the IDEA. In June 1990, an IEPC was held to develop the new IEP. Plaintiff objected to certain specifics of the IEP. On September 21, 1990, the hearing officer issued a second decision which addressed plaintiffs objections, but left the first decision otherwise unchanged. The parties agreed to the final IEP on November 28, 1990. On August 23, 1990, plaintiff filed a motion for attorney’s fees under IDEA, 20 U.S.C. § 1415(e)(4)(B). On December 26, 1990, the district court dismissed plaintiffs second complaint without prejudice. On December 27, 1990, plaintiff Sought a hearing on her motion for attorney’s fees. The district court granted plaintiffs motion for attorney’s fees on December 13, 1991 without a hearing, and awarded her 25% of her attorney’s fees because she had succeeded on only one of the four issues involved. Both parties' now appeal the district court’s award of attorney fees. II. The Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §§ 1400-1485, requires that local schools provide a “free appropriate public education” to “children with disabilities.” 20 U.S.C. §§ 1400(c), 1415(a). To implement the IDEA, schools must pre pare a written IEP at the beginning of each school year for each disabled student. 20 U.S.C. §§ 1401(20), 1414(a)(5); 34 C.F.R. §§ 300.340-.349 (1992). Parents are guaranteed notice of school decisions and access to school records regarding their child. 20 U.S.C. § 1415(b)(1)(A), (C)-(D). Dissatisfied parents may challenge a school’s proposed IEP at “an impartial due process hearing.” 20 U.S.C. § 1415(b)(1)(E), (b)(2). The IDEA also provides for an award of" }, { "docid": "13263298", "title": "", "text": "that plaintiff was not entitled to a due process hearing where he neither resided nor attended school at the time he requested the hearing on the basis of Thompson); N.B. v. Alachua County Sch. Bd., 84 F.3d 1376, 1379 (11th Cir.1996) (“If parents can bypass the exhaustion requirement of the IDEA by merely moving their child out of the defendant school district, the whole administrative scheme established by the IDEA would be rendered nugatory.”). M.P. argues that the Thompson holding unfairly requires him to forego his entitlement to due process and remedial relief for violations of his civil rights as a disabled student and relieves the New Prague School District of any liability for its violations. M.P. also asserts that he still lives in the New Prague School District even though he attends a Northfield school, and suggests that because he remains within the bounds of the New Prague School District, it still has jurisdiction over his claim. We determined in Thompson, where the student’s residence remained the same after he enrolled in a charter school, that “[i]f a student changes school districts and does not request a due process hearing, his or her right to challenge prior educational services is not preserved.” 144 F.3d at 579. Even though the court is sympathetic to M.P.’s concerns that the New Prague School District inadequately addressed his special education needs under the IDEA, it is bound by the Thompson holding. We therefore affirm the district court on this matter. B. Section 504 Section 504 of the Rehabilitation Act prohibits discrimination on the basis of handicap in programs receiving federal financial assistance. 29 U.S.C. § 794(a). It provides in relevant part, “[n]o otherwise qualified individual with a disability in the United States ... shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” To establish a prima facie case of disability discrimination under Section 504, the plaintiff must prove: (1) he is a qualified individual with a disability; (2)" }, { "docid": "21946147", "title": "", "text": "accessible to the public.” Id. The Court explicitly stated that Memphis “does not support a general rule that notice of procedures and remedies is required.” Id. In Perkins, the procedures and remedies available were codified in the state statutes and case law and the Supreme Court held this was sufficient notice of the remedies. The Court stated that notice of such remedies is not necessary when “state law remedies ... are established by published, generally available state statutes and case law. Once the property owner is informed that his property has been seized, he can turn to these public sources to learn about the remedial procedures available to him.” Id. at 241, 119 S.Ct. 678. Based on the foregoing, the Due Process clause of the United States Constitution did not mandate notice to the Plaintiffs of their administrative appeal rights. Missouri statutes clearly set out the processes available to a licensee. Plaintiffs could have lodged a tax protest with DOR and requested an informal hearing with the Director of DOR. Mo.Rev.Stat. § 143.631. Then, if DOR issued a decision that was not favorable to them, Plaintiffs could have filed a complaint with Missouri’s Administrative Hearing Commission (“AHC”) under Mo.Rev.Stat. § 621.050 (“[A]ny person or entity shall have the right to appeal to the [AHC] from any finding, order, decision, assessment, or additional assessment made by the director of revenue.”). Under section 621.050, the AHC must conduct a hearing after a party files a claim against DOR. Id. If the AHC had rendered an adverse opinion against Plaintiffs, then they could have appealed that decision to the Missouri Court of Appeals. Mo.Rev. Stat. § 621.189 (providing Missouri Court of Appeals with jurisdiction over appeals from AHC in tax disputes). Plaintiffs could have learned of these remedies by searching Missouri’s statutes. Under Perkins, the Notices sent to Plaintiffs were not constitutionally deficient under either the Missouri Constitution or the United States Constitution. See also Grayden v. Rhodes, 345 F.3d 1225, 1241-1242 (11th Cir.2003) (relying on Perkins to find that notice was sufficient where tenants could have turned to city code to ascertain" }, { "docid": "20715188", "title": "", "text": "on Plaintiffs claims for attorney’s fees, which coincides with the date that a settlement offer was made. I. BACKGROUND Plaintiff DeLa Cruz is the parent of I.D. (hereinafter referred to as “I.D.” or “the student”), a minor child who is a student with a disability. (Memorandum at 2.) The IDEA guarantees all children with disabilities a Free Appropriate Public Education (“FAPE”), 20 U.S.C. § 1400(d)(1)(A), and in general, FAPE “is available to all children with disabilities residing in the State between the ages of 3 and 21,....” 20 U.S.C. § 1412(a)(1)(A). Defendant District of Columbia is a municipal corporation that operates the District of Columbia Public Schools System (“DCPS”). (Complaint [1] ¶ 4.) The District receives federal funds pursuant to the IDEA to ensure access to a Free and Appropriate Public Education (“FAPE”) and it is obliged to comply with applicable federal regulations and statutes including the IDEA. See 20 U.S.C. § 1411. In the instant case, the student, I.D., was placed at a DCPS special education school (“School A”) when he was in first grade and he remained there until he completed eighth grade at the end of School Year (“SY”) 2012-2013. (Motion, Exh. 2 [Hearing Officer’s Determination] (“HOD”) at 2.) The student’s IEP that was developed on February 11, 2013, while he attended School A, required a full-time out of general education placement. (Id.) The IEP team discussed placement for I.D. for SY 2013-2014, and determined that the student’s neighborhood school (“School B”) would not be appropriate. (HOD at 2.) In July 2013, however, the District determined that the student would be assigned to School B for SY 20132014. (HOD at 2.) Petitioner obtained funding from the District for a comprehensive psychological evaluation of I.D., which was performed in August 2013, and the evaluator concluded that I.D. should be placed in a therapeutic school because of his disability classification(s). (Id) Plaintiff DeLa Cruz filed an Administrative Due Process Complaint on August 30, 2013, requesting that the Hearing Officer find that DCPS denied the student’s right to a [FAPE] by “failing] to perform necessary evaluations in order to develop" }, { "docid": "8597261", "title": "", "text": "conformity with the individualized education program required under section 1414(d) of this title.” 20 U.S.C. § 1401(9). In order to provide children with a FAPE, schools and parents work together to develop an individualized education program (IEP). Schaffer v. Weast, 546 U.S. 49, 53, 126 S.Ct. 528, 163 L.Ed.2d 387 (2005). An IEP is defined as a “written statement for each child with a disability that is developed, reviewed, and revised in accordance with section 1414(d) of this title.” 20 U.S.C. § 1401(14). The IEP is, in effect, a “comprehensive statement of the educational needs of a handicapped child and the specially designed instruction and related services to be employed to meet those needs.” Burlington, 471 U.S. at 368, 105 S.Ct. 1996. A state must comply both procedurally and substantively with the IDEA. Amanda J. v. Clark Cnty. Sch. Dist., 267 F.3d 877, 881 (9th Cir.2001). While the IDEA does not define the particular substantive level of education that must be provided to a child, the state must provide an education that is “reasonably calculated to enable the child to receive educational benefits.” Rowley, 458 U.S. at 206-07, 102 S.Ct. 3034. The IDEA focuses on a set of extensive procedures that must be followed in formulating an IEP for a particular child. See 20 U.S.C. § 1414. In addition, the IDEA sets forth a set of procedural safeguards that help ensure that a child receives a FAPE. See id. § 1415. A child may file a timely complaint and request a due process hearing for any violation of the IDEA. Id. § 1415(b), (f). During the pendency of the due process hearing, the child is entitled to stay put at his “then-current educational placement,” regardless of the eventual outcome of the hearing. Id. § 1415(j)- II. Factual Background K.D. is a ten-year-old boy who has been diagnosed with moderate to severe autism. In November 2006, KD.’s mother, C.L., enrolled him at Loveland, a private school, after he spent his kindergarten year in public school. Subsequently, C.L. filed a request for a due process hearing with the DOE. The DOE and" }, { "docid": "20611057", "title": "", "text": "regular contact with District officials to attempt to address the bullying situation. In March 2010, G.L. was evaluated by an intermediate unit psychologist, who conditionally diagnosed him with two additional disabilities, including post-traumatic stress disorder caused by the ongoing bullying. On March 8, 2010, frustrated with the bullying that had been allowed to escalate and apparently had caused additional disabilities in their child, upset by his academic struggles, and dissatisfied with the IEP offered by the District, G.L.’s parents withdrew him from the school and enrolled him in a cyber charter school. The District has conceded that March 9, 2010 reflects the date G.L.’s parents “knew or should have known” about the deprivation of a free appropriate public education to G.L., that is, the reasonable discovery date for purposes of this case. On January 9, 2012, within two years of the reasonable discovery date, and thus within the statute of limitations set forth in § 1415(f)(3)(C), G.L.’s parents filed their due process complaint, alleging that the District denied him a FAPE and requesting compensatory education for September 2008 through March 2010 — that is, the entire period that G.L. was allegedly denied a FAPE by the District before he withdrew from school. B. Procedural History As required by the IDEA, G.L.’s parents initially requested their due process hearing by filing a complaint with the Pennsylvania Department of Education, which in turn assigned it to a Hearing Officer. The Hearing Officer acknowledged that the language of § 1415 seemed to describe two different time periods relevant to the IDEA’S statute of limitations: 20 U.S.C. § 1415(f)(3)(C), which provides that a due process complaint must be filed no more than two years after the reason able discovery date, and 20 U.S.C. § 1415(b)(6)(B), which describes the due process complaint as alleging an injury that occurred not more than two years before the reasonable discovery date. However, the Hearing Officer adopted the District’s position that the subsections, first, were actually the “same,” and, second, barred relief for violations that occurred more than two years before the complaint was filed. Put differently, the Hearing" }, { "docid": "14262433", "title": "", "text": "nu merous absences. From approximately the middle of March until June of 1999, Emily attended tutoring provided by her school. On June 10, 1999, the school held ' an IEP meeting to discuss Emily’s upcoming school year. Emily’s father attended the meeting alone and signed the IEP. During the summer of 1999, Emily vacationed at her aunt’s house in Kentucky. In June of 1999, Rafferty completed a parent questionnaire for the Langsford Reading Center (“Langsford”) in Kentucky, and Langsford personnel evaluated Emily on July 15, 1999. Four days before classes began at the District, Rafferty informed the District that Emily would be attending Langsford. From September to December of 1999, Emily received reading tutoring at Langsford. Following her attendance at the reading center, Emily matriculated at St. Francis, a private school in Kentucky. On November 19, 1999, while Emily was still in Kentucky, Rafferty requested an IEP meeting. The District denied the request, stating that Emily was no longer enrolled in the District. Then, in January of 2000, Rafferty requested a due process hearing under IDEA, claiming that the District failed to give her notice of an IEP meeting held on May 27, 1999. After Rafferty made the hearing request, the District initiated a residency hearing. Although she admitted to living in Massachusetts with her mother while recuperating from brain cancer, she argued that their residence had never changed. A decision by McWalters, the Commissioner of the Rhode Island Department of Education, stayed a ruling on residency until the local level IDEA hearing officer made a finding regarding whether Cranston had provided Emily with a Free Appropriate Public Education (“FAPE”). McWalters reasoned that although there was evidence supporting the District’s argument that Emily was sent to Kentucky because Rafferty was ill and unable to care for her, Rafferty should be given the opportunity to argue that she sent Emily to Kentucky because the District had failed to provide a FAPE, a showing that potentially could entitle Rafferty to reimbursement for the private school tuition. The hearing officer determined that Emily’s 1998 and 1999 IEPs were inadequate and inappropriate. Crucially though," }, { "docid": "8293205", "title": "", "text": "determine whether the child has met the goals.” Romer, 992 F.2d at 1043. IEPs must be reviewed at least annually and revised as appropriate. 20 U.S.C. § 1414(d)(4). For the special education and related services provided to a student to constitute a FAPE, they must be “provided in conformity with the [IEP].” Id. § 1401(8)(D). In order to support Congress’s goal to “mainstream” disabled children, the IDEA provides that such students must be educated “[t]o the maximum extent appropriate ... with children who are not disabled” in a “regular educational environment.” 20 U.S.C. § 1412(a)(5)(A) (detailing the meaning of the statutory right to the “least restrictive environment”). Disabled students may only be removed from the regular classroom setting “when the nature or severity of the disability of a child is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily.” Id.; see Ellenberg, 478 F.3d at 1268. When parents believe their child is not being provided a FAPE in the least restrictive environment, they are given “an opportunity to present complaints with respect to any matter relating to the ... educational placement of the child, or the provision of a free appropriate public education to such child.” 20 U.S.C. § 1415(b)(6). After filing a complaint, they are entitled to an impartial due process hearing. Id. § 1415(f). If that hearing is held before a local education agency such as a school board, “any party aggrieved” by the resulting decision may appeal to the state education agency. Id. § 1415(g). Once state administrative procedures are exhausted, “[a]ny party aggrieved by the findings and decision” may file a civil action in state or federal court. Id. § 1415(i)(2); see Ellenberg, 478 F.3d at 1269-70. B. Educational Background S.M. has qualified for special education since the first grade because of severe reading disabilities. In 2002, after attending private school for a number of years, he enrolled at Cleveland Middle School in the APS system for sixth grade. S.M.’s IEP for sixth grade provided that he would attend two regular education classes: physical education and band." }, { "docid": "15000726", "title": "", "text": "The School District diagnosed Brock has having a “mild” disability. The Level I hearing officer described Brock’s learning disability as “moderate,” and the Level II hearing officer found that the Parents had not shown that Brock “is more than mildly or moderately handicapped.” On February 23, 1994, the School District proposed the IEP-1 to, the Parents. Shortly thereafter, because Brock was failing or obtaining barely passing grades in most of his courses, the Parents enrolled him at Brehm Preparatory School (“Brehm”), an Illinois-approved residential school for public school placements that educates students who are classified as learning disabled and attention deficit disordered. The Parents then requested a Level I due process hearing to challenge the IEP-1 as failing to provide Brock with a FAPE program under the IDEA. After a three-day hearing, the Level I hearing officer found that the IEP-1 did not provide a FAPE to Brock, citing the standard set forth in Board of Education v. Rowley, 458 U.S. 176, 102 S.Ct. 3034, 73 L.Ed.2d 690. The hearing officer stated that: B[rock] did learn arid receive some educational benefit in his school district. However, he did so, not because of IEPs that were reasonably calculated to confer benefit, but in spite of IEPs that conferred virtually none. The fact that B[rock] is bright enough to gain some learning in spite of flawed evaluation and placement procedures and inadequate IEPs does not mean he received a FAPE. Decision of Level I Hearing Officer at 16 (August 4,1994). Although she believed that Brehm was an appropriate school for Brock, the hearing officer determined that Brehm was not the LRE for him, finding “it hard to explain how a moderately impaired learning disabled student could not be provided with an appropriate education in his home high school.” Id. at 17. Therefore, she (i) directed the School District to develop an IEP providing individualized learning disabilities resource services in the School District for Brock, and (ii) specified certain other actions that the School District must take relating to Brock’s education in the School District, e.g., in-service training of all of Brock’s teachers" }, { "docid": "5425273", "title": "", "text": "three things will happen. First, the parents can enroll their child in public school and the school is required to provide for the services outlined in the IEP. See 34 C.F.R. § 300.342 (outlining when IEPs must be in effect). Second, the parents can acknowledge that the IEP is sufficiently adequate to provide a FAPE but decide that their child’s educational needs are better met by voluntarily enrolling their child in a private school or program. If the parents elect this option, the School Board is not required to reimburse the parents for any cost associated with the child’s voluntary enrollment in private school. See 20 U.S.C.. § 1412(a)(10)(C)(i); 34 C.F.R. § 300.454(a)(1). Third, the parents can notify the school that they are rejecting the IEP and then challenge the IEP via a due process hearing. See 20 U.S.C. §§ 1412(a)(6)(A) & 1415(a)-(o); 34 C.F.R. § 300.403(b). Should the parents successfully challenge the IEP and if it is determined that the placement in private school was proper, “a court or a hearing officer may require [the School Board] to reimburse the parents for the cost of that enrollment....” 20 U.S.C. § 1412(a)(10)(C)(ii); see 34 C.F.R. 300.403(c) (“[A] court or a hearing officer may require the agency to reimburse the parents for the cost of that [private school] enrollment if ... the agency had not made FAPE available to the child in a timely manner prior to that enrollment and ... the private placement is appropriate.”). We now discuss the ALJ’s and district court’s roles under the IDEA. B. The ALJ Should parents elect to challenge an IEP, they are entitled to a due process hearing before an ALJ. See 20 U.S.C. §§ 1412(a)(6)(A) & 1415(a)-(o); 34 C.F.R. § 300.403(b). The Supreme Court has established a two-part test to determine whether a student has been denied a FAPE. Rowley, 458 U.S. at 206-07, 102 S.Ct. at 3051. Under the Rowley test, the ALJ must first determine whether the School Board “complied with the procedures set forth in the [IDEA].” Id. at 206; 102 S.Ct. at 3051. If the School Board complied" }, { "docid": "20715190", "title": "", "text": "an appropriate IEP and provide an appropriate placement, ...” and “failing] to develop an appropriate IEP on February 11, 2013” and “failpng] to provide-an appropriate special education placement for SY 2013/14.” (Motion Exh.l [Administrative Due Process Complaint Notice] at 3.) Plaintiff DeLa Cruz sought: 1) funding of an independent speech/language evaluation and independent functional behavioral assessment; 2) placement at and funding for the student at a non-public school such as Accotink Academy or another school identified by the parent. (Exh. 1 at 3.) At the time the Due Process Complaint was filed, 1.D. was not attending any school. (Motion, Exh. 1 at 1.) At the beginning of SY 2013-2014, the parent was unaware that the District had assigned the student to School B and instead sent I.D. to a private full-time special education school (“School C”) with the intent to secure funding from the District. (HOD at 2.) The student’s behavior made him ineligible to continue at School C and although the parent contacted three other private therapeutic day schools about admission, the student was rejected by all three. (Id.) The Hearing Officer noted that “[a]fter the due process complaint was filed [on August 30, 2013] and subsequent to the. first pre-hearing conference being held [,]” [on September 24, 2013] the student was enrolled at School B, but he was suspended shortly thereafter. (HOD at 3.) The Due Process hearing was held on October 31, 2013. “By the date of the due process hearing [,] the parties had not yet convened an IEP meeting to review the student’s recent [psychological] evaluation and review the student’s IEP and school placement.” (HOD at 3.) On November 17, 2013, the Hearing Officer issued his HOD finding that Petitioner sustained her burden of proof on the issue of whether DCPS denied the student a FAPE by failing to provide an appropriate placement/location of services for SY 2013-14 (HOD at 8). The Hearing Officer further found that Plaintiff “presented insufficient proof that the student’s February 11, 2013 IEP was not based on current evaluations, had an inappropriate disability classification or had inappropriate goals.” (HOD at" }, { "docid": "20530341", "title": "", "text": "MEMORANDUM OPINION BERYL A. HOWELL, United States District Judge Pending before the Court is the defendants’, Martha Oliver and Jeffrey Crater, Motion for Preliminary Injunction, ECF No. 26, seeking to invoke the “stay-put” provision of the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1415(j), to require the defendant District of Columbia to fund their child’s education at a private school for the 2013-2014 school year. Following a hearing on this motion held November 13, 2013, for the reasons set forth below, the motion is granted. I. BACKGROUND The defendants’ daughter, K.C., is a child with special needs who resides in the District of Columbia but has never attended District of Columbia public schools. Admin. Record (“AR”) (“Hearing Officer Determination”) at 540, ECF No. 14-2. On October 28, 2011, the defendants requested that the plaintiff “begin the process of evaluating the Student, determining her eligibility for special education and related services, and providing an offer of [Free Appropriate Public Education (“FAPE”) ].” Id. The plaintiff subsequently determined the child was eligible for special education and related services under the IDEA, but “refused to develop an individualized education (“IEP”) for the Student,” based on the plaintiffs policy that “students are not eligible for an IEP unless they are enrolled and attending a DCPS Public School.” Id. at 542. In the absence of an IEP, the defendants timely informed the plaintiff “that they intended to maintain placement for the Student at Private School for the 2012-13 school year and requested public funding for that placement.” Id. The private school, which the child is currently attending, the Lab School of Washington, “provides full-time special education to students with disabilities” and “is approved by the Office of the State Superintendent of Education (“OSSE”) to provide special education services in the District of Columbia.” Id. The defendants filed an administrative due process complaint on September 11, 2012, alleging, inter alia, that the plaintiff denied the student a FAPE by refusing to propose an IEP, and seeking funding for the child at her private school for the 2012-2013 school year. Id. at 536, 539. Following" }, { "docid": "14920745", "title": "", "text": "HANSEN, Circuit Judge. Robert E. Marler appeals the district court’s grant of summary judgment in favor of the defendants in this 42 U.S.C. § 1983 action. Marler filed this lawsuit against the Missouri State Board of Optometry and several of its members in both their individual and official capacities, alleging that they violated his procedural and substantive due process rights guaranteed under the Fourteenth Amendment. The district court determined that the Board’s conduct did not violate Mar-ler’s constitutional rights. We affirm. I. Marler’s claims arise out of a series of disciplinary actions taken by the Board against his license to practice optometry in the state of Missouri. At some point prior to June 4, 1987, the Board filed a complaint with the Missouri Administrative Hearing Commission (AHC), alleging that Marler had engaged in conduct that warranted disciplinary action against him. The Board filed this complaint with the AHC in compliance with section 336.110 of the Missouri Revised Statutes, a provision governing the operation of the State Board of Optometry. On June 4, 1987, after a full trial-type hearing, the AHC determined that Marler was subject to discipline on several of the counts in the Board’s complaint. On August 6, 1987, pursuant to the AHC finding, the Board revoked Marler’s license to practice optometry. Both the Board and Marler appealed the June 4 AHC determination to the Missouri Circuit Court of Cole County, as provided for under Mis souri law. See Mo.Rev.Stat. § 621.145 (1988). While these appeals were pending, in January of 1990, Marler asked the Board to reinstate his license to practice optometry. The Board denied Marler’s request, and on June 18, 1991, Marler appealed the Board’s denial to the AHC, alleging that the Board wrongfully refused to reinstate his license. Approximately one month later, on July 31, 1991, Marler voluntarily entered into a settlement agreement with the Board in which he agreed to dismiss both his recent appeal to the AHC and his earlier appeal to the Missouri Circuit Court of Cole County. In exchange, the Board agreed to dismiss its earlier appeal to the Missouri Circuit Court" }, { "docid": "7016966", "title": "", "text": "for a private school placement may be reduced or denied if parents did not provide notice, either at the most recent IEP meeting prior to removal, or in writing 10 business days prior to removal of the child from the public school, “that they were rejecting the placement proposed by the public agency to provide a [FAPE] to their child, including stating their concerns and their intent to enroll their child in a private school at public expense.” 20 U.S.C. § 1412(a)(10)(C)(iii)(I)(aa) (effective June 4, 1997). The administrative decisions in this case denied reimbursement in reliance on Wise and Hines, while the district court found plaintiffs had not complied with § 1412(a)(10)(C)(iii). The record is clear that at the conclusion of the May 1999 IEP team meeting, plaintiffs signed the IEP indicating their agreement with the decision to promote Travis to fifth grade and place him in the resource room for part of the day. Plaintiffs admitted during the due process hearing that they did not inform the IEP team at the May 1999 meeting either that they rejected the placement, or that they intended to enroll Travis in a private school. Plaintiffs argue that the July 23, 1999 letter requesting a due process hearing constituted written notice that satisfied the statute because Travis was not officially removed until more than 10 days later. The evidence showed, however, that plaintiffs arranged to enroll Travis at MCA before requesting the due process hearing or advising defendant of its specific objections and intent to remove their child from public school. Not only did the letter demonstrate that plaintiffs were removing Travis from the public school, but their subsequent rejection of the offer to either have another meeting or engage in mediation through the Department of Education confirmed it. We are not persuaded by the assertion that Travis was not removed from the public school until plaintiffs sent a letter to the principal in late August 1999, stating that Travis would not be attending Heritage Elementary. We are satisfied that the district court did not err in finding that plaintiffs failed to provide" }, { "docid": "2084454", "title": "", "text": "27. . We have previously recognized that \"parents of a disabled student need not seek out the perfect private placement in order to satisfy IDEA.” Mary T., 575 F.3d at 242 (quoting Ridgewood Bd. of Educ. v. N.E., 172 F.3d 238, 249 n. 8 (3d Cir.1999)). A private placement may, for example, be “appropriate” even if the private school fails “to provide an IEP or meet state educational standards.” Id. at 242 (citing Florence, 510 U.S. at 14-15, 114 S.Ct. 361). But if a school district would not have been required to provide the child with residential treatment before the child was withdrawn from public school, it does not become financially responsible for that placement when parents make the unilateral decision to enroll their child at a residential facility. This is true even when the school district may have failed in some other respect to provide the child with a FAPE. . Munir contends that the School District should have identified O.M. as disabled “as early as 2005, and no later than September of 2008” because of his hospitalizations. Munir Br. at 34. But Munir did not present any evidence that O.M.'s condition adversely affected his educational progress during that time. Indeed, as the Hearing Officer noted, Munir testified that O.M. had no problem with attendance and did not express any concern about attending school during that period. Munir also argues that that the School District had an obligation to evaluate O.M. and develop an IEP at some point after September 2008, when he requested an evaluation. . Similarly, in Independent School District No. 284 v. A.C., 258 F.3d 769 (8th Cir.2001), the Eighth Circuit found that residential treatment was warranted because it was necessary to directly address the child's educational problems. There, the child suffered from emotional and behavioral disorders that manifested themselves in \"classroom disruption, profanity, insubordination, and truancy.” Id. at 771. Evaluations of the student suggested that these disorders were interfering with her academic progress and that she needed a highly structured program in order to benefit from educational instruction. See id. at 772. Because the child’s" } ]

[ { "docid": "2452554", "title": "", "text": "cert. denied sub nom., Zero v. United States, 459 U.S. 991, 103 S.Ct. 347, 74 L.Ed.2d 387 (1982); United States v. Cadillac Overall Supply Co., 568 F.2d 1078, 1082 (5th Cir.), cert. denied, 437 U.S. 903, 98 S.Ct. 3088, 57 L.Ed.2d 1133 (1978). Questions of law, including the lower court’s interpretation of a statute, are re viewed de novo. United States v. M.I.M., 932 F.2d 1016, 1019 (1st Cir.1991). An information should be “a plain, concise and definite written statement of the essential facts constituting the offense charged.” Fed.R.Crim.P. 7(c)(1). An information is sufficient if it “first, contains the elements of the offense charged and fairly informs a 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); accord Russell v. United States, 369 U.S. 749, 763-64, 82 S.Ct. 1038, 1046-47, 8 L.Ed.2d 240 (1962); United States v. Penagaricano-Soler, 911 F.2d 833, 839 (1st Cir.1990). An information is sufficient when allegations are made in the language of the statute as long as the core facts of the criminality charged are also included. Russell 369 U.S. at 764, 82 S.Ct. at 1047; Penagaricano-Soler, 911 F.2d at 839-40; United States v. Allard, 864 F.2d 248, 250 (1st Cir.1989) (“The test for sufficiency, therefore is not whether, in hindsight, the indictment or information could have been more complete, ... but rather whether it fairly identifies and describes the offense.” (citations omitted)). Therefore, we examine the Information as a whole to determine whether it sufficiently charges the offense proscribed by the conspiracy statute. II. The Information To begin, we summarize the key allegations of the Information. The government’s allegations concerning the defendants’ conspiracy to defraud the United States focus on the MBE-programs of several federal agencies, the U.S. Department of Transportation (DOT), the Environmental Protection Agency (EPA), and the General Services Administration (GSA). These federal agencies intended the MBE programs to “support[] the fullest possible participation of firms owned and" } ]

[ { "docid": "16040345", "title": "", "text": "MEMORANDUM DECISION AND ORDER GRANTING DEFENDANT’S MOTION TO DISMISS FOR LACK OF FEDERAL JURISDICTION AND DISMISSING INDICTMENT AGAINST DEFENDANT JERONI-MO-BAUTISTA STEWART, District Judge. This matter is before the Court on Defendant Virgilio Jeronimo-Bautista’s Motion to Dismiss for Lack of Federal Jurisdiction, filed March 10, 2004. A hearing was held thereon on April 21, 2004. The Court, having read the pleadings and the file, having heard arguments of counsel, being otherwise fully advised, and with due deference to Congressional authority, will hereby GRANT Defendant’s Motion. I. BACKGROUND On February 11, 2004, Defendant was charged with a single count of Sexual Exploitation of Children, in violation of 18 U.S.C. § 2251(a), and 18 U.S.C. § 2 — Aiding and Abetting. On February 18, 2004, Defendant entered a plea of not guilty to the charge. Count I is the only count pending against Defendant Jeronimo-Bautista, and he is the only Defendant alleging lack of federal jurisdiction in this case. As such, the Court will hereinafter refer to Mr. Jeronimo-Bautista simply as “Defendant.” II. DISCUSSION A. Standard of Review. Fed.R.Crim.P. 12(b) provides for a pre-trial challenge to a defect in an indictment. Specifically with regard to whether the Court has jurisdiction, Rule 12(b)(3)(B) states that “at any time while the case is pending, the court may hear a claim that the indictment or information fails to invoke the court’s jurisdiction ...” “An indictment should be tested solely on the basis of the allegations made on its face, and such allegations are to be taken as true.” United States v. Hall, 20 F.3d 1084, 1087 (10th Cir.1994), citing United States v. Sampson, 371 U.S. 75, 78-79, 83 S.Ct. 173, 9 L.Ed.2d 136 (1962). For purposes of considering this Motion to Dismiss, the Court makes all factual inferences in favor of the government and assumes that the government could prove the facts alleged against Defendant at a trial held herein. In other words, the Court will assume that the government can prove the factual basis for its criminal allegations and will examine the legal sufficiency of the alleged federal jurisdiction as contained in the Indictment. B." }, { "docid": "3860665", "title": "", "text": "objection, or request which is capable of determination without trial of the general issue may be raised before trial by motion.” In its disposition of a Rule 12(b) motion, the court is allowed to consider factual issues. In this respect, Rule 12(e) provides that “[wjhere factual issues are involved in determining a motion, the court shall state its essential findings on the record.” The government contends, however, that the trial court cannot make findings of fact on the “general issue” of the sufficiency of Count V. It is claimed that the procedure utilized by the trial court in making findings of fact in connection with the motion to dismiss is at odds with the standard for reviewing the sufficiency of an indictment. An indictment is deemed constitutionally sufficient if it (1) contains the essential elements of the offense intended to be charged, (2) sufficiently apprises the accused of what he must be prepared to defend against, and (3) enables the accused to plead an acquittal or conviction under the indictment as a bar to any subsequent prosecution for the same offense. Russell v. United States, 369 U.S. 749, 763-64, 82 S.Ct. 1038, 1047, 8 L.Ed.2d 240 (1962); United States v. Walker, 947 F.2d 1439, 1441 (10th Cir.1991). Generally, the strength or weakness of the government’s case, or the sufficiency of the government’s evidence to support a charge, may not be challenged by a pretrial motion. United States v. King, 581 F.2d 800, 802 (10th Cir.1978). An indictment should be tested solely on the basis of the allegations made on its face, and such allegations are to be taken as true. United States v. Sampson, 371 U.S. 75, 78-79, 83 S.Ct. 173, 174-75, 9 L.Ed.2d 136 (1962). Courts should refrain from considering evidence outside the indictment when testing its legal sufficiency. Notwithstanding these general principles, this circuit has upheld a pretrial dismissal under Rule 12(b) based on the insufficiency of the evidence where the underlying facts were essentially undisputed and the government failed to object to the district court’s resort to evidence beyond the four corners of the indictment. In United" }, { "docid": "16782031", "title": "", "text": "their moving papers, the Defendants set forth a statement of material facts for which they contend no genuine issue exists. They assert that: (i) Defendant China Star, Inc., d/b/a China Wok (“China Wok”) is a restaurant; (ü) China Wok’s “total gross proceeds” is the revenue that the restaurant’s sales to its customers of food and beverages generated in the form of “cash, check and credit card sales;” and (iii) the sole source of the funds that are the subject of Counts 24 through 69 of the Indictment is the “cash, credit, and credit card sales” from the restaurant’s sales. Brief in Support of Defendants’ Motion to Dismiss Counts 24 Through 69 of the Indictment (Alleging Violations of 18 U.S.C. §§ 1956(a)(1)(A)®, 1956(a)(1)(B)®, And 1957), at 1, filed November 12, 2004 (Doc. 55). The Defendants move the Court to dismiss Counts 24 through 69 of the Indictment — the money laundering counts. LAW ON MOTIONS TO DISMISS Rule 12(b)(2) of the Federal Rules • of Criminal Procedure allows a party to “raise by pretrial motion any defense, objection, or request that the court can determine without a trial of the general issue.” Fed.R.Crim.P. 12(b)(2). “Where a defendant challenges the sufficiency of an indictment for failure to state an offense, a court generally is bound by the factual allegations contained within the four corners of the indictment.” United States v. Welch, 327 F.3d 1081, 1090 (10th Cir.2003). “Courts should refrain from considering evidence outside the indictment when testing its legal sufficiency.” United States v. Hall, 20 F.3d 1084, 1087 (10th Cir.1994). The United States Court of Appeals for the Tenth Circuit has upheld a district court’s dismissal of charges at the pretrial stage based on evidence beyond the four corners of the indictment. See United States v. Brown, 925 F.2d 1301, 1304 (10th Cir.1991); United States v. Wood, 6 F.3d 692, 695 (10th Cir.1993). The Tenth Circuit explained these cases in United States v. Hall, stating: [W]e read Brown and Wood as authority which allows a district court to dismiss charges at the pretrial stage under the limited circumstances where the operative" }, { "docid": "9996056", "title": "", "text": "the argument pertains to the district court’s jurisdiction, we deem it appropriate to address it. United States v. Angelo, 88 F.3d 856, 860 n. 2 (10th Cir.1996); United States v. Bustillos, 31 F.3d 931, 933 (10th Cir.1994). . In his brief, Mr. Brown sought to belie the indictment’s allegations of the location of the crimes by relying on affidavits and evidence extrinsic to the indictment. This is something he may not do. Generally, an indictment is to be tested \"solely on the basis of the allegations made on its face, and such allegations are to be taken as true.\" United States v. Hall, 20 F.3d 1084, 1087 (10th Cir.1994); see also United States v. Caicedo, 47 F.3d 370, 371 (9th Cir.1995); United States v. Cadillac Overall Supply Co., 568 F.2d 1078, 1082 (5th Cir.1978). The only recognized exception to this rule — where the extrinsic facts are undisputed and neither party objects, Hall, 20 F.3d at 1088 — is inapplicable. At oral argument, counsel then sought to expand this appeal by arguing the superseding indictment on its face was not \"specific enough with respect to the conduct that occurred in the United States.” This challenge to the precision of the superseding indictment, which was neither raised at the trial court nor (more importantly) briefed on appeal, comes too late to merit our attention. Gross v. Burggraf Constr. Co., 53 F.3d 1531, 1547 (10th Cir.1995); Durham v. Xerox Corp., 18 F.3d 836, 841 n. 4 (10th Cir.1994). We further note the issue was only mentioned in passing at oral argument and no effort was made to advance any reasoned argument on the matter. . Although the district court did not expressly state that Mr. Kuhlen's activities in Germany were not relevant conduct under section 1B1.3, we assume the district court performed the proper review because there is no evidence to suggest the contrary. Green v. Branson, 108 F.3d 1296, 1305 (10th Cir.1997)." }, { "docid": "16040346", "title": "", "text": "Fed.R.Crim.P. 12(b) provides for a pre-trial challenge to a defect in an indictment. Specifically with regard to whether the Court has jurisdiction, Rule 12(b)(3)(B) states that “at any time while the case is pending, the court may hear a claim that the indictment or information fails to invoke the court’s jurisdiction ...” “An indictment should be tested solely on the basis of the allegations made on its face, and such allegations are to be taken as true.” United States v. Hall, 20 F.3d 1084, 1087 (10th Cir.1994), citing United States v. Sampson, 371 U.S. 75, 78-79, 83 S.Ct. 173, 9 L.Ed.2d 136 (1962). For purposes of considering this Motion to Dismiss, the Court makes all factual inferences in favor of the government and assumes that the government could prove the facts alleged against Defendant at a trial held herein. In other words, the Court will assume that the government can prove the factual basis for its criminal allegations and will examine the legal sufficiency of the alleged federal jurisdiction as contained in the Indictment. B. Findings of Fact for Purposes of this Motion to Dismiss. Fed.R.Crim.P. 12(d) requires that, “[w]hen factual issues are involved in deciding a motion, the court must state its essential findings on the record.” See Id. The Court makes the following essential findings of fact, all inferences from which are made in favor of the government, for the purposes of this Motion to Dismiss for Lack of Federal Jurisdiction. The following facts are not disputed by Defendant, for purposes of this Motion only. On or about January 29, 2004, a Salt Lake County Sheriffs Department Deputy responded to a call from a one-hour photo laboratory in Salt Lake County — which is located within the Central Division of the District of Utah — to check on certain suspicious photographs that had been dropped off to be developed. The manag er of the photo lab informed the Deputy that a Hispanic male had brought in a roll of analog film to be developed earlier that evening. During the development process, an employee noticed that the photos appeared" }, { "docid": "8517131", "title": "", "text": "appeal. 2. Merits of the Dismissal We review the sufficiency of an indictment de novo, United States v. Avery, 295 F.3d 1158, 1173-74 (10th Cir.2002), but we review the district court’s dismissal of an indictment for an abuse of discretion. United States v. Wood, 6 F.3d 692, 694 (10th Cir.1993). “An indictment is sufficient if it sets forth the elements of the offense charged, puts the defendant on fair notice of the charges against which he must defend, and enables the defendant to assert a double jeopardy defense.” United States v. Dashney, 117 F.3d 1197, 1205 (10th Cir.1997). Challenging an indictment is not a means of testing the strength or weakness of the government’s case, or the sufficiency of the government’s evidence. United States v. Hall, 20 F.3d 1084, 1087 (10th Cir.1994). Rather, “[a]n indictment should be tested solely on the basis of the allegations made on its face, and such allegations are to be taken as true.” Id. See also United States v. Sampson, 371 U.S. 75, 78-79, 83 S.Ct. 173, 9 L.Ed.2d 136 (1962) (finding it irrelevant that charges had not been established by evidence, because at a motion to dismiss “the indictment must be tested by its sufficiency to charge an offense”). Courts should therefore avoid considering evidence outside the indictment when testing the indictment’s legal sufficiency. Hall, 20 F.3d at 1087. Count Two of the Superseding Indictment charged Mr. Todd with unlawfully and knowingly after having been previously convicted of a crime punishable by imprisonment for a term exceeding one year, possessing] one 9mm Beretta handgun, which was in and affected interstate commerce, as this firearm had previously crossed state lines to enter the State of Oklahoma. All in violation of Title 18, United States Code, Section 922(g)(1); the penalty for which is found in Title 18, United States Code, Section 924(a)(2). Superseding Indictment 3. The statute Mr. Todd was charged with violating provides: It shall be unlawful for any person ... (2) who is a fugitive from justice ... to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any" }, { "docid": "21506726", "title": "", "text": "guilt, that they were entitled to a new trial because of evidence they received afterward, and that their sentences violated the Constitution. We reject all these arguments except as to the sufficiency of the evidence to establish the elements of wire fraud. II. SUFFICIENCY OF THE INDICTMENT “ ‘An indictment is sufficient if it sets forth the elements of the offense charged, puts the defendant on fair notice of the charges against which he must defend, and enables the defendant to assert a double jeopardy defense.’ ” United States v. Chisum, 502 F.3d 1237, 1244 (10th Cir.2007) (quoting United States v. Dashney, 117 F.3d 1197, 1205 (10th Cir.1997)). “ ‘[I]t is generally sufficient that an indictment set forth an offense in the words of the statute itself, as long as those words themselves fully, directly, and expressly, without any uncertainty or ambiguity, set forth all the elements necessary to constitute the offence intended to be punished.’ ” United States v. Hathaway, 318 F.3d 1001, 1009 (10th Cir.2003) (quoting Hamling v. United States, 418 U.S. 87, 117, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974)). Therefore, where the indictment quotes the language of a statute and includes the date, place, and nature of illegal activity, it “need not go further and allege ‘in detail the factual proof that will be relied upon to support the charges.’ ” United States v. Dunn, 841 F.2d 1026, 1029 (10th Cir.1988) (quoting United States v. Crippen, 579 F.2d 340, 342 (5th Cir.1978)). We review the sufficiency of an indictment de novo, United States v. Todd, 446 F.3d 1062, 1067 (10th Cir.2006), but a challenge to the indictment is not a vehicle for testing the government’s evidence. “Rather, ‘[a]n indictment should be tested solely on the basis of the allegations made on its face, and such allegations are to be taken as true.’ ” Id. (quoting United States v. Hall, 20 F.3d 1084, 1087 (10th Cir.1994)). A. Count 1: Health Care Fraud Count 1 of the indictment charged Appellants with violation of 18 U.S.C. § 669, which outlaws embezzlement of “any of the moneys ... or other" }, { "docid": "9996055", "title": "", "text": "persons in Germany; he was not otherwise involved with or in control of the sales practices of the German operations; and he was kept in the dark by Mr. Kuhlen with respect to many activities in Germany. Although the government proffers affidavits to contradict the district court’s findings, we conclude that at most those affidavits presented the district court with an alternate, permissible account of events. The district court found one version more credible than the other, as it is within its power to do. IV The judgment of the district court is AFFIRMED. The district court had subject matter jurisdiction over Mr. Brown’s offenses and applied the Sentencing Guidelines within the bounds of its discretion. . Only the counts to which Mr. Brown pleaded guilty are presently before the Court. The dismissal of the remaining counts rendered them a moot issue on Mr. Brown’s appeal. United States v. Rodriguez-Aguirre, 73 F.3d 1023, 1025 (10th Cir.1996). . Mr. Brown challenges the reach of the wire fraud statute for the first time on appeal. Nevertheless, because the argument pertains to the district court’s jurisdiction, we deem it appropriate to address it. United States v. Angelo, 88 F.3d 856, 860 n. 2 (10th Cir.1996); United States v. Bustillos, 31 F.3d 931, 933 (10th Cir.1994). . In his brief, Mr. Brown sought to belie the indictment’s allegations of the location of the crimes by relying on affidavits and evidence extrinsic to the indictment. This is something he may not do. Generally, an indictment is to be tested \"solely on the basis of the allegations made on its face, and such allegations are to be taken as true.\" United States v. Hall, 20 F.3d 1084, 1087 (10th Cir.1994); see also United States v. Caicedo, 47 F.3d 370, 371 (9th Cir.1995); United States v. Cadillac Overall Supply Co., 568 F.2d 1078, 1082 (5th Cir.1978). The only recognized exception to this rule — where the extrinsic facts are undisputed and neither party objects, Hall, 20 F.3d at 1088 — is inapplicable. At oral argument, counsel then sought to expand this appeal by arguing the superseding indictment" }, { "docid": "3860666", "title": "", "text": "subsequent prosecution for the same offense. Russell v. United States, 369 U.S. 749, 763-64, 82 S.Ct. 1038, 1047, 8 L.Ed.2d 240 (1962); United States v. Walker, 947 F.2d 1439, 1441 (10th Cir.1991). Generally, the strength or weakness of the government’s case, or the sufficiency of the government’s evidence to support a charge, may not be challenged by a pretrial motion. United States v. King, 581 F.2d 800, 802 (10th Cir.1978). An indictment should be tested solely on the basis of the allegations made on its face, and such allegations are to be taken as true. United States v. Sampson, 371 U.S. 75, 78-79, 83 S.Ct. 173, 174-75, 9 L.Ed.2d 136 (1962). Courts should refrain from considering evidence outside the indictment when testing its legal sufficiency. Notwithstanding these general principles, this circuit has upheld a pretrial dismissal under Rule 12(b) based on the insufficiency of the evidence where the underlying facts were essentially undisputed and the government failed to object to the district court’s resort to evidence beyond the four corners of the indictment. In United States v. Brown, 925 F.2d 1301 (10th Cir.1991), we affirmed the district court’s pretrial dismissal of three counts of violations of the National Stolen Property Act, 18 U.S.C. §§ 2314 and 2315, on the basis that the allegedly stolen property, a computer program in source code form, was not covered under the statutory protection for goods, wares or merchandise'. In dismissing the count, the district court did not rely solely on the allegations on the face of the indictment, but rather, it conducted an evidentiary hearing during which both the government and the defendant presented witnesses. The government also introduced one exhibit at the hearing. On appeal, we found no procedural error in the district court’s handling of the motion to dismiss and we affirmed the dismissal. We determined that in circumstances like those before the district court, “it is permissible and may be desirable where the facts are essentially undisputed, for the district court to examine the factual predicate for an indictment to determine whether the elements of the criminal charge can be shown" }, { "docid": "17050048", "title": "", "text": "the boxes with a metal tool. In 1994, seven years after the theft of the coins was discovered, Meeks and Hogue were indicted under 18 U.S.C. § 656. At the time of the offenses, Section 656 provided that “[wjhoever, being an officer, director, agent or employee of, or connected in any capacity with” certain banks or institutions, who embezzles, abstracts, purloins, or willfully misapplies certain assets belonging or entrusted to the banks or institutions, shall be fined or imprisoned, or both. 18 U.S.C. § 656 (1976). In the indictment, the appellants were charged with violations of 18 U.S.C. § 656 while acting as “employees of Underwood Safe and Vault Company, a contractor connected with First Republic Bank.” The appellants moved to dismiss the indictment on the ground that it failed to state an offense because it did not allege facts sufficient to establish that appellants were “connected in any capacity with” the Bank, as required by 18 U.S.C. § 656. Ordinarily, a motion to dismiss an indictment for failure to state an offense challenges the sufficiency of the indictment itself, requiring the court to take the allegations of the indictment as true and to determine whether an offense has been stated. United States v. Cadillac Overall Supply Co., 568 F.2d 1078, 1082 (5th Cir.), cert. denied, 437 U.S. 903, 98 S.Ct. 3088, 57 L.Ed.2d 1133 (1978). If the district court dismisses an indictment because it does not allege an offense, on review the indictment is to be tested not by whether its allegations are in fact true but by the indictment’s “sufficiency to charge an offense.” United States v. Mann, 517 F.2d 259, 266 (5th Cir.1975) (quoting United Stales v. Sampson, 371 U.S. 75, 78-79, 83 S.Ct. 173, 174-75, 9 L.Ed.2d 136 (1962)), cert. denied, 423 U.S. 1087, 96 S.Ct. 878, 47 L.Ed.2d 97 (1976). In Meeks I, however, neither the district court nor this court of appeals based its decision strictly upon the facts recited in the indictment. Because the Government and the defendants entered into a joint stipulation of facts for purposes of the motion to dismiss the" }, { "docid": "16621672", "title": "", "text": "that they could not be segregated and stricken without improperly amending the indictment in violation of the Fifth Amendment’s grand jury guarantee. III. On appeal, the Government challenges all adverse aspects of the district court’s two orders dismissing the indictment. Defendants, of course, defend those same aspects of the orders. Recognizing that we may affirm on any ground supported by the record, Defendants offer additional arguments which they presented to the district court. See United States v. Lott, 310 F.3d 1231, 1242 n. 7 (10th Cir.2002). Most notably, Defendants argue they are entitled to dismissal of the Travel Act counts as a matter of law because under Swiss law, an IOC member is not an “agent or fiduciary” of the IOC as required to support a charge under Utah Code Ann. § 76-6-508(l)(a). Defendants further argue the conspiracy, mail, and wire fraud counts, viewed apart from the Travel Act counts, fail to state an offense. We review the sufficiency of an indictment and issues of statutory inter pretation involved therein de novo. See United States v. Giles, 213 F.3d 1247, 1248-49 (10th Cir.2000).- Where a defendant challenges the sufficiency of an indictment for failure to state an offense, a court generally is bound by the factual allegations contained within the four corners of the indictment. See United States v. Hall, 20 F.3d 1084, 1087 (10th Cir.1994). “An indictment should be tested solely on the basis of the allegations made on its face, and such allegations are to be taken as true. Courts should refrain from considering evidence outside the indictment when testing its sufficiency.” Id. (citation omitted). An indictment is sufficient if it sets forth the elements of the offense charged, puts the defendant on fair notice of the charges against which he must defend, and enables the defendant to assert a double jeopardy defense. See United States v. Avery, 295 F.3d 1158, 1174 (10th Cir.2002). We begin our review of the indictment with an analysis of its Travel Act counts. A. Concerned with state and local governments’ inability to cope with the interstate nature of complex criminal enterprises, Congress" }, { "docid": "16621673", "title": "", "text": "v. Giles, 213 F.3d 1247, 1248-49 (10th Cir.2000).- Where a defendant challenges the sufficiency of an indictment for failure to state an offense, a court generally is bound by the factual allegations contained within the four corners of the indictment. See United States v. Hall, 20 F.3d 1084, 1087 (10th Cir.1994). “An indictment should be tested solely on the basis of the allegations made on its face, and such allegations are to be taken as true. Courts should refrain from considering evidence outside the indictment when testing its sufficiency.” Id. (citation omitted). An indictment is sufficient if it sets forth the elements of the offense charged, puts the defendant on fair notice of the charges against which he must defend, and enables the defendant to assert a double jeopardy defense. See United States v. Avery, 295 F.3d 1158, 1174 (10th Cir.2002). We begin our review of the indictment with an analysis of its Travel Act counts. A. Concerned with state and local governments’ inability to cope with the interstate nature of complex criminal enterprises, Congress enacted the Travel Act as part of the Attorney General’s 1961 legislative program directed against “organized crime.” See Perrin v. United States, 444 U.S. 37, 41, 100 S.Ct. 311, 62 L.Ed.2d 199 (1979). The Travel Act “impose[s] criminal sanctions upon the person whose work takes him across State or National boundaries in aid of certain ‘unlawful activities.’ ” H.R.Rep. No. 966, at 4 (1961), reprinted in 1961 U.S.C.C.A.N. 2664, 2666 (letter from Attorney General Robert F. Kennedy to the Speaker of the House of Representatives). The Travel Act is, “in short, an effort to deny individuals who act [with the requisite] criminal purpose access to the channels of commerce.” Erlenbaugh v. United States, 409 U.S. 239, 246, 93 S.Ct. 477, 34 L.Ed.2d 446 (1972). As set forth by the Act’s plain language, the elements necessary to sustain a Travel Act conviction are (1) travel in interstate or foreign commerce or use of the mail or any facility in interstate or foreign commerce, (2) with the intent to promote, manage, establish, carry on, or facilitate the" }, { "docid": "16782032", "title": "", "text": "defense, objection, or request that the court can determine without a trial of the general issue.” Fed.R.Crim.P. 12(b)(2). “Where a defendant challenges the sufficiency of an indictment for failure to state an offense, a court generally is bound by the factual allegations contained within the four corners of the indictment.” United States v. Welch, 327 F.3d 1081, 1090 (10th Cir.2003). “Courts should refrain from considering evidence outside the indictment when testing its legal sufficiency.” United States v. Hall, 20 F.3d 1084, 1087 (10th Cir.1994). The United States Court of Appeals for the Tenth Circuit has upheld a district court’s dismissal of charges at the pretrial stage based on evidence beyond the four corners of the indictment. See United States v. Brown, 925 F.2d 1301, 1304 (10th Cir.1991); United States v. Wood, 6 F.3d 692, 695 (10th Cir.1993). The Tenth Circuit explained these cases in United States v. Hall, stating: [W]e read Brown and Wood as authority which allows a district court to dismiss charges at the pretrial stage under the limited circumstances where the operative facts are undisputed and the government fails to object to the district court’s consideration of those undisputed facts in making the determination regarding a submissible case. Under this scenario, a pretrial dismissal is essentially a determination, that as a matter of law, the government is incapable of proving its case beyond a reasonable doubt. We note, however, that such a scenario is not likely to recur and we caution both the trial courts and counsel that the procedure here employed is indeed the rare exception. United States v. Hall, 20 F.3d at 1088. LAW ON MONEY LAUNDERING A necessary element of 18 U.S.C. § 1956 is that a financial transaction “involves the proceeds of specified unlawful activity.” 18 U.S.C. § 1956(a)(1). Similarly, a violation of 18 U.S.C. § 1957 involves a “monetary transaction in criminally deprived property.” 18 U.S.C. § 1957(a). “[T]he term ‘criminally derived property’ means any property constituting, or derived from, proceeds obtained from a criminal offense.” 18 U.S.C. § 1957(f)(2). ANALYSIS In support of their motion to dismiss, the Defendants assert that" }, { "docid": "17050049", "title": "", "text": "sufficiency of the indictment itself, requiring the court to take the allegations of the indictment as true and to determine whether an offense has been stated. United States v. Cadillac Overall Supply Co., 568 F.2d 1078, 1082 (5th Cir.), cert. denied, 437 U.S. 903, 98 S.Ct. 3088, 57 L.Ed.2d 1133 (1978). If the district court dismisses an indictment because it does not allege an offense, on review the indictment is to be tested not by whether its allegations are in fact true but by the indictment’s “sufficiency to charge an offense.” United States v. Mann, 517 F.2d 259, 266 (5th Cir.1975) (quoting United Stales v. Sampson, 371 U.S. 75, 78-79, 83 S.Ct. 173, 174-75, 9 L.Ed.2d 136 (1962)), cert. denied, 423 U.S. 1087, 96 S.Ct. 878, 47 L.Ed.2d 97 (1976). In Meeks I, however, neither the district court nor this court of appeals based its decision strictly upon the facts recited in the indictment. Because the Government and the defendants entered into a joint stipulation of facts for purposes of the motion to dismiss the indictment, each court considered the allegations of the indictment as expanded by the stipulated facts. The district court dismissed the indictment, concluding that the stipulated facts showed that Meeks and Ho-gue were not “sufficiently ‘connected in any capacity with’ a bank pursuant to § 656 [because Meeks and Hogue did not] exercise some position of control over the bank’s affairs, enjoy a relationship of trust with the bank, or [were] entrusted with bank funds or property.” (Mem. Op. and Order at 7). Upon the Government’s appeal in Meeks I, this court reversed, holding that (1). § 656 does not require that the offender exercise control over the bank’s affairs, occupy a position of trust with the bank, or be entrusted with bank funds or property, in-order to be “connected in any capacity” with a bank under the statute; (2) the words of the statute should be given their common, ordinary meaning; and (3) under the facts alleged in the indictment and the. joint stipulation, it could not be said that no reasonable trier of the" }, { "docid": "23554075", "title": "", "text": "has recently explained when an indictment is sufficient. We stated in United States v. Mann, 517 F.2d 259, 266-67 (5th Cir. 1975), cert. denied, 423 U.S. 1087, 96 S.Ct. 878, 47 L.Ed.2d 97 (1976), An indictment is sufficient if it, first, contains the elements of the offense charged and fairly informs the defendants of the charge against which they must defend, and second, enables the defendants adequately to plead an acquittal or conviction in bar of future prosecutions for the same offense. Russell v. United States, 369 U.S. 749, 763-764, 83 S.Ct. 1038, 1047, 8 L.Ed.2d 240 (1962) and cases cited; United States v. Sanchez, 5 Cir., 1975, 508 F.2d 388, 395. Whether the indictment sufficiently alleges a crime is an issue of law, not of fact. United States v. Miller, 5 Cir., 1974, 491 F.2d 638, 647, cert. denied, 419 U.S. 970, 95 S.Ct. 236, 42 L.Ed.2d 186; see Fed.R. Crim.P. 12(b)(1). On review of an order dismissing an indictment, the indictment is to be tested not by the truth of its allegations but “by its sufficiency to charge an offense,” United States v. Sampson, 371 U.S. 75, 78-79, 83 S.Ct. 173, 175, 9 L.Ed.2d 136 (1962), since the allegations contained in the indictment must be taken as true. United States v. National Dairy Products Corp., 372 U.S. 29, 33 n. 2, 83 S.Ct. 594, 598 n. 2, 9 L.Ed.2d 561 (1963); Boyce Motor Lines v. United States, 342 U.S. 337, 343 n. 16, 72 S.Ct. 329, 332 n. 16, 96 L.Ed. 367 (1952). A defendant may not properly challenge an indictment, sufficient on its face, on the ground that the allegations are not supported by adequate evidence, for an indictment returned by a legally constituted and unbiased grand jury, if valid on its face, is enough to call for trial of the charge on the merits. Costello v. United States, 350 U.S. 359, 363, 76 S.Ct. 406, 409, 100 L.Ed. 397 (1956). The Costello holding has been often reaffirmed. See United States v. Calandra, 414 U.S. 338, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974); United States v. Blue," }, { "docid": "14700385", "title": "", "text": "evidence to be presented at trial.” United States v. Barletta, 644 F.2d 50, 58 (1st Cir.1981). Second, other motions may implicate the general issue, but they present themselves for resolution before trial because they don’t require a trial of the general issue. So, for example, a court may always ask “whether the allegations in the indictment, if true, are sufficient to establish a violation of the charged of-fence” and dismiss the indictment if its allegations fail that standard. United States v. Todd, 446 F.3d 1062, 1068 (10th Cir.2006). Even if this question can be fairly said to implicate the general issue, it doesn’t require a trial because it focuses solely on the facts alleged in the indictment and their legal adequacy. See United States v. Sampson, 371 U.S. 75, 78-80, 83 S.Ct. 173, 9 L.Ed.2d 136 (1962). Of course and likewise, courts may entertain motions that require it to answer only pure questions of law. See, e.g., Covington, 395 U.S. at 60, 89 S.Ct. 1559; Serfass v. United States, 420 U.S. 377, 382, 95 S.Ct. 1055, 43 L.Ed.2d 265 (1975); see also Wright & Leipold, supra, § 191, at 392-93. And, we have held, courts may entertain even motions to dismiss that require resort to facts outside the indictment and bearing on the general issue in the “limited circumstances” where “[1] the operative facts are undisputed and [2] the government fails to object to the district court’s consideration of those undisputed facts,” and [3] the district court can determine from them that, “as a matter of law, the government is incapable of proving its case beyond a reasonable doubt.” United States v. Hall, 20 F.3d 1084, 1088 (10th Cir.1994). We have explained that dismissals under this latter rubric are the “rare exception.” Id.; see also Todd, 446 F.3d at 1068. This is because they are “not made on account of a lack of evidence to support the government’s ease” or, put differently, the government’s refusal to come forward with evidence to support its case in the face of a defendant who has presented his own proof. Todd, 446 F.3d at" }, { "docid": "6216216", "title": "", "text": "MEMORANDUM OPINION AND ORDER BROWNING, District Judge. THIS MATTER comes before the Court on Defendant Jerry A. Tafoya’s motion to dismiss the indictment, filed February 8, 2005. The Court held a four-hour eviden-tiary hearing on Tafoya’s motion to suppress on May 24, 2005, at which counsel made arguments on this motion as well. The primary issue is whether Tafoya is an “unlawful user” of a controlled substance within the meaning of 18 U.S.C. § 922(g)(3). Consistent with the Court’s ruling at the hearing on this motion, and for the reasons given at the time of the hearing, Tafoya’s motion is denied. PROCEDURAL BACKGROUND A federal grand jury indicted Tafoya on a single count of possession of a firearm by an unlawful user of a controlled substance. He has moved to dismiss the indictment, arguing alternatively that he is not among the class of persons to which the statute applies or, if he is, that the statute is unconstitutionally vague. APPLICABLE LAW 1. Motion to Dismiss. Rule 12(b)(2) of the Federal Rules of Criminal Procedure allows a party to “raise by pretrial motion any defense, objection, or request that the court can determine without a trial of the general issue.” Fed.R.Crim.P. 12(b)(2). “Where a defendant challenges the sufficiency of an indictment for failure to state an offense, a court generally is bound by the factual allegations contained within the four corners of the indictment.” United States v. Welch, 327 F.3d 1081, 1090 (10th Cir.2003). “Courts should refrain from considering evidence outside the indictment when testing its legal sufficiency.” United States v. Hall, 20 F.3d 1084, 1087 (10th Cir.1994). The United States Court of Appeals for the Tenth Circuit has upheld a district court’s dismissal of charges at the pretrial stage based on evidence beyond the four corners of the indictment. See United States v. Brown, 925 F.2d 1301, 1304 (10th Cir.1991); United States v. Wood, 6 F.3d 692, 695 (10th Cir.1993). The Tenth Circuit explained these cases in United States v. Hall, stating: [W]e read Brown and Wood as authority which allows a district court to dismiss charges at the pretrial" }, { "docid": "537210", "title": "", "text": "he used pepper spray on the Girlfriend. While it is troubling to the Court that § 922(g)(9) may be used to deprive otherwise law-abiding citizens, who pose no prospective risk of violence, of their Second Amendment rights as a result of a single past transgression, the Court cannot say, as a matter of law, that Defendant poses no prospective risk of violence, and that he is constitutionally entitled to an exception to § 922(g)(9). IV. CONCLUSION It is therefore ORDERED that Defendant’s Motion to Dismiss Indictment (Docket No. 17) is DENIED. . Docket No. 17. . Docket No. 1. . Docket No. 19 at 1. . Docket No. 18. . No evidence or allegations have been presented to the Court to indicate why the Girlfriend feared for her safety. Likewise, there are no allegations that Defendant did anything other than grab the Girlfriend’s arm. . See United States v. Hall, 20 F.3d 1084, 1088 (10th Cir.1994) (holding that facts outside the four corners of the indictment may be considered on a motion to dismiss if the government fails to object to their consideration). . Costello v. United States, 350 U.S. 359, 363, 76 S.Ct. 406, 100 L.Ed. 397 (1956). . Hall, 20 F.3d at 1088. . Id. . United States v. Sampson, 371 U.S. 75, 78-79, 83 S.Ct. 173, 9 L.Ed.2d 136 (1962). See also United States v. Todd, 446 F.3d 1062, 1067 (10th Cir.2006) (\"an indictment should be tested solely on the basis of the allegations made on its face, and such allegations are to be taken as true.”). . Docket No. 18 at 5. . — U.S. —, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008). . Docket No. 18 at 4. . Docket No. 19 at 6. . Heller, 128 S.Ct. at 2821-22. . Id. at 2797-98 (\"[W]e find that [the Second Amendment] guarantee^] the individual right to possess weapons in case of confrontation.”). . Id. at 2798 (\"By the time of the founding, the right to have arms had become fundamental for English Subjects.”). See also 1 Blackstone 136, 139-40 (referencing “the natural right of resistance and" }, { "docid": "8517130", "title": "", "text": "claimed was inadmissible both under Miranda and because it was a statement made during a plea agreement. Counsel argued that the charge should be dismissed because the only evidence supporting it was inadmissible — not that the charge should be dismissed even if Mr. Todd’s statement was admitted. Mr. Todd’s request for dismissal was specifically contingent on the district court suppressing his statement. The district court denied Mr. Todd’s motion to suppress his statement, but nonetheless dismissed the firearm charge because Mr. Todd’s statements, although admissible, were not corroborated. See Suppression Hr’g Tr. 268 (“[T]he prosecution, in addition to the confession or admission, must produce substantial independent evidence of the essential elements of the crime charged which will tend to establish the trustworthiness of the statements made by the accused.”). Thus, the district court acted sua sponte in deciding to dismiss the charge for failure to corroborate Mr. Todd’s admission. Accordingly, even if the government’s objection to dismissal of the count were not sufficient to preserve the issue, the government would still be entitled to appeal. 2. Merits of the Dismissal We review the sufficiency of an indictment de novo, United States v. Avery, 295 F.3d 1158, 1173-74 (10th Cir.2002), but we review the district court’s dismissal of an indictment for an abuse of discretion. United States v. Wood, 6 F.3d 692, 694 (10th Cir.1993). “An indictment is sufficient if it sets forth the elements of the offense charged, puts the defendant on fair notice of the charges against which he must defend, and enables the defendant to assert a double jeopardy defense.” United States v. Dashney, 117 F.3d 1197, 1205 (10th Cir.1997). Challenging an indictment is not a means of testing the strength or weakness of the government’s case, or the sufficiency of the government’s evidence. United States v. Hall, 20 F.3d 1084, 1087 (10th Cir.1994). Rather, “[a]n indictment should be tested solely on the basis of the allegations made on its face, and such allegations are to be taken as true.” Id. See also United States v. Sampson, 371 U.S. 75, 78-79, 83 S.Ct. 173, 9 L.Ed.2d 136" }, { "docid": "6216217", "title": "", "text": "a party to “raise by pretrial motion any defense, objection, or request that the court can determine without a trial of the general issue.” Fed.R.Crim.P. 12(b)(2). “Where a defendant challenges the sufficiency of an indictment for failure to state an offense, a court generally is bound by the factual allegations contained within the four corners of the indictment.” United States v. Welch, 327 F.3d 1081, 1090 (10th Cir.2003). “Courts should refrain from considering evidence outside the indictment when testing its legal sufficiency.” United States v. Hall, 20 F.3d 1084, 1087 (10th Cir.1994). The United States Court of Appeals for the Tenth Circuit has upheld a district court’s dismissal of charges at the pretrial stage based on evidence beyond the four corners of the indictment. See United States v. Brown, 925 F.2d 1301, 1304 (10th Cir.1991); United States v. Wood, 6 F.3d 692, 695 (10th Cir.1993). The Tenth Circuit explained these cases in United States v. Hall, stating: [W]e read Brown and Wood as authority which allows a district court to dismiss charges at the pretrial stage under the limited circumstances where the operative facts are undisputed and the government fails to object to the district court’s consideration of those undisputed facts in making the determination regarding a submissible case. Under this scenario, a pretrial dismissal is essentially a determination, that as a matter of law, the government is incapable of proving its case beyond a reasonable doubt. We note, however, that such a scenario is not likely to recur and we caution both the trial courts and counsel that the procedure here employed is indeed the rare exception. 20 F.3d at 1088. 2. 18 U.S.C. § 922(g)(3). The statute in question reads: It shall be unlawful for any person ... who is an unlawful user of or addicted to any controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)) ... to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate" } ]

[ { "docid": "22559505", "title": "", "text": "Clause. U. S. Const., Art. VI, cl. 2. As long as it is acting within the powers granted it | under the Constitution, Congress may impose its will on the | States. Congress may legislate in areas traditionally regulated by the States. This is an extraordinary power in a federalist system. It is a power that we must assume Congress does not exercise lightly. The present case concerns a state constitutional provision through which the people of Missouri establish a qualification for those who sit as their judges. This provision goes beyond an area traditionally regulated by the States; it is a decision of the most fundamental sort for a sovereign entity. . Through the structure of its government, and the character of those who exercise government authority, a State defines itself as a sovereign. “It is obviously essential to the independence of the States, and to their peace and tranquility, that their power to prescribe the qualifications of their own officers . . . should be exclusive, and free from external interference, except so far as plainly provided by the Constitution of the United States.” Taylor v. Beckham, 178 U. S. 548, 570-571 (1900). See also Boyd v. Nebraska ex rel. Thayer, 143 U. S. 135, 161 (1892) (“Each State has the power to prescribe the qualifications of its officers and the manner in which they shall be chosen”). Congressional interference with this decision of the people of Missouri, defining their constitutional officers, would upset the usual constitutional balance of federal and state powers. For this reason, “it is incumbent upon the federal courts to be certain of Congress’ intent before finding that federal law overrides” this balance. Atascadero, supra, at 243. We explained recently: “[I]f Congress intends to alter the ‘usual constitutional balance between the States and the Federal Government,’ it must make its intention to do so ‘unmistakably clear in the language of the statute.’ Atascadero State Hospital v. Scanlon, 473 U. S. 234, 242 (1985); see also Pennhurst State School and Hospital v. Halderman, 465 U. S. 89, 99 (1984). Atascadero was an Eleventh Amendment case," } ]

[ { "docid": "6476250", "title": "", "text": "was not an employee under Title VII, we do not consider whether she established a prima facie case of either age or sex discrimination. 1. The ADEA The ADEA makes it unlawful for an employer to discharge an employee who is at least 40 years old because of her age. See 29 U.S.C. §§ 623(a), 631(a); Gregory, 501 U.S. at 456, 111 S.Ct. 2395. After Butler’s appeal was argued, the United States Supreme Court held that states cannot be sued under the ADEA because Congress lacked the power under Section 5 of the Fourteenth Amendment to abrogate states’ Eleventh Amendment immunity for claims of age discrimination. See Kimel, 120 S.Ct. at 650. The rule of Kimel must be applied to all cases still open on direct review. See Harper v. Virginia Dep’t of Taxation, 509 U.S. 86, 95-97, 113 S.Ct. 2510, 125 L.Ed.2d 74 (1993) (<cWhen this Court applies a rule of federal law to the parties before it, that rule is the controlling interpretation of federal law and must be given full retroactive effect in all cases still open on direct review.”); Richardson v. New York State Dep’t of Correctional Serv., 180 F.3d 426, 442 (2d Cir.1999). Butler brought her ADEA claim against the NYSDL, an agency of the State of New York. Kimel deprives this Court of subject matter jurisdiction over Butler’s ADEA claim, so we dismiss the appeal of that issue. 2. Title VII The Supreme Court’s holding in Kimel does not address Butler’s ability to sue the NYSDL under Title VII. See Kimel, 120 S.Ct. at 645^16. In dicta, the Court noted that age classifications are “unlike governmental conduct based on race or gender,” because age classifications are not suspect under the Equal Protection Clause. Id. We therefore turn to the merits of Butler’s sex discrimination claim under Title VII. Title VII makes it unlawful for an employer to discriminate against an employee because of her sex. See 42 U.S.C. § 2000e-2(a). Title VII, as amended in 1972, defines an “employee” as an individual employed by any employer, except that the term “employee” shall not include" }, { "docid": "8748034", "title": "", "text": "(1991) (linking clear statement rule with constitutional avoidance canon). The Court in Will derived this “clear statement” rule from the Eleventh Amendment cases requiring an explicit textual intent to abrogate a state’s Eleventh- Amendment immunity, but noted its applicability in a range of contexts in which Congress alters the federal-state balance of power. See Will, 491 U.S. at 65, 109 S.Ct. 2304. In Gregory, the Court applied this “plain statement” principle where Congress’ imposition of liability under the Age Discrimination in Employment Act would “upset the usual constitutional balance” by interfering with the states’ fundamental role in defining the qualifications of their state judges. Id. at 460-61, 111 S.Ct. 2395; see id. at 464-67, 111 S.Ct. 2395 (holding that Congress did not make a sufficiently clear statement in the ADEA that state judges are within the Act’s coverage). It cannot seriously be disputed that if Congress were required to make its intentions “clear and manifest,” Will, 491 U.S. at 65, 109 S.Ct. 2304, in order to impose False Claims Act liability on the states, it has failed to do so. Appellees contend that there is no justification for applying this clear statement rule of Will or Gregory because treating states as defendant persons would not actually alter the constitutional balance of powers between the federal and state governments. Such an alteration occurs, for example, when Congress seeks to remove the states’ sovereign immunity in their own courts, as in Will, 491 U.S. at 67, 109 S.Ct. 2304, or when Congress attempts to interfere with an essential governmental function, as in Gregory, 501 U.S. at 460, 111 S.Ct. 2395. Since this case, arose in federal court and because the fraudulent conduct proscribed cannot be thought an essential governmental function, appellees argue that neither Will nor Gregory apply. We are unpersuaded by various crabbed analyses of the Court’s “clear statement” jurisprudence that we have seen. To characterize the relevant state function at issue, as the Second Circuit did, as fraudulent conduct, see, e.g., Stevens, 162 F.3d at 204 (“The States have no right or authority, traditional or otherwise, to engage in [fraudulent]" }, { "docid": "8748033", "title": "", "text": "are distorting the language of the statute in order to avoid a constitutional question. The more obvious reading is to exclude states from “person.” The more difficult task is to demonstrate that the inclusion of states as defendant persons is a fair reading of the statute. There can be no objection to avoiding a constitutional question that is implicated only by a rather strained reading of the statute. We think it relevant—if not decisive—to observe that the avoidance canon coincides in this case with two additional related canons of construction that impose upon Congress an obligation of specificity. When “Congress intends to alter the ‘usual constitutional balance between the States and the Federal Government,’ ” federal courts insist that Congress “make its intention to do so ‘unmistakably clear in the language of the statute.’ ” Will, 491 U.S. at 65, 109 S.Ct. 2304 (quoting Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 242, 105 S.Ct. 3142, 87 L.Ed.2d 171 (1985)); see also Gregory v. Ashcroft, 501 U.S. 452, 464, 111 S.Ct. 2395, 115 L.Ed.2d 410 (1991) (linking clear statement rule with constitutional avoidance canon). The Court in Will derived this “clear statement” rule from the Eleventh Amendment cases requiring an explicit textual intent to abrogate a state’s Eleventh- Amendment immunity, but noted its applicability in a range of contexts in which Congress alters the federal-state balance of power. See Will, 491 U.S. at 65, 109 S.Ct. 2304. In Gregory, the Court applied this “plain statement” principle where Congress’ imposition of liability under the Age Discrimination in Employment Act would “upset the usual constitutional balance” by interfering with the states’ fundamental role in defining the qualifications of their state judges. Id. at 460-61, 111 S.Ct. 2395; see id. at 464-67, 111 S.Ct. 2395 (holding that Congress did not make a sufficiently clear statement in the ADEA that state judges are within the Act’s coverage). It cannot seriously be disputed that if Congress were required to make its intentions “clear and manifest,” Will, 491 U.S. at 65, 109 S.Ct. 2304, in order to impose False Claims Act liability on the states, it" }, { "docid": "7030684", "title": "", "text": "Amendment immunity. Specifically, the State argues that because it is ambiguous whether she is an \"employee,” the Eleventh Amendment bars her suit. The only support the State provides for this argument is the Supreme Court's decision in Gregory v. Ashcroft, 501 U.S. 452, 461-62, 111 S.Ct. 2395, 115 L.Ed.2d 410 (1991). In Gregory, Missouri state court judges brought claims under the Age Discrimination in Employment Act of 1967 (\"ADEA”) challenging a provision of the Missouri Constitution which mandated retirement of state judges at the age of seventy years. Id. at 455, 111 S.Ct. 2395. The Court noted that decisions regarding the qualifica-, tion and regulation of state judges are typically within the control of the states and that such \"decision[s][are] of the most fundamental sort for a sovereign entity.” Id. at 460, 111 S.Ct. 2395. The Court reasoned that because \"[c]ongressional interference with [such] decision[s] ... would upset the usual constitutional balance of federal and state powers,” Congress \"should make its intention clear and manifest if it intends to pre-empt the historic powers of the States.” Id. at 460-61, 111 S.Ct. 2395 (quotation omitted). The aspect of sovereignty at issue in Gregory was the states’ ability to determine the qualifications of state judges. Id. The Gregory court reasoned that by determining whether state judges as a class were \"employees” under the ADEA, it \"may avoid a potential constitutional problem.” Id. at 464, 111 S.Ct. 2395. In this interlocutory appeal where the State raises only an Eleventh Amendment challenge, the aspect of sovereignty at issue is the states’ immunity from suit in federal court. This context is wholly different from that in Gregory. The issue of congressional intent has already been decided by the Supreme Court in an Eleventh Amendment context. In Fitzpatrick v. Bitzer, the Court held that Congress clearly expressed an intent to abrogate the states’ Eleventh Amendment immunity from Title VII claims. 427 U.S. 445, 449 n. 2, 96 S.Ct. 2666, 49 L.Ed.2d 614 (1976). Therefore, unlike the Court in Gregory, this court need not address the issue of whether Crum-packer is an \"employee” under Title VII in" }, { "docid": "14044018", "title": "", "text": "federal courts to be certain of Congress' intent before finding that federal law overrides’ this balance.” Gregory v. Ashcroft, 501 U.S. at 461, 111 S.Ct. 2395 (quoting Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 243, 105 S.Ct. 3142, 87 L.Ed.2d 171 (1985)). Congress's intent must be \"unmistakably clear in the language of the statute.” Id. at 460-61, 111 S.Ct. 2395. In Gregory, Missouri state court judges challenged a provision of the Missouri Constitution that required certain judges to retire at the age of seventy as being in violation of the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. §§ 621-634 (ADEA). After concluding that \"the authority of the people of the States to determine the qualifications of their most important government officials ... lies at the heart of representative government,” the Court found that state judges were not covered by the ADEA because Congress did not make their inclusion unmistakably clear. Id. at 467, 111 S.Ct. 2395. As in Gregory, the balance of power between the States and the Federal Government is at issue in this case. If defining the qualifications of important government officials lies at the heart of representative government, then surely defining who decides what those qualifications will be is equally important. Although the States’ power in this regard must be exercised in accordance with the Fourteenth and Fifteenth Amendments, § 2 of the Fourteenth amendment establishes an explicit constitutional balance between the States and the Federal Government by giving the States authority to continue the prevalent practice of disenfranchising felons. If Congress wishes to alter the balance of power in this area, its intention must be unmistakably clear. . Only the Ninth Circuit has found a felon disenfranchisement provision to be a statutory violation. Fanakhan v. Washington, 338 F.3d 1009 (9th Cir.2003). There, the plaintiffs brought a Voting Rights Act challenge to the State of Washington's felon disenfranchisement provision, claiming that racism in the criminal justice system interacted with the state's suffrage laws to deny equal voting opportunities to minorities. Id. at 1020. The Ninth Circuit reversed the grant of summary judgment," }, { "docid": "7030667", "title": "", "text": "initial brief on its motion for summary judgment, the district court permitted the State and Crumpacker to file supplemental briefs on the issue. At the conclusion of the hearing, the district court informed the parties that it would consider the issue of Eleventh Amendment immunity prior to ruling on the motion. Without discussing the issue of Eleventh Amendment immunity, the district court denied the State’s motion with respect to Crumpacker’s gender discrimination claims, concluding Crumpacker was an “employee” under Title VII and that a genuine issue of material fact existed concerning whether the State discriminated against Crumpacker on the basis of gender. The district court also denied summary judgment on Crumpacker’s retaliation claim pertaining to her termination after writing the Franklin letter, reason ing that the State waived its arguments on the merits of Crumpacker’s claim by failing to assert them in the initial brief. On appeal, the State argues, inter alia, that the Eleventh Amendment bars Crum-packer’s suit because: (1) Congress did not abrogate the states’ sovereign immunity from Title VII retaliation claims and (2) even if Congress abrogated the states’ sovereign immunity from such claims, it did not do so for retaliation claims based solely on a plaintiffs subjective good-faith belief that the complained of activity is prohibited under Title VII. III. DISCUSSION A. Interlocutory Appellate Jurisdiction While this court typically has jurisdiction only over final decisions of the district court, it may consider appeals of interlocutory orders falling within the collateral order doctrine. Stewart v. Oklahoma, 292 F.3d 1257, 1259 (10th Cir.2002). Under the collateral order doctrine, an otherwise interlocutory order may be reviewed if it “fall[s] in that small class which finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated.” Puerto Rico Aqueduct, 506 U.S. at 143, 113 S.Ct. 684 (quotation omitted); Timpanogos Tribe, 286 F.3d at 1199. The Supreme Court has held that the denial of a state’s claim to Eleventh Amendment immunity" }, { "docid": "23417364", "title": "", "text": "all, as much a part of the Bill of Rights as the First. Both the management of education, and the general control of simple firearms possession by ordinary citizens, have traditionally been a state responsibility, and section 922(q) indisputably represents a singular incursion by the Federal Government into territory long occupied by the States. In such a situation where we are faced with competing constitutional concerns, the importance of Congressional findings is surely enhanced. We draw support for our conclusion concerning the importance of Congressional findings from recent holdings that when Congress wishes to stretch its commerce power so far as to intrude upon state prerogatives, it must express its intent to do so in a perfectly clear fashion. In Pennsylvania v. Union Gas, 491 U.S. 1, 109 S.Ct. 2273, 105 L.Ed.2d 1 (1989) (plurality opinion), the Court held that Congress could use its commerce power to abrogate the sovereign immunity guaranteed to the States by the Eleventh Amendment only if its intent to do so is “unmistakably clear.” Id. 491 U.S. at 7, 109 S.Ct. at 2277 (quoting Atascadero State Hospital v. Scanlon, 473 U.S. 234, 242, 105 S.Ct. 3142, 3147, 87 L.Ed.2d 171 (1985)). In another case decided the same day, the Court explained that this rule exists because “abrogation of sovereign immunity upsets the fundamental constitutional balance between the Federal Government and the States, placing a considerable strain on the principles of federalism that inform Eleventh Amendment doctrine.” Dellmuth v. Muth, 491 U.S. 223, 227, 109 S.Ct. 2397, 2400, 105 L.Ed.2d 181 (1989) (citations and internal quotation marks omitted). Two years later, in Gregory v. Ashcroft, the Court held that the Age Discrimination in Employment Act (ADEA) did not sweep away the Missouri Constitution’s provision for the mandatory retirement of state judges at age seventy. Arguing that a State’s power to set the qualifications for its judiciary “is a decision of the most fundamental sort for a sovereign entity,” - U.S. at -, 111 S.Ct. at 2400, the Court held that the ADEA did not bespeak a sufficiently clear intent to annul this state prerogative: “Congressional interference" }, { "docid": "7564699", "title": "", "text": "when considering abrogation in both the ADEA and the ADA, I cannot help but see the clarity with which Congress addressed sovereign immunity in the ADA. Comparing the language of these two statutes further spotlights the ambiguous nature of the ADEA’s treatment of Eleventh Amendment immunity. . By the way, an express invocation of Fourteenth Amendment powers is not present in the ADEA. Nor did Congress make findings in the ADEA that persons of a particular age constitute a discrete and insular minority. . In Kimel, the State presents one further issue: That should we determine the ADEA suit cannot be maintained against the State, we should remand with instructions to the district court to dismiss the supplemental state claim under the Florida Human Rights Act. That is the proper decision, and that claim is remanded to the district court with instructions that it be dismissed. See Eubanks v. Gerwen, 40 F.3d 1157, 1161-62 (11th Cir.1994). HATCHETT, Chief Judge, concurring in judgment in part, dissenting in part: I would hold that Congress effectively abrogated the states’ sovereign immunity under the Eleventh Amendment of the United States Constitution in both the Age Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621-634, and the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12101-12213. I therefore respectfully dissent from Part I of the Discussion in Judge Edmondson’s opinion, holding that because states are entitled to sovereign immunity under the Eleventh Amendment, private citizens are precluded from bringing lawsuits against such entities in federal court under the ADEA. I concur, however, in the result of Part II of Judge Edmondson’s Discussion, concluding that the states are not entitled to Eleventh Amendment immunity from federal lawsuits under the ADA. I disagree with Judge Cox’s analysis in its entirety and feel compelled to address, in particular, his assertion that the ADEA and the ADA are not “valid enforcement” legislation pursuant to Congress’s power under Section 5 of the Fourteenth Amendment. Congress may exercise its power to abrogate the states’ Eleventh Amendment immunity if (1) it “has ‘unequivocally expresse[d] its intent to abrogate the immunity’”; and (2)" }, { "docid": "6476249", "title": "", "text": "that government attorneys ... do not fall under the Elrod-Branti umbrella. ‘All circuit court decisions-and almost all other court decisions-involving attorneys in government service, other than public defenders, have held that Elrod/Branti do not protect these positions.’ ” Gordon, 110 F.3d at 890 (quoting Susan Lorde Martin, A Decade of Branti Decisions, 39 Am. U.L.Rev. 11, 46-47 (1989)). The district court properly granted summary judgment for the defendants as to Butler’s First Amendment claim. B. ADEA and Title VII Butler argues on appeal that the district court erred in holding that she failed to establish a prima facie case of age or sex discrimination. Further, Butler contends that the district court erred in deciding that she was not an employee, as defined in the ADEA and Title VII, and instead fell into the statutory exemption for an “appointee on the policy making level.” Because we hold that Butler does not have an ADEA claim after Kimel v. Florida Bd. of Regents, — U.S. -, 120 S.Ct. 631, 650, 145 L.Ed.2d 522 (2000), and that she was not an employee under Title VII, we do not consider whether she established a prima facie case of either age or sex discrimination. 1. The ADEA The ADEA makes it unlawful for an employer to discharge an employee who is at least 40 years old because of her age. See 29 U.S.C. §§ 623(a), 631(a); Gregory, 501 U.S. at 456, 111 S.Ct. 2395. After Butler’s appeal was argued, the United States Supreme Court held that states cannot be sued under the ADEA because Congress lacked the power under Section 5 of the Fourteenth Amendment to abrogate states’ Eleventh Amendment immunity for claims of age discrimination. See Kimel, 120 S.Ct. at 650. The rule of Kimel must be applied to all cases still open on direct review. See Harper v. Virginia Dep’t of Taxation, 509 U.S. 86, 95-97, 113 S.Ct. 2510, 125 L.Ed.2d 74 (1993) (<cWhen this Court applies a rule of federal law to the parties before it, that rule is the controlling interpretation of federal law and must be given full retroactive effect" }, { "docid": "14914560", "title": "", "text": "Concerns about federalism are particularly acute in this case, where the plaintiffs are using RICO to collaterally attack an administrative scheme created by state law to supplant personal injury tort claims. If Congress intended to recalibrate state and federal power in an area that has traditionally been the province of state government by placing federal courts in the position of reviewing a state agency’s handling of charges of impropriety by parties appearing in front of it, we would expect a clear statement of Congress’s intent to achieve such a result. The leading authority on this dear-statement principle is Gregory v. Ashcroft, 501 U.S. 452, 111 S.Ct. 2395, 115 L.Ed.2d 410 (1991). The plaintiffs in Gregory brought an Age Discrimination in Employment Act (“ADEA”) challenge to a provision in the Missouri constitution that required municipal judges to retire at the age of seventy. 501 U.S. at 455, 111 S.Ct. 2395. The Court held that judges were not covered by the ADEA’s definition of the term “employee,” which contains exclusions from its coverage that are ambiguous as to whether judges are protected by the ADEA. Id. at 464-67, 111 S.Ct. 2395. It acknowledged that Congress “holds a decided advantage” within the Constitution’s federalist structure by virtue of the Supremacy Clause, and that it “may legislate in areas traditionally regulated by the States.” Id. at 460, 111 S.Ct. 2395. Nonetheless, this power is an “extraordinary” one that “Congress does not exercise lightly.” Id. Moreover, the claims in Gregory raised particularly serious federalism concerns because the appointment of judges is “a decision of the most fundamental sort for a sovereign entity.” Id. Accordingly, the Court applied a “plain statement rule” when interpreting the ADEA in order to avoid a potential conflict between the statute and the Constitution. Id. at 460-61, 111 S.Ct. 2395. The Gregory Court relied on prior decisions invoking this interpretive canon in a variety of contexts to justify relying upon it when interpreting the ADEA. To these decisions, we can add the Hunt and Apex Hosiery cases. As mentioned earlier, one of the historic concerns of courts construing the private right" }, { "docid": "7030683", "title": "", "text": "a subjective good-faith belief that the complained of conduct violated Title VII. This ruling is not at issue on appeal. . The district court did not expressly rule on the Eleventh Amendment issue in its order partially denying the State’s motion for summary judgment. While the State failed to raise Eleventh Amendment immunity in its briefs in support of its motion, the State raised this issue at the motion hearing. Further, the district court provided the parties with an opportunity to submit supplemental briefs and indicated that it would consider the issue in ruling on the State’s motion. Because the issue of Eleventh Amendment immunity was properly raised, this court has jurisdiction to consider the issue in this appeal. Stewart v. Oklahoma, 292 F.3d 1257, 1260 (10th Cir.2002) (holding that the district court's failure to address the issue of Eleventh Amendment immunity is an implicit denial of the defendant state’s claim to Eleventh Amendment immunity). .The State argues that the determination of whether Crumpacker is an \"employee” under Title VII involves an issue of Eleventh Amendment immunity. Specifically, the State argues that because it is ambiguous whether she is an \"employee,” the Eleventh Amendment bars her suit. The only support the State provides for this argument is the Supreme Court's decision in Gregory v. Ashcroft, 501 U.S. 452, 461-62, 111 S.Ct. 2395, 115 L.Ed.2d 410 (1991). In Gregory, Missouri state court judges brought claims under the Age Discrimination in Employment Act of 1967 (\"ADEA”) challenging a provision of the Missouri Constitution which mandated retirement of state judges at the age of seventy years. Id. at 455, 111 S.Ct. 2395. The Court noted that decisions regarding the qualifica-, tion and regulation of state judges are typically within the control of the states and that such \"decision[s][are] of the most fundamental sort for a sovereign entity.” Id. at 460, 111 S.Ct. 2395. The Court reasoned that because \"[c]ongressional interference with [such] decision[s] ... would upset the usual constitutional balance of federal and state powers,” Congress \"should make its intention clear and manifest if it intends to pre-empt the historic powers of the" }, { "docid": "1047335", "title": "", "text": "there. It is undisputed that the regulation of the practice of law is traditionally the province of the states. Federal law “may not be interpreted to reach into areas of State sovereignty unless' the language of the federal law compels the intrusion.” City of Abilene v. FCC, 164 F.3d 49, 52 (D.C.Cir.1999). Otherwise put, “if Congress intends to alter the ‘usual constitutional balance between the States and the Federal Government,’ it must make its intention to do so ‘unmistak ably clear in the language of the statute.’ ” Will v. Michigan Dep’t of State Police, 491 U.S. 58, 65, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989) (quoting Atascadero State Hospital v. Scanlon, 473 U.S. 234, 242, 105 S.Ct. 3142, 87 L.Ed.2d 171 (1985)). By now it should be abundantly plain that Congress has not made an intention to regulate the practice of law “unmistakably clear” in the language of the GLBA. In Gregory v. Ashcroft, 501 U.S. 452, 111 S.Ct. 2395, 115 L.Ed.2d 410 (1991), citing, inter alia, Will and Atascadero State Hospital, the Supreme Court held that [t]his plain statement rule is nothing more than an acknowledgment that the States retain substantial sovereign powers under our constitutional scheme, powers with which Congress does not readily interfere. 501 U.S. at 461, 111 S.Ct. 2395. The Commission contends that this plain statement rule of Gregory is not applicable, arguing that Gregory, which concerns a determination of qualification for state officials, involved a “decision of the most fundamental sort for a sovereign entity.” Id. at 460, 111 S.Ct. 2395. According to the Commission, the present regulation, “by contrast ... regulates the conduct of private entities or individuals; there is no regulation of States or state officials.” Reply Brief at 27. This response does not pass muster. Gregory itself quoted from Will the language in which the Supreme Court rejected an argument that the plain statement rule applied only in an Eleventh Amendment context. “ ‘Atascadero, was an Eleventh Amendment case, but a similar approach is applied in other contexts.’ ” Gregory, 501 U.S. at 461, 111 S.Ct. 2395 (quoting Will, 491 U.S." }, { "docid": "7030682", "title": "", "text": "asserting otherwise valid claims at the margins of Title VII are drastically reduced, if not eradicated.” Id. Therefore, Congress is authorized to enact such prophylactic § 5 legislation to deter gender discrimination in' the workplace and that authorization extends to the prohibition of retaliation even when the underlying conduct may not constitute a violation of Title VII. IV. CONCLUSION For the reasons stated above, this court AFFIRMS the district court’s denial of the State’s claim to Eleventh Amendment immunity. . Crumpacker’s retaliation claim is premised on opposition conduct. See 42 U.S.C. § 2000e-3(a) (designating as an unlawful employment practice discrimination against an individual \"because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter”). . The district court granted the State summary judgment on Crumpacker's retaliation claim premised on a complaint she made to the State regarding inappropriate computer usage by a co-worker, reasoning that Crum-packer did not have a subjective good-faith belief that the complained of conduct violated Title VII. This ruling is not at issue on appeal. . The district court did not expressly rule on the Eleventh Amendment issue in its order partially denying the State’s motion for summary judgment. While the State failed to raise Eleventh Amendment immunity in its briefs in support of its motion, the State raised this issue at the motion hearing. Further, the district court provided the parties with an opportunity to submit supplemental briefs and indicated that it would consider the issue in ruling on the State’s motion. Because the issue of Eleventh Amendment immunity was properly raised, this court has jurisdiction to consider the issue in this appeal. Stewart v. Oklahoma, 292 F.3d 1257, 1260 (10th Cir.2002) (holding that the district court's failure to address the issue of Eleventh Amendment immunity is an implicit denial of the defendant state’s claim to Eleventh Amendment immunity). .The State argues that the determination of whether Crumpacker is an \"employee” under Title VII involves an issue of Eleventh" }, { "docid": "7030668", "title": "", "text": "(2) even if Congress abrogated the states’ sovereign immunity from such claims, it did not do so for retaliation claims based solely on a plaintiffs subjective good-faith belief that the complained of activity is prohibited under Title VII. III. DISCUSSION A. Interlocutory Appellate Jurisdiction While this court typically has jurisdiction only over final decisions of the district court, it may consider appeals of interlocutory orders falling within the collateral order doctrine. Stewart v. Oklahoma, 292 F.3d 1257, 1259 (10th Cir.2002). Under the collateral order doctrine, an otherwise interlocutory order may be reviewed if it “fall[s] in that small class which finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated.” Puerto Rico Aqueduct, 506 U.S. at 143, 113 S.Ct. 684 (quotation omitted); Timpanogos Tribe, 286 F.3d at 1199. The Supreme Court has held that the denial of a state’s claim to Eleventh Amendment immunity falls within the collateral order doctrine. Puerto Rico Aqueduct, 506 U.S. at 147, 113 S.Ct. 684. Therefore, the district court’s denial of the State’s claim to Eleventh Amendment immunity is immediately appealable. In addition to the Eleventh Amendment immunity issue, the State appeals other various issues raised in its motion for summary judgment, including: (1) whether Crumpacker is an “employee” under Title VII ; (2) whether a plaintiff may maintain a retaliation claim based on a purely subjective good-faith belief that the complained of activity violated Title VII; and (8) whether Crumpacker presented sufficient evidence to support her retaliation claim. The district court’s resolution of these issues, however, does not decide questions separate from the merits, and is neither conclusive nor effectively unre-viewable on appeal from final judgment. Timpanogos Tribe, 286 F.3d at 1200. Therefore, these issues do not warrant an interlocutory appeal in their own right. This court, however, may exercise pendent appellate jurisdiction over otherwise nonappealable decisions that are “inextricably intertwined with the appealable decision” or require review to provide a meaningful analysis" }, { "docid": "23417365", "title": "", "text": "S.Ct. at 2277 (quoting Atascadero State Hospital v. Scanlon, 473 U.S. 234, 242, 105 S.Ct. 3142, 3147, 87 L.Ed.2d 171 (1985)). In another case decided the same day, the Court explained that this rule exists because “abrogation of sovereign immunity upsets the fundamental constitutional balance between the Federal Government and the States, placing a considerable strain on the principles of federalism that inform Eleventh Amendment doctrine.” Dellmuth v. Muth, 491 U.S. 223, 227, 109 S.Ct. 2397, 2400, 105 L.Ed.2d 181 (1989) (citations and internal quotation marks omitted). Two years later, in Gregory v. Ashcroft, the Court held that the Age Discrimination in Employment Act (ADEA) did not sweep away the Missouri Constitution’s provision for the mandatory retirement of state judges at age seventy. Arguing that a State’s power to set the qualifications for its judiciary “is a decision of the most fundamental sort for a sovereign entity,” - U.S. at -, 111 S.Ct. at 2400, the Court held that the ADEA did not bespeak a sufficiently clear intent to annul this state prerogative: “Congressional interference with this decision of the people of Missouri, defining their constitutional officers, would upset the usual constitutional balance of federal and state powers. For this reason, ‘it is incumbent upon the federal courts to be certain of Congress’ intent before finding that federal law overrides’ this balance.” Id. — U.S. at -, 111 S.Ct. at 2401 (quoting Atascadero, 473 U.S. at 243, 105 S.Ct. at 3147). We recognize that the rule being applied in those cases is one of statutory construction. Nevertheless, Gregory, Union Gas, and Bass establish that Congress’ power to use the Commerce Clause in such a way as to impair a State’s sovereign status, and its intent to do so, are related inquiries. Thus, in Gregory, Congress’ power to trump the Missouri Constitution was unquestioned but its intent to do so was unclear; hence the Court held that the State’s Tenth Amendment interests would prevail. Here, Congress surely intended to make the possession of a firearm near a school a federal crime, but it has not taken the steps necessary to demonstrate" }, { "docid": "16604010", "title": "", "text": "employ a plain statement rule of statutory construction. In particular, they argue that we should construe Section 2 to require a balancing framework unless Congress has unmistakably indicated its intent to upset the usual constitutional balance of federal and state powers. In Gregory, the Supreme Court granted certiorari to decide whether the mandatory retirement provision for state judges in the Missouri Constitution violated the federal Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C. §§ 621-634. See — U.S. at —, 111 S.Ct. at 2398. The ADEA prohibits any employer, including state employers, from discharging an employee who is at least 40 years old because of such individual’s age. 29 U.S.C. § 630(b)(2). The definition of “employee” under the ADEA, however, excludes all elected and most high-ranking government officials. See 29 U.S.C. § 630(f). The crucial question in Gregory thus became whether state judges, who are appointed by. the Governor of Missouri and thereafter subject to retention elections, were “employees” within the meaning of the ADEA. — U.S. —, 111 S.Ct. at 2403. In order to avoid potential constitutional problems, the Court in Gregory applied a “plain statement” rule of statutory construction, requiring Congress to unmistakably express its intention to alter the usual constitutional balance between the states and the federal government. Because Congress did not plainly express its intent to include appointed state judges within the terms of the ADEA, the Court held that such judges were not covered. — U.S. at —, 111 S.Ct. at 2404. The Court reasoned that it “would not read the ADEA to cover state judges unless Congress has made it clear that judges are included.” Id. (emphasis in original). The Court’s application of the plain statement rule in Gregory rested on two concerns. The first was the nature of the state interest involved. The Court emphasized that the Missouri constitutional provision was not just “an area traditionally regulated by the States, [but] a decision of the most fundamental sort for a sovereign entity.” — U.S. at —, 111 S.Ct. at 2400. According to the Court, “the authority of the people of the" }, { "docid": "12218363", "title": "", "text": "for applying the clear statement rule — “all involved instances in which there had been no express waiver or abrogation of the state’s traditional immunity from suit.” Id. In contrast, the court opined, the ADA and the Rehabilitation Act each contain an express abrogation of the Eleventh Amendment ’ immunity of the States. See id. at 172-73 (citing 42 U.S.C.A. § 2000d-7(a)(l) (West 1994) (Rehabilitation Act); 42 U.S.C.A. § 12202 (West 1995) (ADA)). The court implicitly recognized that the clear statement rule has been applied by the Supreme Court in cases where there was an express abrogation, by Congress of the States’ Eleventh Amendment immunity, see, e.g., Gregory v. Ashcroft, 501 U.S. 452, 111 S.Ct. 2395, 115 L.Ed.2d 410 (1991) (holding that Missouri’s mandatory retirement requirement for state judges does not violate the Age Discrimination in Employment Act (ADEA)), and explicitly conceded that whenever “ ‘Congress intends to alter the usual constitutional balance between the States and the Federal Government, it must make its intention to do so unmistakably clear in the language of the statute,’” Yeskey, 118 F.3d at 173 (quoting Gregory, 501 U.S. at 460, 111 S.Ct. at 2400-01), and that “prison administration [is] a ‘core’ state function,” id. Notwithstanding these concessions, the court determined that the clear statement rule was inapplicable because, it concluded, Congress made clear in the language of the statutes that the ADA and the Rehabilitation Act apply to state prisons. See id. The court acknowledged the looming “specter of federal court management of state prisons,” resulting from application of the ADA and the Rehabilitation Act. Id. at 174; see also id. (“ ‘[I]f the ADA applies to routine prison decisions, it is not unfathomable that courts will be used to reconstruct cells and prison space, to alter scheduling of inmate movements and assignments, and to interfere with security procedures.’” (quoting Appellees’ Br. at 15)). The court held, however, that such concerns “do not override our conclusion that the ADA applies to prisons.” Id. The court concluded: “[O]ur holding does not dispose of the controversial and difficult question [of] whether principles of deference to" }, { "docid": "7030685", "title": "", "text": "States.” Id. at 460-61, 111 S.Ct. 2395 (quotation omitted). The aspect of sovereignty at issue in Gregory was the states’ ability to determine the qualifications of state judges. Id. The Gregory court reasoned that by determining whether state judges as a class were \"employees” under the ADEA, it \"may avoid a potential constitutional problem.” Id. at 464, 111 S.Ct. 2395. In this interlocutory appeal where the State raises only an Eleventh Amendment challenge, the aspect of sovereignty at issue is the states’ immunity from suit in federal court. This context is wholly different from that in Gregory. The issue of congressional intent has already been decided by the Supreme Court in an Eleventh Amendment context. In Fitzpatrick v. Bitzer, the Court held that Congress clearly expressed an intent to abrogate the states’ Eleventh Amendment immunity from Title VII claims. 427 U.S. 445, 449 n. 2, 96 S.Ct. 2666, 49 L.Ed.2d 614 (1976). Therefore, unlike the Court in Gregory, this court need not address the issue of whether Crum-packer is an \"employee” under Title VII in an attempt to avoid a \"potential constitutional problem.” Gregory, 501 U.S. at 464, 111 S.Ct. 2395. . The State argues that it is ambiguous whether, under Title VII, a retaliation claim may be based on challenged conduct which does not actually violate Title VII. Further, the State argues that such ambiguity entitles the State to Eleventh Amendment immunity. This court, however, has held that an actual violation is not required to maintain a retaliation claim under Title VII. See Love v. RE/MAX of Am., Inc., 738 F.2d 383, 385 (10th Cir.1984). Accordingly, because there is no ambiguity regarding this issue, the State’s argument lacks merit." }, { "docid": "12218362", "title": "", "text": "accommodation” and “undue burden” in the prison context. Drawing heavily from the Seventh Circuit’s Crawford opinion, the Third Circuit also recently held that the ADA and the Rehabilitation Act apply to state correctional facilities. See Yeskey v. Pennsylvania Dep’t of Corrections, 118 F.3d 168 (3rd Cir.1997). In Yeskey, the court determined that the statutory language was “all-encompassing” and “broad” and therefore brought state prisons within the scope of the statutes. See id. at 170-71. Unlike the Seventh Circuit, the court also relied on regulations promulgated by the Department of Justice (DOJ) “listing correctional facilities ... as covered entities,” as confirmation “that the Rehabilitation Act and the ADA apply to state and locally-operated [prisons].” Id. at 172. The court recognized that we had questioned in Torcasio the applicability of the ADA and the Rehabilitation Act to state prisons, but held that our analysis in that case was “seriously flawed.” Id. According to Yeskey, our “extension of the clear statement rule was unwarranted [because] Will, Atascadero, and Pennhurst ” — eases we cited in Torcasio as support for applying the clear statement rule — “all involved instances in which there had been no express waiver or abrogation of the state’s traditional immunity from suit.” Id. In contrast, the court opined, the ADA and the Rehabilitation Act each contain an express abrogation of the Eleventh Amendment ’ immunity of the States. See id. at 172-73 (citing 42 U.S.C.A. § 2000d-7(a)(l) (West 1994) (Rehabilitation Act); 42 U.S.C.A. § 12202 (West 1995) (ADA)). The court implicitly recognized that the clear statement rule has been applied by the Supreme Court in cases where there was an express abrogation, by Congress of the States’ Eleventh Amendment immunity, see, e.g., Gregory v. Ashcroft, 501 U.S. 452, 111 S.Ct. 2395, 115 L.Ed.2d 410 (1991) (holding that Missouri’s mandatory retirement requirement for state judges does not violate the Age Discrimination in Employment Act (ADEA)), and explicitly conceded that whenever “ ‘Congress intends to alter the usual constitutional balance between the States and the Federal Government, it must make its intention to do so unmistakably clear in the language of the" }, { "docid": "14044017", "title": "", "text": "Lane, 124 S.Ct. at 1992. The plaintiffs also cite to the Court's decision in Hunter v. Underwood as evidence of a record of constitutional violations with regard to felon disenfranchisement provisions. A key problem with this argument is that the Court did not decide Hunter until 1985, three years after the 1982 amendments to the Voting Rights Act. Thus, Congress could not have relied on Hunter when it enacted the amended Section 2 of the Voting Rights Act. Moreover, evi dence of a purposefully discriminatory criminal disenfranchisement law in Alabama could not justify congressional regulation of Florida's law, which was enacted for race-neutral reasons. . We also note that application of the VRA to Florida’s felon disenfranchisement provision could raise federalism concerns in that it significantly alters the constitutionally mandated balance of power between the States and the Federal Government. See Gregory v. Ashcroft, 501 U.S. 452, 457-61, 111 S.Ct. 2395, 115 L.Ed.2d 410 (1991). Whenever Congress intrudes upon \"a decision of the most fundamental sort for a [State], ... ‘it is incumbent upon the federal courts to be certain of Congress' intent before finding that federal law overrides’ this balance.” Gregory v. Ashcroft, 501 U.S. at 461, 111 S.Ct. 2395 (quoting Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 243, 105 S.Ct. 3142, 87 L.Ed.2d 171 (1985)). Congress's intent must be \"unmistakably clear in the language of the statute.” Id. at 460-61, 111 S.Ct. 2395. In Gregory, Missouri state court judges challenged a provision of the Missouri Constitution that required certain judges to retire at the age of seventy as being in violation of the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. §§ 621-634 (ADEA). After concluding that \"the authority of the people of the States to determine the qualifications of their most important government officials ... lies at the heart of representative government,” the Court found that state judges were not covered by the ADEA because Congress did not make their inclusion unmistakably clear. Id. at 467, 111 S.Ct. 2395. As in Gregory, the balance of power between the States and the Federal Government" } ]

[ { "docid": "23001731", "title": "", "text": "suppress the evidence gathered during the search and questioning of Aulet at the airport. On appeal Aulet, represented by a different attorney, alleges that she did not receive effective assistance of counsel at trial, that the evidence did not support a guilty verdict, that the district judge improperly excluded cooperation evidence, and that the jury was not properly charged on the issue of conscious avoidance. DISCUSSION 1. The Record on Appeal Before reaching the merits of Au-let’s claims, we note the difficulties encountered in addressing an issue which is raised for the first time on appeal, as is the ineffective assistance of counsel question in this case. Generally, an appellate court will not consider an issue that has not been presented to the court below. United States v. Hermann, 524 F.2d 1103, 1104 (2d Cir. 1975); United States v. Foddrell, 523 F.2d 86, 87 (2d Cir.), cert. denied, 423 U.S. 950, 96 S.Ct. 370, 46 L.Ed.2d 286 (1975). The usual method of challenging the effectiveness of defense counsel in a federal criminal trial is by a collateral attack on the conviction under 28 U.S.C. § 2255. See, e. g., United States v. Schreiber, 599 F.2d 534, 538 (3d Cir.), cert. denied, 444 U.S. 843, 100 S.Ct. 86, 62 L.Ed.2d 56 (U.S. Oct. 2, 1979); United States v. Rodriquez, 582 F.2d 1015, 1016 (5th Cir. 1978) (per curiam); United States v. Kazni, 576 F.2d 238, 242 (9th Cir. 1978). When this path is taken, the district judge can, in an appropriate case, hold an evidentiary hearing and develop a full factual record before reaching a decision. The value of proceeding in this way is amply demonstrated by the instant case. Aulet’s attack on trial counsel’s effectiveness is directed at the failure to move for suppression of the physical evidence and statements taken from Aulet at the airport during and subsequent to an allegedly illegal search. On a record completely devoid of any indication of trial counsel’s reasons for foregoing a suppression motion, Aulet has asked us to hold that the failure to make such a motion constituted a denial of Aulet’s" } ]

[ { "docid": "22419552", "title": "", "text": "ounces) consistent with either distribution or personal consumption were the only evidence supporting the distribution charge on which Gordon was convicted. My brothers conclude that the district court’s determination of the voluntariness of the gesture is fully supported by the evidence. See United States v. Smith, 608 F.2d 1011, 1013 (4th Cir.1979) (determination of waiver reviewed by appellate court under “clearly erroneous” standard). They reach that conclusion because Gordon never indicated that he wanted to conclude all questioning and even his negative response to the first question could have been reasonably interpreted as simply refusing to answer the specific question. If our inquiry were whether Gordon unambiguously asserted his right to remain silent, I would join Judge Wilkins' opinion. But I fear he asks the wrong question. The inquiry is not whether Gordon clearly invoked his rights to remain silent and to have counsel present during custodial interrogation but, rather, whether he ever waived them. It cannot be said here that a determination of knowing and voluntary waiver is supported by substantial, indeed if any, evidence. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and its progeny have made indisputably clear that the prosecution can make no use of an accused’s statements elicited during custodial interrogation unless it demonstrates that an accused had waived his Miranda rights prior to interrogation. Miranda, 384 U.S. at 444, 86 S.Ct. at 1612; North Carolina v. Butler, 441 U.S. 369, 373, 99 S.Ct. 1755, 1757, 60 L.Ed.2d 286 (1979) (courts must presume that defendant did not waive Miranda rights); Tague v. Louisiana, 444 U.S. 469, 470-71, 100 S.Ct. 652, 653, 62 L.Ed.2d 622 (1980) (per curiam) (heavy burden on government to show knowing and intelligent waiver); Colorado v. Connelly, 479 U.S. 157, 168, 107 S.Ct. 515, 522, 93 L.Ed.2d 473 (1986) (government bears heavy burden and must prove waiver by “preponderance of evidence”). Waiver is defined as an “intentional relinquishment or abandonment of a known right.” Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938). Thus, the record must contain sufficient evidence to" }, { "docid": "22919679", "title": "", "text": "that it be the product of a free and meaningful choice. Moore v. Michigan, 355 U.S. 155, 164, 78 S.Ct. 191, 196, 2 L.Ed.2d 167 (1957); Wilks v. Israel, 627 F.2d 32, 35 (7th Cir. 1980); Maynard v. Meachum, 545 F.2d 273, 278 (1st Cir. 1976). This does not mean, however, that a court may not, under certain circumstances, require the defendant to select from a limited set of options a course of conduct regarding his representation. “A criminal defendant may be asked, in the interest of orderly procedures, to choose between waiver and another course of action as long as the choice presented to him is not constitutionally offensive.” Maynard v. Meachum, supra, 545 F.2d at 278. See also Wilks v. Israel, supra, 627 F.2d at 35; United States v. Davis, 604 F.2d 474, 483 (7th Cir. 1979); United States ex rel. Testamark v. Vincent, 496 F.2d 641, 643-44 (2d Cir. 1974), cert. denied, 421 U.S. 951, 95 S.Ct. 1685, 44 L.Ed.2d 105 (1975); United States v. Morrissey, 461 F.2d 666, 670 (2d Cir. 1972). “That petitioner did not particularly like the choice presented to him and that he did not want to proceed pro se are not sufficient reasons to render the choice constitutionally offensive.” Wilks v. Israel, supra, 627 F.2d at 36. The question, therefore, is whether Justice Cropper’s refusal to assign new counsel — which in turn forced the defendant to select from among the unwanted options — placed McKee in a “dilemma of constitutional magnitude,” Maynard v. Meachum, supra, 545 F.2d at 278, that would justify granting the requested writ. It is settled in this Circuit that “[o]nce trial has begun ... a defendant does not have the unbridled right to reject assigned counsel and demand another.” United States v. Calabro, 467 F.2d 973, 986 (2d Cir. 1972), cert. denied, 410 U.S. 926, 93 S.Ct. 1357, 35 L.Ed.2d 587 (1973). This Court has long recognized that certain restraints must be put on the reassignment of counsel lest the right be “manipulated so as to obstruct the orderly procedure in the courts or to interfere with" }, { "docid": "9830775", "title": "", "text": "orderly procedure, to choose between waiver of counsel and another course of action as long as the choice presented to him was not constitutionally offensive. United States v. Davis, 604 F.2d at 483 (quoting Maynard v. Mea-chum, 545 F.2d 273, 278 (1st Cir.1976)). In the present case, the court offered Mitchell with a clear choice between representation by Hackett or self-representation with Hackett available for consultation at the defendant’s discretion. The court indicated it was too near the start of the trial to appoint new counsel for Mitchell. In response, Mitchell persisted in his desire to proceed pro se. The issue presented here is whether proceeding pro se with Hackett as standby counsel was a constitutionally adequate alternative to potentially ineffective assistance by Hackett’s complete representation by Mitchell. Mitchell has asserted no allegation that Hackett was incompetent. Instead, he contends that his “counsel was ineffective insofar as establishing any relationship between” Hackett and himself. Since he and Hackett “could never calmly and productively work together,” Mitchell argues that by the court’s presenting him with the choice of representation by Hackett or self-representation with Hackett as standby counsel, he could not voluntarily waive his Sixth Amendment right through a free and meaningful choice. See Moore v. Michigan, 355 U.S. 155, 164, 78 S.Ct. 191, 196, 2 L.Ed.2d 187 (1957); Love v. Young, 781 F.2d 1307, 1316 (7th Cir.1986). The Supreme Court, however, has held that there is no constitutional right to a “meaningful [i.e., harmonious] attorney-client relationship,” Morris v. Slappy, 461 U.S. 1, 13-14, 103 S.Ct. 1610, 1617, 75 L.Ed.2d 610 (1983), and therefore, the trial court did not offer Mitchell an impermissible choice by requiring him to proceed either pro se plus standby counsel or with an attorney he didn’t like. While as an indigent Mitchell had a constitutional right to have conflict-free, competent legal representation paid by the state, Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 92 L.Ed.2d 799 (1963), he did not have the right to the appointed attorney of his own choice. United States v. Ely, 719 F.2d 902, 904 (7th Cir.1983), cert. denied, 465" }, { "docid": "833602", "title": "", "text": "particular facts and circumstances surrounding the case, including the background, experience and conduct of the accused, the waiver was made by the accused intelligently and understandingly, with knowledge of his right to counsel, even if indigent. Zerbst, supra; Camley, supra; Gideon, supra. While allegations or a showing that the trial court did not make such a determination would prima facie establish a ground for a habeas corpus hearing, the burden on a petitioner who has affirmatively waived counsel is to show by a preponderance of the evidence that the waiver was not made intelligently or understandingly. Zerbst, supra; United States v. Morgan, 346 U.S. 502, 512, 74 S.Ct. 247, 98 L.Ed. 248 (1954); Moore v. State of Michigan, 355 U.S. 155, 161-162, 78 S.Ct. 191, 2 L.Ed.2d 167 (1957). A preponderance of the evidence is not created by allegations and a showing that the state court trial judge did not literally fulfill all elements of a formula describing his responsibilities for acceptance of waiver of counsel. Substance rather than form is the guiding criterion for reviewing courts. We recognize that Spanbauer’s commission, within a short time, of a series of related crimes, together with his background, general behavior and the reports of the psychiatrists and psychologists from the Wisconsin sexual deviate facility indicate that Spanbauer was mentally and emotionally disturbed. But the fact of such disturbance does not itself require the conclusion of incompetency to waive counsel. It is not necessary to review the general question whether Spanbauer was or was not mentally disturbed. The only question for the federal district court was Spanbauer’s competence to waive counsel intelligently and understandingly. That question was one of the central issues in the full evidentiary hearing conducted by the federal district court in this case. Following a thorough review of the record, and under the standard applicable in the assessment of the validity of a waiver of counsel in a state court proceeding, we conclude that the district court did not err in its findings that Spanbauer was advised of his right to counsel, even if indigent, and that he was competent" }, { "docid": "22919678", "title": "", "text": "242, 87 L.Ed. 268 (1942). See Faretta v. California, 422 U.S. 806, 835, 95 S.Ct. 2525, 2541, 45 L.Ed.2d 562 (1975); Johnson v. Zerbst, 304 U.S. 458, 464-65, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938); United States v. Tompkins, 623 F.2d 824, 827 (2d Cir. 1980). At oral argument, counsel for McKee conceded that the waiver in this case was knowing and intelligent, since McKee relinquished his right to court-appointed counsel with full understanding of the penalties he faced and the pitfalls of self-representation. The issue on this appeal, therefore, is whether McKee’s waiver can be said to be voluntary in light of the events which took place on the second day of jury selection. McKee contends that in electing to represent himself with the help of a legal advisor he was “given no freedom of choice,” but rather was “bowing to the inevitable.” Appellant’s Br. at 15-16 (quot ing United States ex rel. Martinez v. Thomas, 526 F.2d 750, 755-56 (2d Cir. 1975)). Of course, the very essence of a voluntary waiver is that it be the product of a free and meaningful choice. Moore v. Michigan, 355 U.S. 155, 164, 78 S.Ct. 191, 196, 2 L.Ed.2d 167 (1957); Wilks v. Israel, 627 F.2d 32, 35 (7th Cir. 1980); Maynard v. Meachum, 545 F.2d 273, 278 (1st Cir. 1976). This does not mean, however, that a court may not, under certain circumstances, require the defendant to select from a limited set of options a course of conduct regarding his representation. “A criminal defendant may be asked, in the interest of orderly procedures, to choose between waiver and another course of action as long as the choice presented to him is not constitutionally offensive.” Maynard v. Meachum, supra, 545 F.2d at 278. See also Wilks v. Israel, supra, 627 F.2d at 35; United States v. Davis, 604 F.2d 474, 483 (7th Cir. 1979); United States ex rel. Testamark v. Vincent, 496 F.2d 641, 643-44 (2d Cir. 1974), cert. denied, 421 U.S. 951, 95 S.Ct. 1685, 44 L.Ed.2d 105 (1975); United States v. Morrissey, 461 F.2d 666, 670 (2d Cir." }, { "docid": "10798021", "title": "", "text": "concerned the competence of his former counsel. Appellant alleged that his defense counsel did not inform him of his rights under IAD and advised appellant that he could only fulfill his wish to remain in federal custody by pleading guilty to the federal charges against him. These allegations raise grave doubts about the quality of assistance which appellant received in making his guilty plea. Appellant’s assertions are uncontradicted by the scant record before us, and it is clear that his former counsel was unaware of or chose to ignore the provisions of the IAD. In these circumstances we can only conclude that the district court abused its discretion in denying appellant’s § 2255 motion without an evidentiary hearing. Appellant’s former counsel allegedly failed to assert a defense which would have barred the prosecution of charges against her client. A Sixth-Amendment claim grounded on such a credible allegation, even if unartfully worded in a pro se motion, must be explored at a hearing which gives a defendant an adequate opportunity to shoulder his burden of showing the inadequacy of his counsel. See Venable v. Neil, 463 F.2d 1167 (6th Cir.), cert. denied, 409 U.S. 1079, 93 S.Ct. 677, 34 L.Ed.2d 669 (1972); Goodwin v. Cardwell, 432 F.2d 521 (6th Cir. 1970). In the event that upon remand a determination is made that the appellant did not receive effective assistance of counsel in making his guilty plea and a withdrawal of that plea is permitted, then his waiver of his rights under IAD because of that plea must also be invalid. This court’s remand should not be interpreted as expressing or intimating a view on the question whether the failure of counsel to advise her client of his rights under the IAD is per se ineffective assistance of counsel. Reversed and remanded for an evidentia-ry hearing. . The dissent’s reliance on United States v. Mauro, 436 U.S. 340, 98 S.Ct. 1834, 56 L.Ed.2d 329 (1978), is puzzling. We find nothing in Mauro to suggest that IAD rights are nonwaivable. On the contrary, the Court in Mauro considered whether one defendant had waived" }, { "docid": "3280222", "title": "", "text": "L.Ed.2d 562 (1975). At bar the Warledos and Quinn utilized the assistance of court-appointed counsel for a portion of the trial consisting of part of the second day as well as the third day when the trial was concluded. We are not saying, however, that partial representation serves to overcome any deprivation. Thus, it is not like full representation. See Maynard v. Meachum, 545 F.2d 273, 277 (1st Cir. 1976). Given the foregoing, together with the presence of counsel and his active participation and the added factor of election by the defendants to represent themselves in the first instance, the sum total does not, however, constitute a deprivation which would of itself justify a reversal. Since the judgments are being reversed and the cause being remanded for new trial on other grounds, it is unnecessary in any event to condemn the trial court’s action. At the same time, on retrial the question of waiver should be pursued in more depth. There should be a more vigorous pursuit of the capacities of the defendants, their possible misapprehensions of laws pertaining to their being represented and the meaningfulness of their waiver of counsel. See Moore v. Michigan, 355 U.S. 155, 164, 78 S.Ct. 191, 2 L.Ed.2d 167 (1957). This is particularly pertinent to Johnson and Jack Warledo, who were apparently acting under the advice of the defendant Quinn. It is important for the judge to question “as long and as thoroughly as the circumstances of the case before him demand.” Von Moltke v. Gillies, 332 U.S. 708, 723-24, 68 S.Ct. 316, 323, 92 L.Ed. 612 (1948). Such an inquiry is particularly important in a conspiracy case which presents a special complexity. Von Moltke, supra, at 721-22, 68 S.Ct. 316. There is one other problem here and that is the question of separate counsel for multiple defendants. There should be inquiry as to possible conflicts between their defenses. See Campbell v. U.S., 122 U.S. App.D.C. 143, 352 F.2d 359 (1965). On retrial the entire question is to be considered in somewhat more depth and breadth with particular attention to the elements which the" }, { "docid": "22873286", "title": "", "text": "task of reviewing courts, whether a defendant has intelligently waived a constitutional right turns not simply on the state of the record, but on all of the circumstances of the case. See Henderson v. Morgan, 426 U.S. 637, 644, 96 S.Ct. 2253, 2257, 49 L.Ed.2d 108 (1976). See also United States v. Rosenthal, 470 F.2d 837, 844-45 (2d Cir. 1972); Townes v. United States, 371 F.2d 930, 934 (4th Cir. 1966). Accordingly, this case must be remanded to the district court for further proceedings to determine whether, considering the facts and circumstances of the particular case, including the background, experience and conduct of the accused, the waiver of counsel was effective. See Johnson v. Zerbst, supra, 304 U.S. at 464, 58 S.Ct. 1019. We think it is appropriate at this juncture to indicate what factors, in our view, might influence this determination. First, it cannot be disputed that an effective waiver must be the product of a free and' meaningful choice. See Moore v. Michigan, supra, 355 U.S. at 164, 78 S.Ct. 191; Von Moltke v. Gillies, 322 U.S. 708, 729, 68 S.Ct. 316, 92 L.Ed. 309 (1948) (separate opinion of Frankfurter, J.). This does not mean that the decision must be entirely unconstrained. A criminal defendant may be asked, in the interest of orderly procedures, to choose between waiver and another course of action as long as the choice presented to him is not constitutionally offensive. Cf. Illinois v. Allen, 397 U.S. 337, 346, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970); Brady v. United States, 397 U.S. 742, 750-53, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970). The record in this case indicates that, while Maynard did not affirmatively wish to represent himself, when given a clear choice between proceeding with counsel already appointed or going pro se, he elected the latter. Compare Kates v. Nelson, 435 F.2d 1085, 1088 (9th Cir. 1970) with United States ex rel. Higgins v. Fay, 364 F.2d 219, 222 (2d Cir. 1966). His decision was therefore “voluntary” unless that choice placed him in a dilemma of constitutional magnitude. The right to counsel of one’s" }, { "docid": "23586280", "title": "", "text": "to the accused. However, because the test concerns what the accused understood rather than what the court said or understood, explanations are not required. Sec, e.g., Cooley v. United States, 501 F.2d 1249, 1252 (9th Cir. 1974), cert. denied, 419 U.S. 1123, 95 S.Ct. 809, 42 L.Ed.2d 824 (1975). The district court did not explain on the record the risks of self-representation to Kimmel. In the absence of a specific waiver inquiry, we must consult “the particular facts and circumstances surrounding that case, including the background, experience and conduct of the accused.” Id. at 1252. The record reveals that Kimmel was well-educated and literate. He also had been prosecuted several times before and, in at least one case, had represented himself without the assistance of an attorney. While this background information suggests that Kimmel appreciated the risks of self-representation, we need more details to conclude that he sufficiently understood them. For example, it would be helpful to know whether Kimmel was informed about these risks when he represented himself previously. The existing record does not supply these details or other evidence that adequately supports a finding of an intelligent waiver. When the record suggests that there is additional evidence available about the adequacy of a waiver, we may allow the trial court to supplement the record. Rhinehart v. Gunn, 661 F.2d 738, 739-40 (9th Cir. 1981) (concerning a state prisoner’s petition for habeas corpus); Davis v. Morris, 657 F.2d 1104, 1106 (9th Cir. 1981) (same). In United States v. Tompkins, 623 F.2d 824, 828-29 (2d Cir. 1980), the Second Circuit Court of Appeals instructed a federal district court to supplement the record, explaining: Although the record does not convince us that Tompkins unequivocally waived his right to counsel, we are reluctant to reverse. At oral argument, the Government raised an important question concerning Tompki'n’s past experience in representing himself in criminal proceedings. Since that information may shed new light on Tompkin’s behavior during the instant prosecution, we remand this case to the district court for the limited purpose of determining whether Tompkins unequivocally elected to waive his right to counsel," }, { "docid": "5011777", "title": "", "text": "317 U.S. 269, 279, 63 S.Ct. 236, 241, 87 L.Ed. 268 (1972)). However, the record does establish that Cannon did understand at least the seriousness of the charges against him, since he did state that he understood that if he were convicted of second degree murder he could be sentenced to fifteen years to life. (Tr. 5). Moreover, the judge did give Cannon the requisite warnings and advice concerning the wisdom of representing himself. Although nowhere in the record did Cannon state that he understood these warnings, neither does the record establish that he did not. Finally, any attempt to establish more about Cannon’s background was rendered futile by Cannon’s refusal to respond to the questions put to him. As the Second Circuit has stated, “the state judge was ‘painfully familiar with [the defendant’s] lack of cooperation and responsiveness and may have considered it futile to make Harrison [United States v. Harrison, 451 F.2d 1013 (2 Cir. 1971)] inquiries.’ Had [the judge] refused to allow [the defendant] to represent himself, there would doubtless have been a claim of error, persuasively fortified by the Supreme Court’s recent decision in Faretta v. California [supra] raising to a constitutional level the right to appear pro se. A criminal trial is not an obstacle course for the judge.” United States ex rel. Konigsberg v. Vincent, 526 F.2d 131, 134 (2d Cir. 1975), cert. denied, 426 U.S. 937, 96 S.Ct. 2652, 49 L.Ed.2d 388 (1976); see United States v. Tompkins, 623 F.2d 824, 828 (2d Cir. 1980); United States v. Rosenthal, 470 F.2d 837, 844-45 (2d Cir. 1972), cert. denied, 412 U.S. 909, 93 S.Ct. 2298, 36 L.Ed.2d 975 (1973). We conclude that the record is sufficient to establish not only that Cannon’s waiver was voluntary, but that it was made with “his eyes open” and that the trial court had no choice but to defer to Cannon’s wish to represent himself. Moreover, Cannon was not left exposed and helpless. He was assisted by court appointed standby counsel who is not claimed to have been incompetent or to have failed in his responsibility. We think" }, { "docid": "23222207", "title": "", "text": "that: The crucial allegation of the second motion was that petitioner’s alleged mental incompetency was the result of administration of narcotic drugs during the period petitioner was held in the Sacramento County Jail pending trial in the instant case. However regular the proceedings at which he signed a waiver of indictment, declined assistance of counsel, and pleaded guilty might appear from the transcript, it still might be the case that petitioner did not make an intelligent and understanding waiver of his constitutional rights. See Machibroda v. United States, 368 U.S.. 487, 82 S.Ct. 510, 7 L.Ed.2d 473; Moore v. State of Michigan, 355 U.S. 155, 78 S.Ct. 191, 2 L.Ed. 2d 167; Commonwealth of Pennsylvania ex rel. Herman v. Claudy, 350 U.S. 116, 76 S.Ct. 223, 100 L.Ed. 126; Taylor v. United States, 193 F.2d 411 (C.A. 10th Cir., 1952). Cf. Von Moltke v. Gillies, 332 U.S. 708, 68 S.Ct. 316, 92 L.Ed. 309. For the facts on which petitioner’s claim in his second application is predicated are outside the record. * * * That the judge may have thought that he acted with intelligence and understanding in responding to the judge’s inquiries cannot ‘conclusively show,’ as the statute requires, that there is no merit in his present claim. Cf. Machibroda v. United States, supra, 368 U.S. at 495, 82 S.Ct. at 514, 7 L.Ed.2d 473 (373 U.S. at 19-20, 83 S.Ct. at 1079, emphasis ours). The double citation to Machibroda v. United States, 368 U.S. 487, 82 S.Ct. 510 (1961), directed attention to the established rule that findings of fact on matters placed in issue by the allegations of a petitioner’s motion can not be made without a full evidentiary hearing unless all the material facts can be conclusively established by the files and records in the case. In that case the petitioner was serving a twenty-five year bank robbery sentence imposed on a plea of guilty in 1956. In 1959 he filed a Section 2255 motion alleging that his guilty plea was not voluntary because it had been “induced by promises made by the Assistant United States Attorney" }, { "docid": "22345494", "title": "", "text": "45, 53 S.Ct. 55, 77 L.Ed. 158 (1932), it may nonetheless be waived. The Bill of Rights is a catalogue of limitations on government, ensuring that certain inalienable rights are not to be infringed by the sovereign. But the prohibitions of the first ten constitutional amendments, while designed for the protection of individuals, were not intended as mandatory proscriptions on them. Individuals are free to waive the constitutional protections otherwise afforded them, regardless of their motivation, so long as the waiver is voluntary, knowing and intelligent. To be sure, federal courts should refrain from casually finding waiver of vital federal constitutional guarantees, such as the right to counsel, Cf. Moore v. Michigan, 355 U.S. 155, 78 S.Ct. 191, 2 L.Ed.2d 167; Johnson v. Zerbst, supra, but the government’s suggestion on appeal that it is impossible as a matter of law to waive the Sixth Amendment right to effective assistance of counsel in circumstances involving serious conflicts of interest is novel and unfounded. If defendants may dispense with the right to be represented by counsel altogether, Faretta v. California, - U.S. -, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975); McKenna v. Ellis, 263 F.2d 35 (5th Cir. 1959), it would seem that they may waive the right to have their retained counsel free from conflicts of interest. Our conclusion that defendants may waive the right to conflict-free assistance of counsel abrogates the need on this pre-trial appeal to evaluate the actual or potential ineffectiveness of counsel occasioned by alleged conflicts of interest. Rather we remand to the district court to determine whether the defendants competently and intentionally waive their Sixth Amendment protections. It is appropriate that the district court make this determination since voluntariness must depend on the particular facts and circumstances of each case. Because of the unchallenged importance of the need for adequate representation during criminal proceedings, we direct the district court to scrupulously evaluate the insistence of the defendants on the right to privately retained counsel of their choice even though the district court may discern a conflict of interest in such representation. In addition, that court must" }, { "docid": "22862565", "title": "", "text": "rule which has evolved is that when a convicted defendant who was indigent at the time of his conviction collaterally attacks the conviction on right-to-counsel grounds, and the record shows that he was not represented by counsel or is silent regarding representation of counsel, then the party which defends the conviction has the burden of proving that the defendant was represented by counsel or that he waived his right to counsel. Id. at 296. See also United States v. Radowitz, 507 F.2d 109, 112-13 (3d Cir. 1974). However, where the record shows that the petitioner was represented by counsel, the burden is on him to impeach the record. Mitchell, 482 F.2d at 296; Wilson v. Wiman, 386 F.2d 968, 969 (6th Cir. 1967), cert. denied, 390 U.S. 1042, 88 S.Ct. 1634, 20 L.Ed.2d 303 (1968). Once it is determined that the petitioner was without counsel, the Government must similarly carry the burden of proving waiver where the record shows no waiver or is silent, since “[presuming waiver from a silent record is impermissible.” Burgett v. Texas, 389 U.S. 109, 114-15, 88 S.Ct. 258, 262, 19 L.Ed.2d 319 (1967); see also United States v. Walker, 526 F.2d 359, 363 (3d Cir. 1975); Crovedi v. United States, 517 F.2d 541, 543 (7th Cir. 1975); Mitchell, 482 F.2d at 296; United States v. Lufman, 457 F.2d 165, 166-67 n.2 (7th Cir. 1972). As with the question of representation, however, the petitioner bears the burden of proving that his waiver was not knowingly and intelligently made where the record shows that the trial judge offered and the petitioner declined counsel. Carnley v. Cochran, 369 U.S. 506, 513, 82 S.Ct. 884, 8 L.Ed.2d 70 (1962); Moore v. Michigan, 355 U.S. 155, 160-62, 78 S.Ct. 191, 2 L.Ed.2d 167 (1957); Johnson v. Zerbst, 304 U.S. 458, 468-69, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). Finally, following Johnson v. Zerbst, the proof of each factor that must be established at a § 2255 evidentiary hearing into the validity of the petitioner’s prior convictions must satisfy the preponderaneeof-the-evidence standard. That case established this standard as applicable to right-to-counsel" }, { "docid": "23054223", "title": "", "text": "(state sentencing judge mistakenly believed he was dealing with a three-time offender, although records showed only one conviction; counsel stood mute; discharges before a magistrate should have no place in determining sentence; federal habeas corpus proper). V. BURDEN OF PROOF Under the circumstances of this case, the parties are directed to prepare for a full evidentiary hearing at the earliest possible date they can be ready. See United States ex rel. Maselli v. Reincke, 383 F.2d 129 (2d Cir. 1967); Townsend v. Sain, 372 U.S. 293, 314-316, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963). In challenges to both federal and state sentences, the Court of Appeals in this circuit has ruled that the burden of establishing the invalidity of the plea is on defendant. United States v. Lester, 247 F.2d 496, 500 (2d Cir. 1957) (federal sentence); United States ex rel. Wissenfeld v. Wilkins, 281 F.2d 707, 713 (2d Cir. 1960) (state sentence). But cf. Munich v. United States, 337 F.2d 356, 360 (9th Cir. 1964) (where Rule 11 was not complied with because court did not conduct inquiry burden is upon government to prove voluntary nature of plea). In collateral attacks based upon the Constitution, the weight of the burden is a preponderance — i. e., more probable than not. Johnson v. Zerbst, 304 U.S. 458, 468, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938) (burden on petitioner to prove by “a preponderance of the evidence” that he neither had counsel nor waived his right to counsel); Moore v. State of Michigan, 355 U.S. 155, 162, 163-164, 78 S.Ct. 191, 2 L.Ed.2d 167 (1957) (same; state conviction). The 1966 amendments to section 2254 of title 28 of the United States Code may have reversed the burden of proof. While the statute is awkwardly constructed, reasonably parsed it seems to say that, where the merits of a factual dispute were not resolved in the state post-conviction hearings — the case here —the burden of proving a constitutionally valid plea rests upon the state. The statute, insofar as applicable, reads as follows: “§ 2254. State custody; remedies in Federal courts ****** (d)" }, { "docid": "22584087", "title": "", "text": "presume a waiver of the right to have counsel from an act which can only be intelligently exercised with the aid of counsel.” 31 U.Chi.L.Rev. 591, 601 (1964). It is not unambiguously clear from the June 16 and June 28 notes that appellant was advised in the Superior Court that he had the right to assigned counsel. Even if the recitals in these notes are read in favor of the State’s contentions, and the events described are given their maximum effect, they may have come too late if appellant’s allegations with respect to the two prior hearings are borne out by the evidence. Finally, none of the records refute appellant’s averments that because of illiteracy, youth, and inexperience he had no understanding of his rights or of the meaning and consequences of a waiver of counsel. “Notwithstanding the petitioner’s express disavowal, before his plea, of a desire for counsel,” he is entitled to the opportunity to prove allegations of fact outside the state court record which might demonstrate “that the disavowal was not intelligently and understandingly made and hence was not a waiver.” Moore v. Michigan, 355 U.S. 155, 162, 78 S.Ct. 191, 195 (1957). III The State also argues that the appeal must be dismissed because the district court, although granting appellant’s motion for leave to proceed in forma pauperis, did not issue the certificate of probable cause required by 28 U.S.C.A. § 2253. The statute permits a circuit judge to issue the required certificate, and its issuance is hereby ordered. Reversed and remanded for proceedings not inconsistent with this opinion. . The Supreme Court has said that an order to show cause may be discharged and the petition for habeas corpus may be dismissed without a hearing if the factual allegations .are “patently frivolous or false on a consideration of the whole record * * *” (Commonwealth of Pennsylvania ex rel. Herman v. Claudy, 350 U.S. 116, 118-119, 76 S.Ct. 223, 225, 100 L.Ed. 126 (1956); see also United States v. La Vallee, 319 F.2d 308, 312 (2d Cir. 1963)), but “the Government’s contention that [petitioner’s] allegations are" }, { "docid": "22584093", "title": "", "text": "the California, legislature had repealed the statutory provision for the appointment of counsel, limiting the accused to the right to consult retained counsel. . Rice v. Olson, 324 U.S. 786, 788, 65 S.Ct. 989, 89 L.Ed. 1367 (1945). See also Moore v. Michigan, 355 U.S. 155, 78 S.Ct. 191, 2 L.Ed.2d 167 (1957); Sanders v. United States, 373 U.S. 1, 19, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963); and cases cited note 8. . Authorities are collected in Sanders v. United States, 373 U.S. 1, 19-20, 83 S.Ct. 1068, (1963), where the court said: “However regular the proceedings at which he signed a waiver of indictment, declined assistance of counsel, and pleaded guilty might appear from the transcript, it still might be the case that petitioner did not make an intelligent and understanding waiver of his constitutional rights. See Machibroda v. United States, 368 U.S. 487, 82 S.Ct. 510; Moore v. Michigan, 355 U.S. 155, 78 S.Ct. 191; Commonwealth of Pennsylvania ex rel. Herman v. Claudy, 350 U.S. 116, 76 S.Ct. 223; Taylor v. United States, 193 F.2d 411 (C.A.10th Cir. 1952). Cf. Von Moltke v. Gilles, 332 U.S. 708, 68 S.Ct. 316, 92 L.Ed. 309. Eor the facts on which petitioner’s claim in this second application is predicated are outside the record.” HAMLIN, Circuit Judge (dissenting). I respectfully dissent. The record of the Superior Court of the State of California concerning which the majority opinion states “We do not understand appellant to challenge the factual recitals in the state court records”, establishes that on June 16, 1954, in the Superior Court of the State of California in and for the County of Trinity, appellant was informed by the judge of his right to counsel at all stages of the proceedings against him, that he waived that right and expressed a desire to proceed at that time. He then entered a plea of guilty. The record also shows that on June 28, 1954, in the same court when the matter came on for further hearing that the court took testimony and fixed the degree of burglary at second degree and" }, { "docid": "22873284", "title": "", "text": "Thus, although the record reveals that Maynard knew of his right to appointed counsel, and that he affirmatively acquiesced in the procedure at trial, compare Carnley v. Cochran, 369 U.S. 506, 513-17, 82 S.Ct. 884, 8 L.Ed.2d 70 (1962), the question remains whether this acquiescence was competent, intelligent and voluntary. See Johnson v. Zerbst, supra, 304 U.S. at 465, 58 S.Ct. 1019; Moore v. Michigan, 355 U.S. 155, 164, 78 S.Ct. 191, 2 L.Ed.2d 167 (1957). We do not believe, however, that the absence of explicit bench warnings or a colloquy on the record compelled the district court’s conclusion that Maynard’s waiver of counsel was ineffective. The fact of waiver, “ordinarily an intentional relinquishment or abandonment of a known right”, Johnson v. Zerbst, supra, 304 U.S. at 464, 58 S.Ct. at 1023, may not be presumed or inferred from a silent record. Carnley v. Cochran, supra, 369 U.S. at 516, 82 S.Ct. 884. But where, as here, the record shows the petitioner’s “affirmative acquiescence” in the arrangements at trial, the burden falls on him to show that his “acquiescence was not sufficiently understanding and intelligent to amount to an effective waiver.” Id. at 516-17, 82 S.Ct. at 890. See Spanbauer v. Burke, 374 F.2d 67, 74 (7th Cir. 1966); Bortmess v. Rodriquez, 375 F.2d 113, 114 (10th Cir. 1967). Moreover, while the Supreme Court has observed that “it would be fitting and appropriate” for the trial court to determine the effectiveness of a waiver on the record, Johnson v. Zerbst, supra, 304 U.S. at 465, 58 S.Ct. at 1023, it also cautioned that “[w]hen collaterally attacked, the judgment of a court carries with it a presumption of regularity. Where a defendant, without counsel, acquiesces in a trial resulting in his conviction and later seeks release by the extraordinary remedy of habeas corpus, the burden of proof rests upon him to establish that he did not competently and intelligently waive his constitutional right to assistance of counsel.” 304 U.S. at 468-69, 58 S.Ct. at 1025. [Italics original, footnotes omitted.] See also Moore v. Michigan, supra. While record inquiry would facilitate the" }, { "docid": "22987315", "title": "", "text": "beginning in 1970. In Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970), petitioner pleaded guilty to a kidnapping charge to avoid the death penalty. After his conviction, he argued “that it violates the Fifth Amendment to influence or encourage a guilty plea by opportunity or promise of leniency and that a guilty plea is coerced and invalid if influenced by the fear of a possibly higher penalty for the crime charged if a conviction is obtained after the State is put to its proof.” 397 U.S. at 750-51, 90 S.Ct. at 1469-70. The Court found Brady’s argument unpersuasive. We decline to hold .. . that a guilty plea is compelled and invalid under the Fifth Amendment whenever motivated by the defendant’s desire to accept the certainty or probability of a lesser penalty rather than face a wider range of possibilities extending from acquittal to conviction and a higher penalty authorized by law for the crime charged. Id. at 751, 90 S.Ct. at 1470; accord, Parker v. North Carolina, 397 U.S. 790, 90 S.Ct. 1458, 25 L.Ed.2d 785 (1970). One year after Brady, the Court, in Santobelio v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971), set forth some of the guidelines for fair plea bargaining. The defendant in that case, charged with gambling violations under state law, pleaded guilty after negotiations with the prosecutor, who agreed to make no sentence recommendation. Finding that the prosecutor had failed to uphold his part of the bargain, the Court noted the need for fairness in securing agreement between an accused and a prosecutor. It is now clear, for example, that the accused pleading guilty must be counseled, absent a waiver. Moore v. Michigan, 355 U.S. 155 [78 S.Ct. 191, 2 L.Ed.2d 167] (1957). Fed.Rule Crim.Proc. 11, governing pleas in federal courts, now makes clear that the sentencing judge must develop, on the record, the factual basis for the plea, as, for example, by having the accused describe the conduct that gave rise to the charge. The plea must, of course, be voluntary and" }, { "docid": "11209745", "title": "", "text": "them and without a clear and voluntary intention to waive them. Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461; Glasser v. United States, 315 U.S. 60, 70, 62 S.Ct. 457, 86 L.Ed. 680, reh. den. Kretske v. United States, 315 U.S. 827, 62 S.Ct. 629, 86 L.Ed. 1222; Aetna Insurance Co. v. Kennedy, 301 U.S. 389, 57 S.Ct. 809, 81 L.Ed. 1177; Ohio Bell Telephone Co. v. Public Utilities Commission, 301 U.S. 292, 57 S.Ct. 724, 81 L.Ed. 1093; Moore v. State of Michigan, 355 U.S. 155, 78 S.Ct. 191, 2 L.Ed.2d 167; Wood v. United States, 75 U.S.App.D.C. 274, 128 F.2d 265, 277. It is not necessary to decide in this proceeding whether the mere failure to make an objection would constitute a waiver of a constitutional right. An examination of excerpts from the transcript of the record of the trial submitted to the District Court by stipulation of counsel, discloses that an objection was made to the introduction of the alleged confession. Bob Cooley, Sheriff of Monroe County, was asked if Dupes, the appellee, had made a confession. The sheriff answered that he had. He was then asked if Dupes repeated this statement in the presence of his co-defendant Kirkland. When he answered that he had so repeated it, he was asked to state what the appellee Dupes said in the presence of Kirkland. Mr. Kennard, attorney for Dupes, objected on behalf of both Dupes and Kirkland on the grounds that such confession was inadmissible under both state and federal constitutions. The trial judge in criminal court conducted a hearing in the absence of the jury. At the conclusion of the hearing he denied the objection and entered exceptions for both parties. The trial judge then recalled the jury and permitted the sheriff to testify to the alleged confessions and statements of Dupes. The question of the admissibility of this testimony was raised on motion for new trial and also on direct appeal. Under these circumstances we cannot say there was a waiver to the introduction of this testimony by reason of a" }, { "docid": "22873283", "title": "", "text": "a constitutional right should be different from the standard for waiver of the entire right. Respondent argues, and we agree, that it is within the discretion of a trial court to allow the sort of hybrid arrangement that was adopted in this case, see, e. g., United States v. Hill, 526 F.2d 1019 (10th Cir. 1975); United States v. Guanti, 421 F.2d 792 (2d Cir. 1970). But it does not follow that such an arrangement is the equivalent of full representation by counsel for purposes of waiver: it was apparently not suggested in any of the cases cited by respondent that the defendant’s agreement to the arrangement was not knowing and intelligent. On respondent’s analysis, the right to counsel is satisfied, regardless of the reality of self-representation, so long as counsel is not formally allowed to withdraw and remains in the courtroom. We do not believe that the protections of this right that have evolved from Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938), can be so casually swept away. Thus, although the record reveals that Maynard knew of his right to appointed counsel, and that he affirmatively acquiesced in the procedure at trial, compare Carnley v. Cochran, 369 U.S. 506, 513-17, 82 S.Ct. 884, 8 L.Ed.2d 70 (1962), the question remains whether this acquiescence was competent, intelligent and voluntary. See Johnson v. Zerbst, supra, 304 U.S. at 465, 58 S.Ct. 1019; Moore v. Michigan, 355 U.S. 155, 164, 78 S.Ct. 191, 2 L.Ed.2d 167 (1957). We do not believe, however, that the absence of explicit bench warnings or a colloquy on the record compelled the district court’s conclusion that Maynard’s waiver of counsel was ineffective. The fact of waiver, “ordinarily an intentional relinquishment or abandonment of a known right”, Johnson v. Zerbst, supra, 304 U.S. at 464, 58 S.Ct. at 1023, may not be presumed or inferred from a silent record. Carnley v. Cochran, supra, 369 U.S. at 516, 82 S.Ct. 884. But where, as here, the record shows the petitioner’s “affirmative acquiescence” in the arrangements at trial, the burden falls on him to" } ]

[ { "docid": "4932672", "title": "", "text": "the same” using “slightly different language” and a final judgment has been issued with respect to one patent, issue preclusion may apply to the second, similar patent. Ohio Willow Wood Co., 735 F.3d at 1342-43. To defeat the application of collateral estoppel, a party must show that the patents are different in a “patent-ably significant” way. Id. at 1343. b. Application According to defendant, issue preclusion applies because in Accentra Inc. and WorkTools, Inc. v. Staples, Inc., et al., No. 07-5862, 2013 WL 12113238 (C.D. Cal. June 6, 2013) [hereinafter “the Accentra case”], the United States District Court for the Central District of California determined that claims 24 and 25 of the ’709 patent were obvious and thus invalid pursuant to 35 U.S.C. § 103(a) because of two prior art staplers. Defendant contends that, because the language of the asserted claims of the ’589 patent is substantially similar to the language in the invalid, claims of the ’709 patent, collateral estop-pel applies. ’ Plaintiffs respond that the claims of the ’589 patent are substantially different than those litigated in the Accen-tra case because the ’709 patent refers to handle motion in relation to the base of a stapler while the asserted claims of the ’589 patent refer to handle motion in relation to the body of a stapler. Plaintiffs proffer that, ’ because the ’589 patent involves a stapler in which the handle pivots around the body, the stapler has better leverage than prior art staplers. In support of that contention, plaintiffs offer, the declaration of Joel Marks, the inventor of the ’709 and ’589 patents. Viewing the record in the light most favorable to plaintiffs and construing reasonable inferences in their favor, this Court agrees that there is a material difference between the previously litigated ’709 patent claims and the asserted claims of the ’589 patent. Increased leverage because of the connection between the handle and the body is distinct from the connection between the handle and the base. Thus, because plaintiffs have identified a “patentably significant” difference, defendant’s motion for summary judgment based upon collateral estoppel will be" } ]

[ { "docid": "19494098", "title": "", "text": "those components have distinct meanings without requiring that the components represent separate structures. Applied Med. Resources Corp. v. U.S. Surgical Corp., 448 F.3d 1324, 1333 n.3 (Fed. Cir. 2006) (making clear that the use of two terms in a claim merely \"requires that they connote different meanings, not that they necessarily refer to two different structures\" (emphasis in original)). Here, the specification and figures support a reading of the claims that makes clear that the body can be connected to and operable with the base and the handle and need not be physically detached. The plain language of the claims include no \"separate structures\" limitation. Defendant's reliance on judicial estoppel is unavailing here. As defendant notes, the Federal Circuit has held that \"the same claim term in the same patent or related patents carries the same construed meaning\". Omega Engineering, Inc. v. Raytek Corp., 334 F.3d 1314, 1334 (Fed. Cir. 2003). As this Court ruled in its summary judgment order, however, there is a material difference between the previously litigated '709 patent claims and the asserted claims of the '589 patent. Amax, Inc. v. Acco Brands Corp., No. 16-10695, 268 F.Supp.3d 301, 2017 WL 3399995 (D. Mass. Aug. 8, 2017). Furthermore, the district court in the Accentra case did not construe the terms \"handle\", \"base\" or \"body\" in its claim construction order. See Accentra, Inc. v. Staples, Inc., No. 07-05862, 2008 WL 5787777 (C.D. Cal. Dec. 23, 2008). Accordingly, the Court will decline to import the negative limitation of \"separate\" into each asserted claim. The plain language of the claims does not require a construction of three separate structures for the body, base and handle. Instead, the Court will construe the three terms to comport with their ordinary meanings and will adopt the plaintiffs' proposed constructions. 2. \"a channel of the body\" (Claim 1 of the '589 patent ) Here, the parties dispute the phrase \"a channel of the body\" which appears in claim 1. Claim 1 describes \"a striker moving within a channel of the body\". Defendant adds the additional wording \"partially enclosed passage\" to describe the \"U\"-shaped passage" }, { "docid": "19494106", "title": "", "text": "and \"body,\" the Court declines to import the separate structures limitation here. See Powell, 663 F.3d at 1231. The inclusion of the three-point description constitutes unnecessary verbiage. The claim language here makes the construction of \"lever\" clear because the lever is described as \"pivot[ing] within the body to link the power spring\". The description of the pivot obviates the need for the three point limitation proposed by defendant. Accordingly, the meaning of the word \"lever\" is clear and the description of the three pivot points is unnecessary. Phillips, 415 F.3d at 1314. No further construction is needed. 7. \"a desktop stapler to be gripped by a user's fingers\" (Claim 2 of the '589 patent ); \"wherein a user's hand normally operates the stapler by lifting the stapler off of a resting surface and squeezing the stapler between the handle and an underside of the base\" (Claim 10 of the '589 patent ); \"wherein a user's hand normally operates the stapler by lifting the stapler off a resting surface and squeezing the stapler between the handle at the pressing area and an underside of the base\" As to each of the three terms at issue here, defendant proposes to limit the term by including the language \"excludes staplers with a flat base\". Plaintiffs reply that the Court should not import that negative construction because, with respect to the first term, it appears only in the preamble, and with respect to the second and third, they appear only in dependent claims 10 and 19, respectively. Defendant avers that the prosecution history supports its reading of the terms because the applicant distinguished prior art, the Perez stapler, by describing \"[t]he flat base of Perez\". Although evidence from prosecution history is often relevant to \"shed useful light on the relevant art,\" the Federal Circuit has emphasized that it is less significant than the intrinsic record in determining the legally operative meaning of claim language. Phillips, 415 F.3d at 1317 (internal citation omitted). Furthermore, a disclaimer from the prosecution history does not attach unless the alleged disavowal is \"clear and unmistakable\". Omega Engineering, 334 F.3d" }, { "docid": "21637207", "title": "", "text": "the solution dispersing the solid particles of cyclosporin to no longer be a \"solution,” as the dissent suggests here. Indeed, the patentee’s brief informs us that \"[t]here is no dispute that in-jectable solutions [including the cyclosporin] are one particular embodiment of the claimed invention.” (Pls.-Appellants Br. at 11 (emphasis added).) Thus, contrary to the dissent's view, the narrower definition of solution is entirely consistent with the claim language. . In addition, the specification teaches that the water portion of the hydrosol may be removed leaving the cyclosporin particles in a dry form that \"is a starting material for preparation of pharmaceutical compositions,” which after being \"redispersed with distilled water ... may be intravenously administra-ble.” '382 patent, col. 6, ll. 50-60. . Cf. Omega Eng’g, Inc. v. Raytek Corp., 334 F.3d 1314, 1324 (Fed.Cir.2003) (\"[W]here the patentee has unequivocally disavowed a certain meaning to obtain his patent, the doctrine of prosecution disclaimer attaches and narrows the ordinary meaning of the claim congruent with the scope of the surrender.”); SciMed Life Sys., Inc. v. Advanced Cardiovascular Sys., Inc., 242 F.3d 1337, 1344 (Fed.Cir.2001) (construing the claims to include a \"coaxial” limitation, despite their ordinary meaning, because \"portions of the ... specification lead to the inescapable conclusion that the references ... to an inflation lumen separate from the guide wire lumen must be understood as referring to coaxial lumens”); see also Liebel-Flarsheim Co. v. Medrad, Inc., 358 F.3d 898, 906-08 (Fed.Cir.2004) (discussing the appropriateness of limiting unambiguous claim language based on the intrinsic record). . In light of our decision that there is no infringement because the claims are limited to medicinal preparations prepared outside the body, we need not reach other aspects of the district court’s construction of “hydro-sol.” Nor do we address the parties’ arguments related to other claim terms construed by the district court. CLEVENGER, Circuit Judge, dissenting. At trial, the parties disputed the meaning of “hydrosol” as it appears in the '382 patent. Novartis argued that the term should have its accepted normal meaning, i.e., solid particles dispersed in any aqueous medium. Eon did not disagree with this meaning" }, { "docid": "19494093", "title": "", "text": "that stays true to the claim language and most naturally aligns with the patent's description of the invention. Phillips, 415 F.3d at 1316 (quoting Renishaw PLC v. Marposs Societa' Per Azioni, 158 F.3d 1243, 1250 (Fed. Cir. 1998) ). The patent specification is \"the single best guide to the meaning of a disputed term\" because it may reveal a special definition given to a claim term ... that differs from the meaning it would otherwise possess ... [such as] an intentional disclaimer, or disavowal, of claim scope by the inventor. Id. at 1316, 1321. The Court should also consult the prosecution history to see how the inventor and PTO understood the patent and to ensure the patentee does not argue in favor of an interpretation it has disclaimed. Id. at 1317. In the rare event that analysis of the intrinsic evidence does not resolve an ambiguity in a disputed claim term, the Court may turn to extrinsic evidence, such as inventor and expert testimony, treatises and technical writings. Id. at 1317. Although extrinsic evidence may be helpful in construing claims, the intrinsic evidence is afforded the greatest weight in determining what a person of ordinary skill would have understood a claim to mean. V-Formation, Inc. v. Benetton Grp. SpA, 401 F.3d 1307, 1310-11 (Fed. Cir. 2005). B. The '589 and '709 Patents i. The Technology The '709 patent issued in February, 2007. The '589 patent is a continuation of the '709 patent and issued in July, 2010. The patents relate to spring-enabled desktop staplers. The spring present in the stapler is linked to a striker and, when the striker is raised and released, the stored energy of the spring drives the staple through a \"stack of papers\". When compared with a conventional desktop stapler, the spring-enabled desktop stapler has a lower operating force which makes it easier to use with an extended hand on a desk. ii. Disputed Claim Terms 1. \"a body\" (All Claims); \"a base\" (All Claims); \"a handle\" (All Claims) Defendant contends that the terms \"body,\" \"base\" and \"handle\" should be construed as structures separate from both" }, { "docid": "19494112", "title": "", "text": "(reviewing a district court's decision on indefiniteness at the summary judgment stage). The standard for establishing indefiniteness is higher than the burden a party must carry to determine a term's construction. The Federal Circuit has emphasized that it ha[s] certainly not endorsed a regime in which validity analysis is a regular component of claim construction. Phillips, 415 F.3d at 1327 (declining to construe a term restrictively for the purpose of sustaining its validity) (citing Nazomi Commc'ns, Inc. v. ARM Holdings, PLC, 403 F.3d 1364, 1369 (Fed. Cir. 2005) ). Courts also decline to consider indefiniteness at this stage because that determination is likely to be dispositive. Courts have recognized that unlike a Markman proceeding that gives meaning to patent claims, indefiniteness invalidates the claims entirely. As such, this dispositive effect is more appropriately tackled at summary judgment... CSB-Syst. Int'l, 2011 WL 3240838, at *18 (citing numerous instances in which courts elected to defer indefiniteness until summary judgment). Because the determination is likely to be determinative, many courts have declined to address indefiniteness arguments at the claim construction stage. Koninklijke Philips Electronics N.V. v. Zoll Med. Corp., 914 F.Supp.2d 89, 101 (D. Mass. 2012) ; see also 3-D Matrix, Inc. v. Menicon Co., No. 14-10205, 2016 WL 111410 (D. Mass. Jan. 11, 2016) (deferring the indefiniteness determination at the Markman stage). Here, defendant's contention that all but one asserted claim is invalid as indefinite confirms the dispositive nature of the inquiry and underscores the prudence of deferring that inquiry until a later date. Accordingly, the Court will decline to address the indefiniteness claims here and will resolve that issue at a later point upon a complete record. MARKMAN ORDER In accordance with the foregoing, with respect to United States Patent Nos. 7,178,709 and 7,748,589 : a) \"a body\" means: \"a structure to support and position components of the stapler\"; b) \"a base\" means: \" a structure that supports the stapler\"; c) \"a handle\" means: \" a structure the user presses (or grips) when using the stapler\"; d) \"a channel of the body\" needs no further construction; e) \"bumper\" means: \"structure that" }, { "docid": "22414346", "title": "", "text": "or operation of the claimed structure is filtering, such a function is also evident from the written description, e.g., “[t]here is a significant demand for filtered drinking water ...,” '759 patent, col. 1, 1. 6; “a filter assembly is provided ... capable of effectively treating drinking water to remove chlorine and organic taste contaminants therefrom and reduces a variety of chemical contaminants.” Id., 11. 25-29. Unless otherwise compelled, when different claims of a patent use the same language, we give that language the same effect in each claim. See Omega Eng’g, Inc. v. Raytek Corp., 334 F.3d 1314, 1334 (Fed.Cir.2003). Here, we are not otherwise compelled. “Opera-tively connected” carries the same meaning in both claims. Furthermore, we observe that Safari’s interpretation largely reads the term “operatively” out of the phrase “operatively connected.” While not an absolute rule, all claim terms are presumed to have meaning in a claim. Cf. Pickholtz v. Rainbow Techs., Inc., 284 F.3d 1365, 1373 (Fed.Cir.2002). If, as Safari proposes, the claim refers in the abstract to the creation of a filter assembly structure, without any grounding to an intended use, the term “operatively” is unnecessary and superfluous as the patentee could have as easily used the term “connected” alone. Safari also proposes that the district court’s construction can be supported by the patentee’s use, in claim 15, of “oper-atively connected” and “operatively associated.” The argument is that the paten-tee’s use of the term “connected” to claim the tube-cap relationship stands in such stark contrast to the patentee’s choice of “associated” to define the valve-cap relationship, that the patentee could only have intended that “connected” and “associated” were of different scope. Despite Innova’s assertion to the contrary, when an applicant uses different terms in a claim it is permissible to infer that he intended his choice of different terms to reflect a differentiation in the meaning of those terms. See Bancorp Servs., L.L.C. v. Hartford Life Ins. Co., 359 F.3d 1367,1373 (Fed.Cir.2004); Ethicon Endo-Surgery, Inc. v. U.S. Surgical Corp., 93 F.3d 1572, 1579 (Fed. Cir.1996). For this argument to be dispos-itive of a particular claim construction, however," }, { "docid": "19494096", "title": "", "text": "should adopt the plain and ordinary meaning of the terms \"base\" and \"handle\". Plaintiffs submit that the \"body\" is a multi-part structure that houses components. They contest defendant's constructions which add the limitation \"separate\" to each component and maintain that there is nothing in the intrinsic evidence requiring separateness of each component. Plaintiffs also reject ACCO's contention that they are estopped from presenting their proposed constructions because they were not a party to the Accentra case and that litigation did not involve the '589 patent. Defendant rejoins that because the Accentra case involved the '709 patent which is a continuation of the '589 patent, estoppel applies in this case. The claim language does not, as defendant contends, require a reading that the connected components are distinct from one another. Defendant's proposed construction imports the limitation \"separate\" to the terms. The ordinary meaning of \"separate,\" however, suggests components that are [p]arted, divided, or withdrawn from others; disjoined, disconnected, detached, set or kept apart. Electro Scientific Indus. v. Dynamic Details, Inc., 307 F.3d 1343 (Fed. Cir. 2002). Contrary to defendant's suggestion, the base, for example, need not be \"separate\" from the body in order to be \"pivotably attached to the body\" as is required in claim 1. See Powell v. Home Depot U.S.A., Inc., 663 F.3d 1221, 1231 (Fed. Cir. 2011) (rejecting defendant's contention that where a claim lists components separately, the elements must be physically divided). Similarly, the handle need not be \"separate\" from the body in order to be \"hinged to the body\". Defendant relies on Becton, Dickinson & Co. v. Tyco Healthcare Grp., LP, 616 F.3d 1249 (Fed. Cir. 2010) in its contention that separately listed claim elements must be constructed as distinct, separate components. In Becton, however, the claim language did not \"suggest that the hinged arm and the spring [could] be the same structure\". Powell, 663 F.3d at 1231. (citing Becton, 616 F.3d at 1254 (Fed. Cir. 2010) ). The claim language at issue here does not indicate that the three components must be physically separate. The use of two terms within a claim can indicate that" }, { "docid": "19494101", "title": "", "text": "bumper that provides a stop for the power spring\". Defendant's construction would import a dictionary meaning that focuses on the abstract meaning of words rather than on the meaning of claim terms within the context of the entire patent. Phillips, 415 F.3d at 1321 (Fed. Cir. 2005). The Federal Circuit has cautioned district courts to avoid \"heavy reliance\" on dictionary definitions because they can often transform the language of the claim. Id. Plaintiffs' construction more accurately reflects the claim language. 4. \"a handle rest position\" (Claims 1, 2, 7, 16 and 18 of the '589 patent ) The parties dispute whether \"a handle rest position\" most accurately describes the handle in relation to the body or the base. Plaintiffs maintain that the claim language refers to the handle rest position relative to the body and contest defendant's attempt to add the additional limitation of \"handle pressing area\" that is not found in claims 1 or 2. Defendant counters that the body and base are both below the handle and disputes plaintiffs' contention that \"handle pressing area\" is an added term because the handle is defined as \"having a pressing area near a front end thereof\". Defendant also contends that plaintiffs are judicially estopped from proposing their construction because of a construction adopted by the district court in the Accentra case. As already noted, however, the plaintiffs in the Accentra case did not assert claims from the '589 patent and asserted different claims from the '709 patent than those asserted here. Claims 24 and 27 of the '709 patent, asserted in the Accentra case, refer to the handle rest position in relation to the \"base\" rather than to the \"body\". On the other hand, the claim language in the '589 patent refers to the handle rest position in relation to the \"body\". The plain language of the claims supports plaintiffs' construction. The claims specifically refer to the handle rest position \" where the handle is moved to a position farthest away from the body\" as opposed to the base. Defendant's proposed construction improperly imports a limitation from the specification contrary to" }, { "docid": "19494102", "title": "", "text": "area\" is an added term because the handle is defined as \"having a pressing area near a front end thereof\". Defendant also contends that plaintiffs are judicially estopped from proposing their construction because of a construction adopted by the district court in the Accentra case. As already noted, however, the plaintiffs in the Accentra case did not assert claims from the '589 patent and asserted different claims from the '709 patent than those asserted here. Claims 24 and 27 of the '709 patent, asserted in the Accentra case, refer to the handle rest position in relation to the \"base\" rather than to the \"body\". On the other hand, the claim language in the '589 patent refers to the handle rest position in relation to the \"body\". The plain language of the claims supports plaintiffs' construction. The claims specifically refer to the handle rest position \" where the handle is moved to a position farthest away from the body\" as opposed to the base. Defendant's proposed construction improperly imports a limitation from the specification contrary to the plain language of the claim. Liebel-Flarsheim Co. v. Medrad, Inc., 358 F.3d 898, 913 (Fed. Cir. 2004) (\"[I]t is improper to read limitations from the embodiment described in the specification...\"). Accordingly, the Court will adopt plaintiffs' proposed construction. 5. \"pre-release position\" (Claims 1, 2, 4, 7, 14, 16, 18 and 23 of the '589 patent ) The parties dispute whether the pre-release position must be \"immediately before\" the staple is ejected or \"at the point of being ejected\". They also contest whether the construction should refer to the position of the handle or just the striker. Finally, they disagree about whether the asserted claims include the limitation of the \"staple loading chamber\". Defendant suggests that there is nothing in the claim language that requires the pre-release position to refer to the time \"immediately\" before the power spring ejects. Plaintiffs do not otherwise give support for their contention that the word \"immediately\" is necessary. Their proposed construction of \"immediately before\" thus adds unnecessary language to the subject claim terms. See Harris Corp. v. IXYS Corp.," }, { "docid": "19494094", "title": "", "text": "be helpful in construing claims, the intrinsic evidence is afforded the greatest weight in determining what a person of ordinary skill would have understood a claim to mean. V-Formation, Inc. v. Benetton Grp. SpA, 401 F.3d 1307, 1310-11 (Fed. Cir. 2005). B. The '589 and '709 Patents i. The Technology The '709 patent issued in February, 2007. The '589 patent is a continuation of the '709 patent and issued in July, 2010. The patents relate to spring-enabled desktop staplers. The spring present in the stapler is linked to a striker and, when the striker is raised and released, the stored energy of the spring drives the staple through a \"stack of papers\". When compared with a conventional desktop stapler, the spring-enabled desktop stapler has a lower operating force which makes it easier to use with an extended hand on a desk. ii. Disputed Claim Terms 1. \"a body\" (All Claims); \"a base\" (All Claims); \"a handle\" (All Claims) Defendant contends that the terms \"body,\" \"base\" and \"handle\" should be construed as structures separate from both each other and any other claimed component of the stapler. In support of its contention, defendant avers that the intrinsic evidence shows that 1) the \"body\", \"base\" and \"handle\" are listed as separate elements in every disputed claim, 2) the components must be separate structures so they can connect with each other as is claimed and 3) each visual embodiment shows the three components as separate structures. Furthermore, defendant submits that plaintiffs are estopped from contending that the \"handle\" and \"body\" are anything but separate because of the position adopted by plaintiffs in Accentra, Inc. and WorkTools, Inc. v. Staples, Inc., No. 07-5862, 2013 WL 12113238 (C.D. Cal. June 5, 2013) [hereinafter \"the Accentra case\"]. Although Amax was not a party to that case, WorkTools was a party. Defendant suggests that Amax is also bound by issue preclusion because it acquired the assets of Accentra in 2012, thereby establishing privity with Accentra. Plaintiffs dispute defendant's contention that the three terms should be construed as structures separate from each other. Instead, plaintiffs assert that the Court" }, { "docid": "19494099", "title": "", "text": "asserted claims of the '589 patent. Amax, Inc. v. Acco Brands Corp., No. 16-10695, 268 F.Supp.3d 301, 2017 WL 3399995 (D. Mass. Aug. 8, 2017). Furthermore, the district court in the Accentra case did not construe the terms \"handle\", \"base\" or \"body\" in its claim construction order. See Accentra, Inc. v. Staples, Inc., No. 07-05862, 2008 WL 5787777 (C.D. Cal. Dec. 23, 2008). Accordingly, the Court will decline to import the negative limitation of \"separate\" into each asserted claim. The plain language of the claims does not require a construction of three separate structures for the body, base and handle. Instead, the Court will construe the three terms to comport with their ordinary meanings and will adopt the plaintiffs' proposed constructions. 2. \"a channel of the body\" (Claim 1 of the '589 patent ) Here, the parties dispute the phrase \"a channel of the body\" which appears in claim 1. Claim 1 describes \"a striker moving within a channel of the body\". Defendant adds the additional wording \"partially enclosed passage\" to describe the \"U\"-shaped passage shown in the specification. Plaintiffs contend that the channel is not truly enclosed because the \"U\"-shaped passage leaves at least one side open. Defendant's proposal adds an additional limitation to the claim that is not supported by the claim language or the specification. The Federal Circuit has reiterated that it is not the district court's role in construing claims \"to redefine claim recitations or to read limitations into the claims\" but rather to \"give meaning to limitations actually contained in the claims\". See Am. Piledriving Equip. v. Geoquip, Inc., 637 F.3d 1324 (Fed. Cir. 2011) (emphasis added). Accordingly, the Court concludes that no further construction is needed. 3. \"bumper\" (Claims 6, 13 and 22 of the '589 patent ) Defendant's proposed construction imports the dictionary definition of \"bumper\" which emphasizes its role in \"absorbing shock\". By contrast, plaintiffs' construction tracks the claim language and focuses on \"provid[ing] a stop for the spring. Plaintiffs' construction more accurately reflects the language of the claim terms in the patent. For example, claim 6 describes \"a ceiling and a" }, { "docid": "19494100", "title": "", "text": "shown in the specification. Plaintiffs contend that the channel is not truly enclosed because the \"U\"-shaped passage leaves at least one side open. Defendant's proposal adds an additional limitation to the claim that is not supported by the claim language or the specification. The Federal Circuit has reiterated that it is not the district court's role in construing claims \"to redefine claim recitations or to read limitations into the claims\" but rather to \"give meaning to limitations actually contained in the claims\". See Am. Piledriving Equip. v. Geoquip, Inc., 637 F.3d 1324 (Fed. Cir. 2011) (emphasis added). Accordingly, the Court concludes that no further construction is needed. 3. \"bumper\" (Claims 6, 13 and 22 of the '589 patent ) Defendant's proposed construction imports the dictionary definition of \"bumper\" which emphasizes its role in \"absorbing shock\". By contrast, plaintiffs' construction tracks the claim language and focuses on \"provid[ing] a stop for the spring. Plaintiffs' construction more accurately reflects the language of the claim terms in the patent. For example, claim 6 describes \"a ceiling and a bumper that provides a stop for the power spring\". Defendant's construction would import a dictionary meaning that focuses on the abstract meaning of words rather than on the meaning of claim terms within the context of the entire patent. Phillips, 415 F.3d at 1321 (Fed. Cir. 2005). The Federal Circuit has cautioned district courts to avoid \"heavy reliance\" on dictionary definitions because they can often transform the language of the claim. Id. Plaintiffs' construction more accurately reflects the claim language. 4. \"a handle rest position\" (Claims 1, 2, 7, 16 and 18 of the '589 patent ) The parties dispute whether \"a handle rest position\" most accurately describes the handle in relation to the body or the base. Plaintiffs maintain that the claim language refers to the handle rest position relative to the body and contest defendant's attempt to add the additional limitation of \"handle pressing area\" that is not found in claims 1 or 2. Defendant counters that the body and base are both below the handle and disputes plaintiffs' contention that \"handle pressing" }, { "docid": "5882291", "title": "", "text": "construction. Doing so would contradict the purpose of a Markman hearing because “the role of the district court in construing claims” is not to “read limitations into the claims to obviate factual questions of infringement.” Am. Piledriving Equip. v. Geoquip, Inc., 637 F.3d 1324, 1331 (Fed.Cir.2011). Here, the Court declines to adopt ZOLL’s construction. Instead, the Court adopts the plain meaning of the term and construes it to mean “the step of discharging the energy source.” The Court notes, however, that during prosecution the patentee equated “discharge” with “shock” in describing prior art. That suggests that the “discharge step” was not intended to describe every possible delivery of energy from the energy source. 3.Plurality of electronic switches (Philips’ '212 Patent) Philips requests that the Court adopt the same construction of this term as did the Court in Defibtech II, which limited the term to the “five-switch configuration disclosed in the specification.” Koninklijke Philips Elect. NV v. Defibtech LLC, C03-1322JLR, 2005 WL 3500783, at *4 (W.D.Wash. Dec. 21, 2005) (Defibtech II). Philips asserts that both the patent examiner and the applicants understood a “plurality of electronic switches” to refer to the five-switch circuit in Figure 11. In Defibtech II the court held that although the patentee disavowed the prior art five-switch configuration contained in the Swanson patent, the “inventors did not ... expressly limit the invention to the five-switch configuration that they disclosed in their patent application.” 2005 WL 3500783 at *3. At the Markman hearing in the present case both parties agreed that the statements made during prosecution of the '212 patent do not meet the standard for a “clear and unmistakable” surrender necessary to reject the ordinary meaning. Omega Eng’g, Inc. v. Raytek Corp., 334 F.3d 1314, 1323-26 (Fed.Cir.2003). In Defibtech II the Court relied on extrinsic evidence including an expert declaration and inventor testimony to reach the conclusion that “plurality of switches” could only cover the five switch configuration contained in Figure 11. Neither of those pieces of extrinsic evidence are, however, before this Court which therefore declines to adopt that construction. In Defibtech II, Philips argued contrary" }, { "docid": "19494105", "title": "", "text": "claims of the [patent] into the independent claims\"). Thus, the court declines to import the \"staple loading chamber\" limitation here. Accordingly, for the reasons set forth above, the Court will adopt defendant's construction with the exception that it will not include the terms \"striker\" or \"staple loading chamber\". \" Pre-release position\" is construed as: \"the position of the handle wherein the power spring causes the striker under bias from the power spring to eject a staple\". 6. \"a lever\" (Claims 9 and 18 of the '589 patent ) The parties dispute whether the term \"lever\" is readily understood by a person of ordinary skill in the art of staplers without further construction. Plaintiffs aver that nothing in the claim language suggests that the lever must be physically separate such that the \"separate structure\" language is required. Moreover, plaintiffs contend that the three points described in defendant's construction add additional limitations not found in the claim language. Defendant disputes that the word \"lever\" is readily understood without a construction. Just as with the terms \"handle,\" \"base\" and \"body,\" the Court declines to import the separate structures limitation here. See Powell, 663 F.3d at 1231. The inclusion of the three-point description constitutes unnecessary verbiage. The claim language here makes the construction of \"lever\" clear because the lever is described as \"pivot[ing] within the body to link the power spring\". The description of the pivot obviates the need for the three point limitation proposed by defendant. Accordingly, the meaning of the word \"lever\" is clear and the description of the three pivot points is unnecessary. Phillips, 415 F.3d at 1314. No further construction is needed. 7. \"a desktop stapler to be gripped by a user's fingers\" (Claim 2 of the '589 patent ); \"wherein a user's hand normally operates the stapler by lifting the stapler off of a resting surface and squeezing the stapler between the handle and an underside of the base\" (Claim 10 of the '589 patent ); \"wherein a user's hand normally operates the stapler by lifting the stapler off a resting surface and squeezing the stapler between the handle" }, { "docid": "19494097", "title": "", "text": "Contrary to defendant's suggestion, the base, for example, need not be \"separate\" from the body in order to be \"pivotably attached to the body\" as is required in claim 1. See Powell v. Home Depot U.S.A., Inc., 663 F.3d 1221, 1231 (Fed. Cir. 2011) (rejecting defendant's contention that where a claim lists components separately, the elements must be physically divided). Similarly, the handle need not be \"separate\" from the body in order to be \"hinged to the body\". Defendant relies on Becton, Dickinson & Co. v. Tyco Healthcare Grp., LP, 616 F.3d 1249 (Fed. Cir. 2010) in its contention that separately listed claim elements must be constructed as distinct, separate components. In Becton, however, the claim language did not \"suggest that the hinged arm and the spring [could] be the same structure\". Powell, 663 F.3d at 1231. (citing Becton, 616 F.3d at 1254 (Fed. Cir. 2010) ). The claim language at issue here does not indicate that the three components must be physically separate. The use of two terms within a claim can indicate that those components have distinct meanings without requiring that the components represent separate structures. Applied Med. Resources Corp. v. U.S. Surgical Corp., 448 F.3d 1324, 1333 n.3 (Fed. Cir. 2006) (making clear that the use of two terms in a claim merely \"requires that they connote different meanings, not that they necessarily refer to two different structures\" (emphasis in original)). Here, the specification and figures support a reading of the claims that makes clear that the body can be connected to and operable with the base and the handle and need not be physically detached. The plain language of the claims include no \"separate structures\" limitation. Defendant's reliance on judicial estoppel is unavailing here. As defendant notes, the Federal Circuit has held that \"the same claim term in the same patent or related patents carries the same construed meaning\". Omega Engineering, Inc. v. Raytek Corp., 334 F.3d 1314, 1334 (Fed. Cir. 2003). As this Court ruled in its summary judgment order, however, there is a material difference between the previously litigated '709 patent claims and the" }, { "docid": "21298603", "title": "", "text": "to at least one of the software, the user, and the computer.” In these recitations, the “user” and the “computer” are distinct entities. To construe the term “user” to mean a “computer” would result in the claim being interpreted to recite, for example, “enabling the software on a computer for use by a [computer].” The language of the claims does not reasonably or logically permit such a construction. Likewise, the written description makes clear that the terms “users” and “computers” are distinct and used to describe different things. E.g., '471 patent col.1 ll.48-51 (discussing “users who may have a legitimate need to ... transfer a copy to a new computer”); id. col.7 ll.7-9 (“[T]he user installs ... the software in his computer or computer network.”). Because a construction that would equate a “user” with a “computer or computers” conflicts with “both the plain language of the claims and the teachings of the specification,” Neo-Magic Corp. v. Trident Microsystems, Inc., 287 F.3d 1062, 1070 (Fed.Cir.2002), the district court’s inclusion of “computer or computers” in its claim construction cannot be sustained. Because we agree with Microsoft that the district court erred in construing “user” to include a computer or computers apart from a person, we modify the district court’s claim construction and hold that a “user” is properly construed as “a person or a person using a computer.” This construction applies to all of the asserted claims. See Omega Eng’g, Inc,, v. Raytek Corp., 334 F.3d 1314, 1334 (Fed.Cir.2003) (“[W]e presume, unless otherwise compelled, that the same claim term in the same patent or related patents carries the same construed meaning.”). Notwithstanding our modification of the district court’s claim construction, however, we find Microsoft’s contention that the asserted claims require the authorization of a “particular user, regardless of what particular computer they are using” to be artificial and inconsequential. Although the claims recite “software including instructions to reduce use of the software by unauthorized users,” '471 patent claim 32, and “determining] if the user is an authorized or an unauthorized user,” '825 patent claims 44, 131, both the claims and specification describe" }, { "docid": "19494104", "title": "", "text": "114 F.3d 1149, 1152 (Fed. Cir. 1997) (rejecting construction of a term that \"contribute[d] nothing but meaningless verbiage\"). Moreover, the plain language of the claim contemplates that at the \"pre-release position\", the striker has already been freed. For example, the language in claim 1 denotes that when the striker is at the pre-release position of the handle, \"the striker under bias from the power spring ejects the staple\". The pre-release position is not consistent with a time \"immediately before\" the striker is freed. The defendant's proposed construction, however, improperly conflates the handle position and the striker position. The plain language of the claims refers to the \"handle\" pre-release position and not the \"striker\" pre-release position. Furthermore, the term \"staple loading chamber\" is found in only some dependent claims and not all independent claims. There is a presumption that dependent claim limitations are not automatically included in the independent claims. GE Lighting Sols., LLC v. AgiLight, Inc., 750 F.3d 1304, 1310 (Fed. Cir. 2014) (finding that the district court \"erred by importing limitations from the dependent claims of the [patent] into the independent claims\"). Thus, the court declines to import the \"staple loading chamber\" limitation here. Accordingly, for the reasons set forth above, the Court will adopt defendant's construction with the exception that it will not include the terms \"striker\" or \"staple loading chamber\". \" Pre-release position\" is construed as: \"the position of the handle wherein the power spring causes the striker under bias from the power spring to eject a staple\". 6. \"a lever\" (Claims 9 and 18 of the '589 patent ) The parties dispute whether the term \"lever\" is readily understood by a person of ordinary skill in the art of staplers without further construction. Plaintiffs aver that nothing in the claim language suggests that the lever must be physically separate such that the \"separate structure\" language is required. Moreover, plaintiffs contend that the three points described in defendant's construction add additional limitations not found in the claim language. Defendant disputes that the word \"lever\" is readily understood without a construction. Just as with the terms \"handle,\" \"base\"" }, { "docid": "19494095", "title": "", "text": "each other and any other claimed component of the stapler. In support of its contention, defendant avers that the intrinsic evidence shows that 1) the \"body\", \"base\" and \"handle\" are listed as separate elements in every disputed claim, 2) the components must be separate structures so they can connect with each other as is claimed and 3) each visual embodiment shows the three components as separate structures. Furthermore, defendant submits that plaintiffs are estopped from contending that the \"handle\" and \"body\" are anything but separate because of the position adopted by plaintiffs in Accentra, Inc. and WorkTools, Inc. v. Staples, Inc., No. 07-5862, 2013 WL 12113238 (C.D. Cal. June 5, 2013) [hereinafter \"the Accentra case\"]. Although Amax was not a party to that case, WorkTools was a party. Defendant suggests that Amax is also bound by issue preclusion because it acquired the assets of Accentra in 2012, thereby establishing privity with Accentra. Plaintiffs dispute defendant's contention that the three terms should be construed as structures separate from each other. Instead, plaintiffs assert that the Court should adopt the plain and ordinary meaning of the terms \"base\" and \"handle\". Plaintiffs submit that the \"body\" is a multi-part structure that houses components. They contest defendant's constructions which add the limitation \"separate\" to each component and maintain that there is nothing in the intrinsic evidence requiring separateness of each component. Plaintiffs also reject ACCO's contention that they are estopped from presenting their proposed constructions because they were not a party to the Accentra case and that litigation did not involve the '589 patent. Defendant rejoins that because the Accentra case involved the '709 patent which is a continuation of the '589 patent, estoppel applies in this case. The claim language does not, as defendant contends, require a reading that the connected components are distinct from one another. Defendant's proposed construction imports the limitation \"separate\" to the terms. The ordinary meaning of \"separate,\" however, suggests components that are [p]arted, divided, or withdrawn from others; disjoined, disconnected, detached, set or kept apart. Electro Scientific Indus. v. Dynamic Details, Inc., 307 F.3d 1343 (Fed. Cir. 2002)." }, { "docid": "14445176", "title": "", "text": "container spill proof. Certainly, this claim limitation attempts to describe a structure that has that intended function, and if the court needed to construe an ambiguity in the claim this consideration might carry some weight. Absent any such ambiguity, however, the court sees no reason to import the intended function into a structural limitation. Accordingly, the court construes this aspect of claim element 7(e) to mean said thin membrane being placed over or about the opening in the passageway. F. Claim Element 7(f): “a slit through a planar section of said thin membrane, said slit functioning to provide an opening through said thin membrane when an external negative pressure exists and remain closed when internal and external pressures are equal” Plaintiffs ask the court to construe the language “a slit through a planar section of said thin membrane” as “a slit having edges that provide an opening through the membrane when external suction exists and form an edge-to-edge, in-plane seal when internal and external pressures are equal.” Alternatively, plaintiffs ask the court to construe “planar,” just as they did with respect to claim element 7(a), as “thin in comparison to length and width.” Defendants ask the court to construe “a planar section of said thin membrane” as “a flat section of the thin membrane.” The court begins by focusing on the ordinary meaning of the term “planar.” As discussed previously in Section (B), supra, the term “planar” means having a flat, two-dimensional quality. See Innova/Pure Water, 381 F.3d at 1119 (“Unless otherwise compelled, when different claims of a patent use the same language, we give that language the same effect in each claim.”); Omega Eng’g, Inc. v. Raytek Corp., 334 F.3d 1314, 1334 (Fed.Cir.2003) (“[W]e presume, unless otherwise compelled, that the same claim term in the same patent ... carries the same construed meaning.”). This construction is consistent with the intrinsic evidence. As discussed previously, claim 7, as a whole, reflects that the entire thin membrane structure must have a wall for attaching the thin membrane to an inner surface of the spout, it must cover the opening in the" }, { "docid": "5882299", "title": "", "text": "with testing.” Id. Thus, although “signal associated with testing” applies in the third category, the other two categories require the additional limitation of “a signal that initiates testing.” While generally “the same claim term used in the same patent ‘carries the same construed meaning’ ” this rule applies only if the court is not “otherwise compelled.” Omega Eng’g, Inc. v. Raytek Corp., 334 F.3d 1314, 1334 (Fed.Cir.2003). Here, this Court agrees with the ruling in Defibtech that the limitations in several of the claims require the court to reach two different constructions of “test signal.” As a result, the Court construes this term to mean the following: 6. A heart rate alarm circuit in which the inputs comprise an averaged QRS rate and the shock advisory indication (ZOLL’s '187 Patent) The Summary of the Invention in ZOLL’s '187 Patent states that it features “an alarm driven by both a heart rate detector and a fibrillation/tachycardia advisory algorithm.” This distinction sets the '187 patent apart from prior art in which alarms were based on only one of those inputs. Philips requests that the word “both” be added to the claim construction to make this distinction clear. The Court finds, however, that the claim language is already clear that both inputs are required and is capable of being understood correctly by the jury. As a result, the Court declines to construe this term. 7. Generate an alarm when the monitoring circuitry determines that the external power connection is not connected to a source of external power and that the medical device to which the power supply may be connected is not turned on/Generating an alarm when the external power connection is not connected to the external power source and the medical device is not turned on (ZOLL’s '807 Patent) Philips argues that the alarm circuitry is configured to generate an alarm “as a result of’ the monitoring circuitry determining that the device is both not connected to external power and not turned on. Philips asserts, therefore, that unless the Court construes “when” to mean “as a result of’ the causal connection will" } ]

[ { "docid": "10845069", "title": "", "text": "is barred. Wenger maintains, however, that the Commonwealth has waived this default. In making this argument, Wenger relies on Hull v. Kyler, 190 F.3d 88 (3d Cir.1999), but we find that case to be inapposite. In Hull, the prisoner raised the relevant claim in. the Court of Common Pleas and the Superior Court, but his attorney failed to file a timely petition for allowance of appeal to the state supreme court. 190 F.3d at 98. Subsequently, however, in a collateral proceeding, “Hull sought, and received, from the ... Court of Common Pleas leave to file a petition for allowance of appeal nunc pro tunc to the state supreme court” from the prior Superior Court decision that had rejected the claim on the merits. Id. (emphasis in original). “The leave was granted on the basis of his post-conviction counsel’s ineffectiveness in failing to timely file such a petition originally or to notify Hull of this failure in a timely fashion.” Id. The order granting this relief was never reversed by the state courts; Hull filed a nunc pro tunc petition for allowance of appeal; and the state supreme court denied that petition without comment. Id. We held that the granting of leave to file the petition nunc pro tunc constituted a waiver by the state courts of the prior procedural default. Id. at 98-99. Wenger argues that, if he procedurally defaulted his ineffective assistance of counsel claims when he failed to file a timely petition for allowance of appeal from the 1991 decision of the Superior Court, the Court of Common Pleas waived that default in his subsequent PCRA proceeding when the court dismissed that petition, not on the ground that the ineffective assistance claims had been defaulted or waived, but on the ground that they had been “previously litigated.” Appellant’s Br. at 18. We reject this argument. Under the PCRA, a petitioner must prove that an “allegation of error has not been previously litigated or waived.” 42 Pa. Cons.Stat. Ann. § 9548(a)(3). An allegation is considered to have been “previously litigated” if “the highest appellate court in which the petitioner" } ]

[ { "docid": "16117520", "title": "", "text": "an inaccurate and misleading voluntary intoxication instruction, and previous counsel rendered ineffective assistance for failing to challenge the error; (2) trial counsel ineffectively failed to present all of the available evidence of petitioner’s intoxication; and (3) the Commonwealth presented insufficient evidence of petitioner's capacity to form the specific intent required for first degree murder. The district court only reached the first part of the claim, and the appellants have only challenged that ruling on appeal. . On May 9, 2000, the Pennsylvania Supreme Court issued an order in In re: Exhaustion of State Remedies in Criminal and Post-Conviction Relief Cases, No. 218 Judicial Administration Docket No. 1, declaring that federal habeas petitioners no longer have to appeal to the state supreme court. See Wenger v. Frank, 266 F.3d 218, 225 (3d Cir.2001). . See 42 Pa.C.S.A. § 9545(b)(3). . In Banks v. Horn, 126 F.3d 206 (3d Cir.1997), we observed that the PCRA waiver rules had not been consistently applied in capital cases, and held that we could not determine whether further avenues of state court review would be \"clearly foreclosed” under the PCRA waiver provisions with respect to a claim raised in a successive PCRA petition in a capital case. We therefore dismissed the claim as unexhausted to allow the petitioner to return to the state courts. However, as noted above, the Pennsylvania Supreme Court has since held that it will no longer relax procedural requirements in capital cases. Accordingly, PCRA petitioners who have received the death penalty are held to the same procedural requirements as all other PCRA petitioners. See Albrecht, 554 Pa. 31, 720 A.2d 693; Fahy v. Horn, 240 F.3d 239, 245 (3d Cir.2001). Moreover, the jurisdictional nature of the PCRA’s filing deadlines is now clear. Fahy at 245 (citing Banks, supra). See also Commonwealth v. Basemore, 560 Pa. 258, 744 A.2d 717, 726 (2000). .This was ninety days after the Pennsylvania Supreme Court affirmed his sentence, which was at the expiration of the time for filing a petition for writ of certiorari with the United States Supreme Court. . Whitney does not allege governmental interference," }, { "docid": "16117478", "title": "", "text": "1998, the time for filing another PCRA petition containing new claims had already expired. Therefore, argued counsel, Whitney’s failure to assert his habeas claims in another PCRA petition should not preclude federal review of the merits of his habeas claims. Counsel also argued that, until November 1998, the Pennsylvania Supreme Court had observed a “relaxed waiver” policy in cases involving the death penalty. Under that policy, the court entertained all claims raised by capital defendants, even though the claims may not have been properly preserved or were procedurally barred. Moreover, the Pennsylvania Supreme Court often reviewed such claims even though they were asserted in PCRA petitions that did not meet the time restrictions of 42 Pa.C.S.A. § 9545(b)(1). Thus, counsel argued, after the Pennsylvania Supreme Court announced that the time bar was jurisdictional, see Commonwealth v. Banks, 556 Pa. 1, 726 A.2d 374 (1999), and that it would no longer observe the relaxed waiver rule, see Commonwealth v. Peterkin, 554 Pa. 547, 722 A.2d 638 (1998), any petition filed by Whitney would have been untimely. Habeas counsel therefore, argued that the PCRA time bar was not an adequate and independent state procedural bar precluding federal review of the claims which Whitney had not presented in the state courts. The court accepted Whitney’s procedural default argument. The court concluded that, although Whitney had not presented most of his federal habeas claims to the state courts, exhaustion should be excused, and that the PCRA time bar was not an adequate and independent state ground for denying Whitney relief. The district court then proceeded to the merits of Whitney’s challenge to the trial court’s instruction on voluntary intoxication, and his claim that trial counsel rendered ineffective assistance in failing to object to it (claim VI). The substance of that jury instruction is set forth later in our discussion. For now, we simply note that the trial judge misstated the Commonwealth’s burden of proving specific intent to kill in Pennsylvania when a defendant introduces evidence of voluntary intoxication. The district court concluded that the trial court’s misstatement created a substantial possibility that Whitney’s jury" }, { "docid": "16117521", "title": "", "text": "court review would be \"clearly foreclosed” under the PCRA waiver provisions with respect to a claim raised in a successive PCRA petition in a capital case. We therefore dismissed the claim as unexhausted to allow the petitioner to return to the state courts. However, as noted above, the Pennsylvania Supreme Court has since held that it will no longer relax procedural requirements in capital cases. Accordingly, PCRA petitioners who have received the death penalty are held to the same procedural requirements as all other PCRA petitioners. See Albrecht, 554 Pa. 31, 720 A.2d 693; Fahy v. Horn, 240 F.3d 239, 245 (3d Cir.2001). Moreover, the jurisdictional nature of the PCRA’s filing deadlines is now clear. Fahy at 245 (citing Banks, supra). See also Commonwealth v. Basemore, 560 Pa. 258, 744 A.2d 717, 726 (2000). .This was ninety days after the Pennsylvania Supreme Court affirmed his sentence, which was at the expiration of the time for filing a petition for writ of certiorari with the United States Supreme Court. . Whitney does not allege governmental interference, nor does he argue a new retroactive rule of constitutional law. Furthermore, Whitney’s challenge to the jury instruction and his assertion that previous counsel were ineffective for failing to raise the error do not constitute claims of after discovered evidence. See, e.g., Commonwealth v. Gamboa-Taylor, 562 Pa. 70, 753 A.2d 780, 785-786 (2000) (subsequent counsel's review of previous counsel’s representation and conclusion that previous counsel was ineffective is not newly discovered “fact” encompassed in the exceptions); Commonwealth v. Pursell, 561 Pa. 214, 749 A.2d 911, 915 (2000) (same). Moreover, even if Whitney’s claim amounted to after-discovered evidence under the PCRA, Whitney would still have had to file his PCRA petition within 60 days of the date that the new evidence was discovered, and the sixty-day deadline has long passed. 42 Pa.C.S.A. § 9545(b)(2). . In McCandless, 172 F.3d at 260, we explained: When a claim is not exhausted because it has not been “fairly presented” to the state courts, but state procedural rules bar the applicant from seeking further relief in state courts, the exhaustion" }, { "docid": "16117477", "title": "", "text": "he failed to investigate, develop and present evidence of Whitney’s innocence of first degree murder; XV. the state supreme court’s arbitrary proportionality review denied him due process and rendered his death sentence unconstitutional under the Eighth Amendment; XVI. his death sentence violated various constitutional provisions because it was the result of racial discrimination; XVII. all state court counsel did not render effective assistance when they failed to raise and/or litigate the issues discussed in the habeas petition; and XVIII. he is entitled to relief because of the cumulative prejudicial effect of the errors alleged in his case. On May 22, 2000, the district court held a hearing to resolve outstanding issues of exhaustion and procedural default. The court also received evidence pertaining to claims II, V, VI, VIII, and XII. Whitney’s counsel noted that the Pennsylvania legislature had enacted the time bar for filing PCRA petitions under 42 Pa.C.S.A. § 9545(b)(1) while Whitney’s appeal from the denial of PCRA relief was pending in the Pennsylvania Supreme Court. When his appeal was finally decided in February 1998, the time for filing another PCRA petition containing new claims had already expired. Therefore, argued counsel, Whitney’s failure to assert his habeas claims in another PCRA petition should not preclude federal review of the merits of his habeas claims. Counsel also argued that, until November 1998, the Pennsylvania Supreme Court had observed a “relaxed waiver” policy in cases involving the death penalty. Under that policy, the court entertained all claims raised by capital defendants, even though the claims may not have been properly preserved or were procedurally barred. Moreover, the Pennsylvania Supreme Court often reviewed such claims even though they were asserted in PCRA petitions that did not meet the time restrictions of 42 Pa.C.S.A. § 9545(b)(1). Thus, counsel argued, after the Pennsylvania Supreme Court announced that the time bar was jurisdictional, see Commonwealth v. Banks, 556 Pa. 1, 726 A.2d 374 (1999), and that it would no longer observe the relaxed waiver rule, see Commonwealth v. Peterkin, 554 Pa. 547, 722 A.2d 638 (1998), any petition filed by Whitney would have been untimely." }, { "docid": "21997198", "title": "", "text": "that render such process ineffective to protect the rights of the applicant. . The Pennsylvania Supreme Court applied the relaxed waiver doctrine in dozens of capital cases between 1978 and 1998. See, e.g., Commonwealth v. Brown, 551 Pa. 465, 711 A.2d 444, 455 (1998) (\"This Court generally applies a relaxed waiver rule in capital cases because of the permanent and irrevocable nature of the death penalty”); Commonwealth v. Morales, 549 Pa. 400, 701 A.2d 516, 520 n. 13 (1997) (\"[T]his Court's practice has been to address all waived issues which have been raised in PCRA death penalty petitions”); Commonwealth v. Morris, 546 Pa. 296, 684 A.2d 1037, 1042 n. 11 (1996) (\"While we agree that some of the issues presented ... could be deemed waived pursuant to the PCRA, we will nevertheless address all of the Appellant's claims ... because it is this Court's practice to address all issues arising in a death penalty case irrespective of a finding of waiver”); Commonwealth v. DeHart, 539 Pa. 5, 650 A.2d 38, 48 (1994) (\"Although Appellant concedes that this issue is technically waived because it was not previously raised below, we will nonetheless address it because we have not been strict in applying our waiver rules in death penalty cases”); Commonwealth v. Abu-Jamal, 521 Pa. 188, 555 A.2d 846, 854 (1989) (same). For more Pennsylvania Supreme Court cases applying the doctrine of relaxed waiver, see Louis M. Natali, New Bars in Pennsylvania Capital Post-Conviction Law and Their Implications for Federal Habeas Corpus Review, 73 Temp. L.Rev. 69, 121 n. 147 (2000). . In Albrecht, the Pennsylvania Supreme Court found that there were adequate safeguards to ensure the fairness of verdicts in capital cases, that the relaxed waiver doctrine impeded the goal of finality of judgments, and consequently held that; \"Henceforth, a PCRA petitioner’s waiver will only be excused upon a demonstration of ineffectiveness of counsel in waiving the issue.” 720 A.2d at 700. . This presumption applies to factual determinations of both state trial and appellate courts. See Dickerson v. Vaughn, 90 F.3d 87, 90 (3d Cir.1996). . \"If the applicant challenges" }, { "docid": "5550183", "title": "", "text": "a clear standard on this issue, this Court concludes that the state adjudication of the claim did not result in a decision that was contrary to, or an unreasonable application of, federal law as established by the Supreme Court. Finally, the Court rejects petitioner’s argument that trial and appellate counsel were ineffective for failing to raise this issue. As the Pennsylvania Supreme Court correctly observed, “[c]ounsel cannot be ineffective for failing to raise a meritless claim.” Laird, 555 Pa. at 649, 726 A.2d at 355. See generally Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Accordingly, the Court concludes that petitioner’s claim regarding inconsistent jury verdicts and the trial court’s failure to poll each juror regarding their verdict on each count with respect to each defendant (Claim XIV) does not constitute a basis for federal habeas relief. 6. Constitutionality of Reasonable Doubt Instruction Petitioner asserts that he should be afforded a new trial because the reasonable doubt instruction given at trial was in vio lation of due process and the Eighth Amendment; he argues that the charge relaxed the standard of proof such that the Commonwealth did not have to meet its burden beyond a reasonable doubt (Claim XV). Respondents contend that this claim is procedurally defaulted because the PCRA court stated the issue was waived. On PCRA review, the Pennsylvania Supreme Court, citing Albrecht, wrote that “[a] claim for post-conviction relief cannot be raised for the first time on appeal to this court.” Laird, 555 Pa. at 646, 726 A.2d at 354. The court went on to explain that the pre-Albrecht relaxed waiver rule would not apply in petitioner’s case. As discussed supra Part 111(C)(2), at the time petitioner filed his direct appeal and PCRA petition, the Pennsylvania courts were still employing a relaxed waiver rule in capital cases whereby claims raised during PCRA review could be reached regardless of waiver. Additionally, as discussed supra, an unsettled state procedural rule does not serve as a bar to federal habeas review. Since the claim was presented to the Pennsylvania Supreme Court on PCRA review and" }, { "docid": "23637381", "title": "", "text": "issue; or (3) it has been raised and decided in a proceeding collaterally attacking the conviction or sentence. (b) Issues waived. — For purposes of this subchapter, an issue is waived if the petitioner could have raised it but failed to do so before trial, at trial, during unitary review, on appeal or in a prior state postconviction proceeding. When Lines filed his first PCRA petition he was represented by counsel other than trial counsel. Therefore, he could have raised the issue of trial counsel’s ineffectiveness in failing to move for a severance in his first PCRA petition. See Commonwealth v. Griffin, 537 Pa. 447, 454, 644 A.2d 1167 (1994) (a claim of ineffectiveness of counsel under the PCRA must be raised at the earliest stage in the proceedings after petitioner is no longer represented by allegedly ineffective counsel). Under Pennsylvania law Lines could attempt to challenge the stewardship of PCRA counsel even though he is not guaranteed the right to counsel to collaterally attack his conviction under the United States Constitution. See Commonwealth v. Albrecht, 554 Pa. 31, 43, 720 A.2d 693 (1998) (“we have never found our power of review, and if necessary, remedy deficiencies of counsel at the post-conviction stage circumscribed by the parameters of the Sixth Amendment.”). However, the only vehicle for now doing so is a second P.C.R.A. petition. As we noted above, the period for filing such a petition has long since run, and the courts of Pennsylvania therefore no longer have jurisdiction to entertain a successive P.C.R.A. petition. Banks, 726 A.2d at 376 (“the issue ... is one of jurisdiction ... ”). Accordingly, we conclude that it would be futile for Lines to return to state court in an effort to attempt to bring a second PCRA proceeding raising the unexhausted claims he has included in his federal habeas petition. Thus, although “federal courts should be most cautious before reaching a conclusion dependent upon an intricate analysis of state law that a claim is procedurally barred,” Banks v. Horn, 126 F.3d at 213, the aforementioned considerations combine to convince us that Lines is" }, { "docid": "5550134", "title": "", "text": "will no longer do so in PCRA appeals.” (internal citation omitted). In this case, as discussed supra, petitioner filed his direct appeal and all submissions related to his PCRA petition before the Albrecht rule was clearly established; it thus does not serve to bar federal habeas review as an adequate state procedural ground. Prior to the Pennsylvania Supreme Court’s decision in Albrecht, the rule applied by the state courts explicitly allowed the Pennsylvania Supreme Court to reach the merits of PCRA petitions in capital cases regardless of whether a claim was previously waived. In Commonwealth v. DeHart, 539 Pa. 5, 25, 650 A.2d 38, 48 (1994), for example, the Pennsylvania Supreme Court explained that although “[a]ppellant concedes that this issue is technically waived because it was not previously raised below, we will nonetheless address it because we have not been strict in applying our waiver rules in death penalty cases.” See also Commonwealth v. Beasley, 544 Pa. 554, 563, 678 A.2d 773, 777 (1996) (writing that, in spite of the fact that petitioner failed to comply with applicable PCRA rules, and that the claim should be dismissed without a hearing on the merits, “since this is a capital case, this court will address appellant’s claims”). In examining the state of Pennsylvania procedural law applicable to death penalty cases as of November, 1997, the Third Circuit described the procedural terrain as “inhibitively opaque,” in part because the Pennsylvania Supreme Court had not yet announced in Albrecht that it would no longer observe the relaxed waiver rule in capital cases. Fahy v. Horn, 240 F.3d 239, 245 (3d Cir.2001), petition for cert. filed, 70 U.S.L.W. 3074 (U.S. June 25, 2001) (No. 01-17). As found by the district court in Bronshtein v. Horn, 2001 WL 767593, at *8 n. 17 (E.D.Pa. July 5, 2001), “[b]ecause it is clear that the relaxed waiver doctrine did not fall out of favor in the PCRA context until after the waiver in the instant case occurred [on October, 20, 1998], [petitioner’s] second PCRA petition was not dismissed on the basis of an adequate state ground.” Since petitioner" }, { "docid": "10641635", "title": "", "text": "emotional and mental problems, may be less culpable than defendants who have no such excuse” (internal quotation marks omitted)). Because the Pennsylvania Supreme Court did not consider whether Lewis’s counsel may have been ineffective for failing to investigate or present independently mitigating background evidence, on remand, the District Court can review this aspect of Lewis’s claim under a de novo standard. IV. For the reasons stated above, we will affirm the District Court’s denial of relief as to Lewis’s conviction, we will vacate its grant of relief as to Lewis’s sentence, and we will remand for an evidentiary hearing consistent with this opinion. . In a Pennsylvania jury trial, after a first-degree murder verdict \"is recorded and before the jury is discharged, the court shall conduct a separate sentencing hearing in which the jury shall determine whether the defendant shall be sentenced to death or life imprisonment.\" 42 Pa. Cons.Stat. Ann. § 9711(a)(1). . Lewis’s PCRA petition was timely because he filed it before an amendment to the PCRA went into effect in January 1996, which created a one-year filing deadline from the date judgment becomes final. See 42 Pa. Cons. Stat. Ann. § 9545(b); see also Bronshtein v. Horn, 404 F.3d 700, 708 (3d Cir.2005) (discussing when the one-year filing deadline became a firmly established and regularly followed rule). . We limit our discussion of the claims reached by the District Court to those which are relevant to the instant appeal. . Additionally, Lewis contends that the Pennsylvania Supreme Court's conclusion during the PCRA appeal that the previous litigation rule barred reconsideration of the Batson claim is not an independent and adequate ground to foreclose review in federal court at this time. We agree. At the time when Lewis's Batson claim was first litigated — during his direct appeal — the Pennsylvania Supreme Court had a practice of reaching the merits of claims in capital cases, despite the existence of procedural defects. See Banks v. Horn, 126 F.3d 206, 212-14 (3d Cir.1997). Therefore, the fact that Lewis's claim may have been previously litigated in his first appeal is an" }, { "docid": "22476263", "title": "", "text": "was clear that the petitioner’s claims would be deemed procedurally barred if presented in the state court. Id. (citing Grey v. Hoke, 933 F.2d 117, 120 (2d Cir.1991)). Some courts have been reluctant to apply the futility exception, however, because it has been criticized for potentially bypassing the state courts. Id. at 1522 n. 2755 (citations omitted). Most importantly, we recently applied our jurisprudence to hold that unless a state court decision exists indicating that a habeas petitioner is clearly precluded from state court relief, the federal habeas claim should be dismissed for nonexhaustion, even if it appears unlikely that the state will address the merits of the petitioner’s claim. Banks v. Horn, 126 F.3d 206, 211 (3d Cir.1997) (citing Doctor v. Walters, 96 F.3d 675, 683 (3d Cir.1996); Toulson, 987 F.2d at 988-89; Peoples v. Fulcomer, 882 F.2d 828, 831-32 (3d Cir.1989)). In Banks, we were faced with whether the Pennsylvania Supreme Court, in death penalty cases, consistently or regularly bars second or subsequent PCRA petitions which may not meet the court’s criteria for such petitions, “includpng] the existence of ‘a strong prima facie showing ... that a miscarriage of justice may have occurred.’” Banks v. Horn, 126 F.3d at 211 (citing Commonwealth v. Beasley, 544 Pa. 554, 678 A.2d 773, 777 (1996), cert. denied, — U.S.-, 117 S.Ct. 1257, 137 L.Ed.2d 337 (1997)). We concluded, based on our review of Pennsylvania case law, that the Pennsylvania Supreme Court had established a practice of reaching the merits of claims in PCRA petitions in capital cases notwithstanding the failure of the petitioner to meet the appropriate procedural requirements. Id. at 212-13. Because we were not sure that the supreme court would change this practice after the 1995 amendments to the PCRA, we found that state review of Bank’s unexhausted claims was not foreclosed. Id. at 214. In deciding Banks, we relied on Doctor v. Walters, supra, which involved a defendant who fled during the lunch recess of his criminal bench trial on the charge of aggravated assault following the presentation of the Commonwealth’s case. When the defendant failed to return," }, { "docid": "16117522", "title": "", "text": "nor does he argue a new retroactive rule of constitutional law. Furthermore, Whitney’s challenge to the jury instruction and his assertion that previous counsel were ineffective for failing to raise the error do not constitute claims of after discovered evidence. See, e.g., Commonwealth v. Gamboa-Taylor, 562 Pa. 70, 753 A.2d 780, 785-786 (2000) (subsequent counsel's review of previous counsel’s representation and conclusion that previous counsel was ineffective is not newly discovered “fact” encompassed in the exceptions); Commonwealth v. Pursell, 561 Pa. 214, 749 A.2d 911, 915 (2000) (same). Moreover, even if Whitney’s claim amounted to after-discovered evidence under the PCRA, Whitney would still have had to file his PCRA petition within 60 days of the date that the new evidence was discovered, and the sixty-day deadline has long passed. 42 Pa.C.S.A. § 9545(b)(2). . In McCandless, 172 F.3d at 260, we explained: When a claim is not exhausted because it has not been “fairly presented” to the state courts, but state procedural rules bar the applicant from seeking further relief in state courts, the exhaustion requirement is satisfied because there is \"an absence of available State corrective process.” 28 U.S.C. § 2254(b). In such cases, however, applicants are considered to have procedurally defaulted their claims and federal courts may not consider the merits of such claims unless the applicant establishes “cause and prejudice” or a \"fundamental miscarriage of justice” to excuse his or her default. Id. (citing Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991)). . Whitney and the Commonwealth also argue over whether Pennsylvania's relaxed waiver rule for capital cases may constitute \"cause” for Whitney's procedural default. However, it is not necessary for us to answer that question here because we conclude that Whitney can not make the threshold showing of prejudice. See United States v. Frady, 456 U.S. 152, 167, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982) (finding it unnecessary to determine whether petitioner had demonstrated cause, because he had not suffered actual prejudice sufficient to justify collateral relief). . Whitney argues that his ineffective assistance of counsel claim is exhausted. The" }, { "docid": "13816731", "title": "", "text": "the same claim he asks the federal courts to review. See Johnson v. Pinchak, 392 F.3d 551, 556 (3d Cir.2004). “The habeas petitioner carries the burden of proving exhaustion of all available state remedies.” Lambert v. Blackwell (Lambert I), 134 F.3d 506, 513 (3d Cir.1997) (citation omitted). In this case, the District Court found that Boyd exhausted his claim that Sciolla was ineffective in rejecting the initial plea offer without consulting his client. The record supports the District Court’s conclusion because Boyd made this argument to the PCRA courts. Additionally, Boyd alerted the PCRA courts to the federal nature of his claim by citing Strickland, which satisfied the presentation requirement. See Baldwin v. Reese, 541 U.S. 27, 29, 124 S.Ct. 1347, 158 L.Ed.2d 64 (2004); see also Hameen v. Delaware, 212 F.3d 226, 247 (3d Cir.2000). That the courts denied Boyd’s claim on procedural grounds does not change the fact that he “presented” it. See Holloway, 355 F.3d at 717-18. Although the Commonwealth concedes that Boyd presented this federal claim in the PCRA proceedings, it argues that the District Court’s finding of exhaustion is contrary to Wenger v. Frank, 266 F.3d 218 (3d Cir.2001), where we held that a habeas petitioner who neglected to file a timely petition for allocatur to the Pennsylvania Supreme Court failed to exhaust his claims. Id. at 223-24. Significantly, however, Boyd’s claim arose after the Pennsylvania Supreme Court issued In re: Exhaustion of State Remedies in Criminal and Post Conviction Relief Cases, No. 218 Judicial Administration Docket No. 1 (Order 218). Since Wenger we have held that Order 218 “renders review from the Pennsylvania Supreme Court ‘unavailable’ for purposes of exhausting state court remedies under § 2254(c).” Lambert v. Blackwell (Lambert II), 387 F.3d 210, 233 (3d Cir.2004). Accordingly, we hold that Boyd exhausted his Strickland claim in state court. See Cristin v. Brennan, 281 F.3d 404, 410 (3d Cir.2002). B. Our conclusion that Boyd exhausted his Strickland claim does not answer the question of procedural default, however, because the Supreme Court has made clear that a procedural default “forecloses relief even when the petitioner" }, { "docid": "22003930", "title": "", "text": "this not a capital case, this claim of error would be summarily dismissed as having been waived. No objection was made at the time of trial, the issue was not addressed in post-verdict motions, and appellate counsel has not claimed that trial counsel’s ineffective assistance in this regard is a special circumstance justifying appellate review despite the waiver. Nevertheless, we will address it on the merits in light of \"relaxation” of the waiver rule previously noted as being appropriate in capital cases. Id. at 854. Pennsylvania state courts have since disavowed application of the relaxed waiver rule, but, at the time of Abu-Jamal's state appeals, an \"unforgiving waiver rule was not consistently and regularly applied.” Albrecht v. Horn, 485 F.3d 103, 116 (3d Cir.2007) (internal quotations omitted). . The PCRA court likely relied on 42 Pa. Cons.Stat. § 9544(a) (\"[A]n issue has been previously litigated if: ... (2) the highest appellate court in which the petitioner could have had review as a matter of right has ruled on the merits of the issue ....”) rather than § 9544(b) (\"[A]n issue is waived if the petitioner could have raised it but failed to do so before trial, at trial, during unitary review, on appeal or in a prior state postconviction proceeding.”) because it applied the relaxed waiver rule throughout the opinion. See PCRA Op., 1995 WL 1315980, at *70 n. 28 (\"Since the instant matter resulted in a sentence of death, this Court will relax the waiver rule and make findings and conclusions based on the merits of each issue presented.”). . Under Pennsylvania law, to obtain relief on a claim of ineffective assistance of counsel, Abu-Jamal was required to demonstrate that: \"(1) the underlying substantive claim has arguable merit; (2) counsel whose effectiveness is being challenged did not have a reasonable basis for his or her actions or failure to act; and (3) the petitioner suffered prejudice as a result of that counsel's deficient performance.” Commonwealth v. McGill, 574 Pa. 574, 832 A.2d 1014, 1020 (2003); see also Commonwealth v. LaCava, 542 Pa. 160, 666 A.2d 221, 229 (1995). ." }, { "docid": "5550184", "title": "", "text": "Eighth Amendment; he argues that the charge relaxed the standard of proof such that the Commonwealth did not have to meet its burden beyond a reasonable doubt (Claim XV). Respondents contend that this claim is procedurally defaulted because the PCRA court stated the issue was waived. On PCRA review, the Pennsylvania Supreme Court, citing Albrecht, wrote that “[a] claim for post-conviction relief cannot be raised for the first time on appeal to this court.” Laird, 555 Pa. at 646, 726 A.2d at 354. The court went on to explain that the pre-Albrecht relaxed waiver rule would not apply in petitioner’s case. As discussed supra Part 111(C)(2), at the time petitioner filed his direct appeal and PCRA petition, the Pennsylvania courts were still employing a relaxed waiver rule in capital cases whereby claims raised during PCRA review could be reached regardless of waiver. Additionally, as discussed supra, an unsettled state procedural rule does not serve as a bar to federal habeas review. Since the claim was presented to the Pennsylvania Supreme Court on PCRA review and rejected, the Court concludes that petitioner has fully exhausted this claim as there is no further state remedy available to petitioner and that the claim is not procedurally defaulted. See supra Part III; 28 U.S.C. § 2254(b)(l)(B)(i), (d). Pre-AEDPA independent judgment in analyzing the claim is appropriate as it was not adjudicated on the merits by the state court. See Appel v. Horn, 250 F.3d 203, 210 (3d Cir.2001). The United States Constitution does not dictate the manner in which a criminal jury be instructed regarding the government’s burden of proof so long as the jury instructions, taken as a whole, correctly convey the concept of reasonable doubt to the jury. Victor v. Nebraska, 511 U.S. 1, 5, 114 S.Ct. 1239, 127 L.Ed.2d 583 (1994). Provided that the trial court instructs the jury on the necessity of finding guilt beyond a reasonable doubt, the federal Constitution does not require that particular words be used in advising a jury of the prosecution’s burden of proof. At trial, the court’s reasonable doubt instruction to the jury was" }, { "docid": "16117476", "title": "", "text": "all of the available evidence of petitioner’s intoxication, and the Commonwealth presented insufficient evidence of petitioner’s capacity to form the specific intent required for first degree murder; VII. the trial court erred in failing to give a life without possibility of parole instruction to the jury; VIII. the sentencing phase jury instructions indicated that mitigating circumstances had to be found unanimously, in violation of Mills v. Maryland, 486 U.S. 367, 108 S.Ct. 1860, 100 L.Ed.2d 384 (1988); IX. the aggravating circumstance of torture was improperly applied to him; X. the aggravating circumstance of “knowingly creat[ing] a grave risk of death to another person in addition to the victim” was improperly applied to him; XI. the Commonwealth was improperly permitted to introduce testimony that Whitney used an alias; XII. a Commonwealth witness testified about Whitney’s post-arrest and post-Miranda silence in violation of the Fifth, Eighth, and Fourteenth Amendments; XIII. trial counsel did not render effective assistance because he failed to advise Whitney of his right to testify; XIV. trial counsel did not render effective assistance because he failed to investigate, develop and present evidence of Whitney’s innocence of first degree murder; XV. the state supreme court’s arbitrary proportionality review denied him due process and rendered his death sentence unconstitutional under the Eighth Amendment; XVI. his death sentence violated various constitutional provisions because it was the result of racial discrimination; XVII. all state court counsel did not render effective assistance when they failed to raise and/or litigate the issues discussed in the habeas petition; and XVIII. he is entitled to relief because of the cumulative prejudicial effect of the errors alleged in his case. On May 22, 2000, the district court held a hearing to resolve outstanding issues of exhaustion and procedural default. The court also received evidence pertaining to claims II, V, VI, VIII, and XII. Whitney’s counsel noted that the Pennsylvania legislature had enacted the time bar for filing PCRA petitions under 42 Pa.C.S.A. § 9545(b)(1) while Whitney’s appeal from the denial of PCRA relief was pending in the Pennsylvania Supreme Court. When his appeal was finally decided in February" }, { "docid": "23155356", "title": "", "text": "Fahy attempted to navigate. Because the consequences are so grave and the applicable law is so confounding and unsettled, we must allow less than “extraordinary” circumstances to trigger equitable tolling of the AEDPA’s statute of limitations when a petitioner has been diligent in asserting his or her claims and rigid application of the statute would be unfair. The subsequent question, therefore, is whether Fahy diligently and reasonably asserted his claims. First, at the time Fahy filed his fourth PCRA petition Pennsylvania law was unclear on the operation of the new PCRA time limit. The Pennsylvania courts could have accepted Fahy’s petition as timely because of its role within the capital case, see Banks v. Horn, 126 F.3d 206 (3d Cir.1997), or could have found the government interference exception applicable. See Commonwealth v. Lark, 560 Pa. 487, 746 A.2d 585 (2000). The law at the time of Fahy’s petition was inhibitively opaque. Fahy filed his fourth PCRA petition in November, 1997, months before the Pennsylvania Supreme Court announced that it would no longer observe the relaxed waiver rule in Commonwealth v. Albrecht, 554 Pa. 31, 720 A.2d 693 (1998). Further, the Pennsylvania Supreme Court did not clarify that the state PCRA statute was jurisdictional and not waivable until 1999 in Commonwealth v. Banks, 556 Pa. 1, 726 A.2d 374 (1999). In Banks, 126 F.3d at 214, we rejected the Commonwealth’s claim that a PCRA petition would be time-barred and required Banks to return to state court because we could not confidently determine that the state court would not apply the relaxed waiver rule it had applied in previous capital cases. If we could not predict how the Pennsylvania court would rule on this matter, then surely we should not demand such foresight from the petitioner. Fahy’s misjudgment, therefore, was reasonable. Second, it was also objectively reasonable for Fahy to believe that if he filed a § 2254 petition at the time he filed his fourth PCRA petition, the § 2254 petition would be dismissed as unexhausted. As we stated in Banks, at the relevant time we could not, “with confidence,” predict" }, { "docid": "13131346", "title": "", "text": "pro tunc. Villot raised three ineffective assistance claims on appeal. First, he claimed his plea counsel coerced him into pleading guilty. Second, he claimed that his plea counsel failed to adequately interview him prior to advising him to plead guilty. Finally, he reiterated the conflict of interest claim described above. In July 1999, the Superior Court affirmed the dismissal of his PCRA petition. The court noted that, pursuant to a 1995 amendment, the PCRA now requires a petitioner seeking relief from his guilty plea to show not only that the plea was “unlawfully induced” but also that he is innocent. 42 Pa. Const. Stat. § 9543(a)(2)(iii). The court held that Vil-lot’s claims were “not cognizable” under this section because Villot had failed to assert his innocence. The court further noted that Villot admitted facts consistent with his guilty plea in his brief supporting his PCRA appeal and held that “[o]bviously, Appellant is not innocent.” In November 1999, the Pennsylvania Supreme Court denied Villot’s petition for allowance of appeal. In October 2000, Villot filed a 28 U.S.C. § 2254 petition in the Eastern District of Pennsylvania, alleging the same three ineffective assistance claims he had raised in his PCRA appeal. The Magistrate Judge held that Villot’s first two claims were procedurally defaulted based on the Superior Court’s holding that Villot’s claims were “not cognizable.” The Magistrate Judge held, however, that Villot’s third claim was insulated from the Superior Court’s holding because that claim was properly exhausted on direct appeal. The Magistrate Judge noted that Villot failed to petition the Pennsylvania Supreme Court following the Superior Court’s denial of his direct appeal, but held that this was no longer a required step in the exhaustion process for habeas cases arising in Pennsylvania. The Magistrate Judge cited In re: Exhaustion of State Remedies in Criminal and Rost-Conviction Relief Cases, No. 218 Judicial Administration Docket No. 1 (Pa. May 9, 2000) (Order 218) of the Pennsylvania Supreme Court, which provides that “in all appeals from criminal convictions ... a litigant shall not be required to petition for rehearing or allowance of appeal following an" }, { "docid": "23370343", "title": "", "text": "325 (3d Cir.2001) (quoting Coleman v. Thompson, 501 U.S. 722, 729, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991)). We have previously explained that a rule is adequate only under the following conditions: “(1) the state procedural rule speaks in unmistakable terms; (2) all state appellate courts refused to review the petitioner’s claims on the merits; and (3) the state courts’ refusal in this instance is consistent with other decisions.” Doctor v. Walters, 96 F.3d 675, 683-84 (3d Cir.1996). In other words, a procedural rule is adequate only if it is “firmly established, readily ascertainable, and regularly followed at the time of the purported default.” Szuchon, 273 F.3d at 327. Generally, Pennsylvania’s PCRA requires a petitioner to prove that his allegation of eiTor has not been waived. 42 Pa. Cons.Stat. Ann. § 9543(a)(3). An issue is deemed waived if the petitioner could have raised it but failed to do so before trial, at trial, during unitary review, on appeal or in a prior state postconviction proceeding. Id. § 9544(b). Currently, the Pennsylvania Supreme Court enforces the waiver rule in capital cases on PCRA appeal, and generally deems an issue waived where the petitioner failed to present it to the PCRA court. See Commonwealth v. Albrecht, 554 Pa. 31, 720 A.2d 693, 700 (1998). Prior to Albrecht, however, the Pennsylvania Supreme Court applied the relaxed waiver doctrine in capital cases on PCRA appeal. Id. Under the relaxed waiver doctrine, the Pennsylvania Supreme Court declined to apply ordinary waiver principles in capital cases in an effort to prevent the court “from being instrumental in an unconstitutional execution.” Id. On November 23, 1998, the Pennsylvania Supreme Court in Albrecht expressly abandoned the relaxed waiver doctrine in capital cases on PCRA appeal. Id. The relevant question, then, is whether Pennsylvania’s strict enforcement of the waiver rule in capital cases on PCRA appeal was “firmly established, readily ascertainable, and regularly followed at the time of the purported default.” Szuchon, 273 F.3d at 327. According to the Pennsylvania Supreme Court, Jacobs waived his claim challenging counsel’s failure to request voir dire regarding racial prejudice when he failed" }, { "docid": "5550135", "title": "", "text": "comply with applicable PCRA rules, and that the claim should be dismissed without a hearing on the merits, “since this is a capital case, this court will address appellant’s claims”). In examining the state of Pennsylvania procedural law applicable to death penalty cases as of November, 1997, the Third Circuit described the procedural terrain as “inhibitively opaque,” in part because the Pennsylvania Supreme Court had not yet announced in Albrecht that it would no longer observe the relaxed waiver rule in capital cases. Fahy v. Horn, 240 F.3d 239, 245 (3d Cir.2001), petition for cert. filed, 70 U.S.L.W. 3074 (U.S. June 25, 2001) (No. 01-17). As found by the district court in Bronshtein v. Horn, 2001 WL 767593, at *8 n. 17 (E.D.Pa. July 5, 2001), “[b]ecause it is clear that the relaxed waiver doctrine did not fall out of favor in the PCRA context until after the waiver in the instant case occurred [on October, 20, 1998], [petitioner’s] second PCRA petition was not dismissed on the basis of an adequate state ground.” Since petitioner had no way of knowing throughout the pendency of his PCRA proceedings that the Pennsylvania Supreme Court was going to change course and decline to apply the relaxed waiver rule in his case, the Court concludes that the Pennsylvania Supreme Court’s decision in Albrecht is not a state procedural bar that is adequate to preclude habeas review and that any state court findings of default based on Albrecht will not foreclose review by this Court. Rather, the older relaxed waiver rule applies to petitioner in analyzing state procedural default as a bar to federal habeas relief. See Ford, 498 U.S. at 424, 111 S.Ct. 850; Doctor, 96 F.3d at 683-84. Furthermore, as discussed supra, since the Pennsylvania Supreme Court has clearly stated that Albrecht applies retroactively, the Court concludes that “there is an absence of available State corrective process,” 28 U.S.C. § 2254(b)(1)(B)©, with respect to claims that petitioner may have inadvertently waived, and this Court will treat any such claims as if they were exhausted. 3. “Previously Litigated” To be eligible for state post-conviction" }, { "docid": "16117519", "title": "", "text": "Court. . The petitions were dated March 8, 1991, September 23, 1991, December 17, 1991, and June 4, 1992. . Whitney did not file a petition for certiorari in the United States Supreme Court. . The Commonwealth had urged dismissal of Whitney's petition under Rose v. Lundy, 455 U.S. 509, 510, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982), because it contained exhausted and unexhausted claims. Whitney thereafter filed an amended habeas petition deleting claim XVI. He apparently decided to pursue claim XVI in state court. . Whitney's habeas petition was filed after the Antiterrorism and Effective Death Penalty Act (\"AEDPA”) became effective. However, because the issue here is the procedural bar, and the state courts never had the opportunity to address Whitney’s challenge to the voluntary intoxication jury instruction or counsel’s ineffectiveness in failing to object, we do not apply the restrictive standard of review contained in 28 U.S.C. § 2254(d), as amended by AEDPA. . Whitney’s claim, as he presented it in his amended habeas petition, was essentially threefold: (1) the trial court gave an inaccurate and misleading voluntary intoxication instruction, and previous counsel rendered ineffective assistance for failing to challenge the error; (2) trial counsel ineffectively failed to present all of the available evidence of petitioner’s intoxication; and (3) the Commonwealth presented insufficient evidence of petitioner's capacity to form the specific intent required for first degree murder. The district court only reached the first part of the claim, and the appellants have only challenged that ruling on appeal. . On May 9, 2000, the Pennsylvania Supreme Court issued an order in In re: Exhaustion of State Remedies in Criminal and Post-Conviction Relief Cases, No. 218 Judicial Administration Docket No. 1, declaring that federal habeas petitioners no longer have to appeal to the state supreme court. See Wenger v. Frank, 266 F.3d 218, 225 (3d Cir.2001). . See 42 Pa.C.S.A. § 9545(b)(3). . In Banks v. Horn, 126 F.3d 206 (3d Cir.1997), we observed that the PCRA waiver rules had not been consistently applied in capital cases, and held that we could not determine whether further avenues of state" } ]

[ { "docid": "22463211", "title": "", "text": "distribution chain which began in Nigeria. Even though Jackson failed to testify at sentencing, the district court was not required to credit the testimony of Akhibi that he gave the package to Jackson simply so that the latter could find a place where it would not be disturbed by Jackson’s young sister. The district court’s determination is not clearly erroneous. C. Akhibi argues that the evidence presented at trial was insufficient to support the jury’s verdict. When a defendant challenges his criminal conviction on the basis of insufficient evidence, we must determine “ “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’” United States v. Wright, 16 F.3d 1429, 1439 (6th Cir.) (quoting United States v. Evans, 883 F.2d 496, 501 (6th Cir.1989), in turn quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979)), cert. denied, — U.S.-, 114 S.Ct. 2759, 129 L.Ed.2d 874 (1994). The government may meet its burden through circumstantial evidence alone, and such evidence need not exclude every possible hypothesis except that of guilt. United States v. Peters, 15 F.3d 540, 544 (6th Cir.) (citations omitted), cert. denied, — U.S.-, 115 S.Ct. 219, 130 L.Ed.2d 146 (1994). In assessing the sufficiency of the evidence, “we do not weigh the evidence, assess the credibility of the witnesses, or substitute our judgment for that of the jury.” Wright, 16 F.3d at 1440 (citing Evans, 883 F.2d at 501). The elements of a charge of possession with intent to distribute illegal drugs are (1) the defendant knowingly; (2) possessed a controlled substance; (3) with intent to distribute. Peters, 15 F.3d at 544. A conviction for the crime of illegal importation of a controlled substance requires proof that the defendant knowingly played a role in bringing the substance from a foreign country into the United States. United States v. Diaz-Carreon, 915 F.2d 951, 953 (5th Cir.1990). Akhibi argues that the government failed to establish his knowledge of the illegal contents of" } ]

[ { "docid": "15753399", "title": "", "text": "evidence Appellants contend the district court erred in denying their motion for acquittal on all counts because the Government failed to present evidence sufficient to sustain their convictions. Appellants argue that the Government failed to offer evidence that Patterson entered into any agreement with DeMagistris. Without such evidence, they argue, no conspiracy could be found; and the substantive counts must fall along with the conspiracy counts, since the scheme to defraud, as alleged in the indictment, depended upon an agreement between Patterson and DeMagistris. In reviewing denial of a motion for judgment of acquittal, we consider the evidence as a whole, taken in the light most favorable to the Government, together with all legitimate inferences to be drawn therefrom, to determine whether a rational trier of fact could have found guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789-2790, 61 L.Ed.2d 560 (1979); United States v. Davis, 623 F.2d 188, 195 (1st Cir. 1980); United States v. Indelicato, 611 F.2d 376, 384 (1st Cir. 1979); United States v. Mora, 598 F.2d 682, 683 (1st Cir. 1979). Where conspiracy is charged, the essential element to be proved is agreement. Ingram v. United States, 360 U.S. 672, 678, 79 S.Ct. 1314, 1319, 3 L.Ed.2d 1503 (1959); Pereira v. United States, 347 U.S. 1, 11, 74 S.Ct. 358, 364, 98 L.Ed. 435 (1954). A conspiratorial agreement may be proven by circumstantial as well as direct evidence, Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942). The Government need not exclude “every reasonable hypothesis inconsistent with guilt” with respect to each piece of circumstantial evidence. Rather, “the question is merely whether the total evidence, including reasonable inferences, when put together is sufficient to warrant the jury to conclude that defendant is guilty beyond a reasonable doubt.” Dirring v. United States, 328 F.2d 512, 515 (1st Cir. 1964). See also Holland v. United States, 348 U.S. 121, 139, 75 S.Ct. 127, 137, 99 L.Ed. 150 (1954). In this case, both sides agree that the Government’s strongest evidence of conspiracy between Patterson" }, { "docid": "23060143", "title": "", "text": "reasonable inferences and credibility choices made -'in the government’s favor. United States v. Pareja, 876 F.2d 1567, 1568 (11th Cir.1989). See Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942); United States v. Johnson, 713 F.2d 654, 661 (11th Cir.1983), cert. denied, 465 U.S. 1030, 104 S.Ct. 1295, 79 L.Ed.2d 695 (1984). It is not necessary that the evidence exclude every reasonable hypothesis of innocence or be wholly inconsistent with every conclusion except that of guilt, provided that a reasonable trier of fact could find that the evidence established guilt beyond a reasonable doubt. A jury is free to choose among the constructions of the evidence. United States v. Hardy, 895 F.2d 1331, 1334 (11th Cir.1990) (quoting United States v. Bell, 678 F.2d 547, 549 (5th Cir. Unit B 1982) (en banc), aff'd on other grounds, 462 U.S. 356, 103 S.Ct. 2398, 76 L.Ed.2d 638 (1983)). If, however, the record reveals a lack of substantial evidence from which a fact finder could find guilt beyond a reasonable doubt, we must reverse the defendant’s conviction. Kelly, 888 F.2d at 740. We apply these standards in reviewing Vegas’s claims. 1. Conspiracy pursuant to 21 U.S.C. § 846 To support Vegas’s conviction for conspiracy to distribute cocaine in violation of 21 U.S.C. § 846, the government must prove beyond a reasonable doubt that: (1) a conspiracy existed; (2) Vegas knew of the essential objectives of the conspiracy; and (3) Vegas knowingly and voluntarily participated in the conspiracy. United States v. Andrews, 953 F.2d 1312, 1318 (11th Cir.), cert. denied, — U.S. -, 112 S.Ct. 3007, 120 L.Ed.2d 882 (1992). To prove Vegas’s knowing and voluntary participation, “the Government must prove beyond a reasonable doubt that [he] had a deliberate, knowing, and specific intent to join the conspiracy.” United States v. Jenkins, 779 F.2d 606, 609 (11th Cir.1986). The jury is free to infer participation in the conspiracy from the defendant’s action or from circumstantial evidence of the scheme. United States v. Cross, 928 F.2d 1030 (11th Cir.), cert. denied, — U.S. -, 112 S.Ct. 594, 116" }, { "docid": "23060142", "title": "", "text": "at the house. Because the affidavit alleged ongoing activity and a continuing relationship between cocon-spirators, the information was not fatally stale. See Bascaro, 742 F.2d at 1346 (information supporting probable cause receives liberal treatment when large drug conspiracy is involved). B. Sufficiency of the evidence The grand jury indicted appellant Angelo Vegas for conspiracy to distribute cocaine, possession of cocaine with intent to distribute, and possession of a firearm in relation to a drug felony. The jury acquitted Vegas of the firearm charge, but convicted him of the two drug charges. On appeal, Vegas contends that the district court erred in denying his motion for judgment of acquittal because the government produced insufficient evidence to support his convictions. Whether the record contains sufficient evidence to support the jury’s verdict is a question of law that we review de novo. United States v. Kelly, 888 F.2d 732, 739 (11th Cir.1989). Although we conduct our review without special deference to the district court, we review the evidence in the light, most favorable to the government, with all reasonable inferences and credibility choices made -'in the government’s favor. United States v. Pareja, 876 F.2d 1567, 1568 (11th Cir.1989). See Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942); United States v. Johnson, 713 F.2d 654, 661 (11th Cir.1983), cert. denied, 465 U.S. 1030, 104 S.Ct. 1295, 79 L.Ed.2d 695 (1984). It is not necessary that the evidence exclude every reasonable hypothesis of innocence or be wholly inconsistent with every conclusion except that of guilt, provided that a reasonable trier of fact could find that the evidence established guilt beyond a reasonable doubt. A jury is free to choose among the constructions of the evidence. United States v. Hardy, 895 F.2d 1331, 1334 (11th Cir.1990) (quoting United States v. Bell, 678 F.2d 547, 549 (5th Cir. Unit B 1982) (en banc), aff'd on other grounds, 462 U.S. 356, 103 S.Ct. 2398, 76 L.Ed.2d 638 (1983)). If, however, the record reveals a lack of substantial evidence from which a fact finder could find guilt beyond a reasonable doubt," }, { "docid": "9837459", "title": "", "text": "reviewing the sufficiency of the evidence, we view the evidence in a light most favorable to the government and with all reasonable inferences and credibility choices made in support of the jury’s verdict. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 459, 86 L.Ed. 680 (1942). The standard of review inquires whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. United States v. Kim, 884 F.2d 189, 192 (5th Cir.1990); United States v. Nixon, 816 F.2d 1022, 1029 (5th Cir.1987), cert. denied, 484 U.S. 1026, 108 S.Ct. 749, 98 L.Ed.2d 762 (1988). When making such a determination, “ ‘[i]t is not necessary that the evidence exclude every reasonable hypothesis of innocence or be wholly inconsistent with every conclusion except that of guilt ... ’” United States v. Henry, 849 F.2d 1534, 1536 (5th Cir.1988) (quoting United States v. Bell, 678 F.2d 547, 549 (5th Cir.1982) (en banc), aff'd, 462 U.S. 356, 103 S.Ct. 2398, 76 L.Ed.2d 638 (1983)). A conviction for conspiracy under 18 U.S.C. § 371 requires that the government prove beyond a reasonable doubt 1) an agreement between two or more persons, 2) to commit a crime against the United States, and 3) an overt act committed by one of the conspirators in furtherance of the agreement. United States v. Yamin, 868 F.2d 130, 133 (5th Cir.), cert. denied, — U.S. —, 109 S.Ct. 3258, 106 L.Ed.2d 603 (1989); United States v. Wheeler, 802 F.2d 778, 780 (5th Cir.), cert. denied, 480 U.S. 908, 107 S.Ct. 1354, 94 L.Ed.2d 524 (1987); United States v. Ortiz-Loya, 777 F.2d 973, 981 (5th Cir.1985). No element need be proved by direct evidence, but may be inferred from circumstantial evidence. United States v. Robles-Pantoja, 887 F.2d 1250, 1254 (5th Cir.1989); United States v. Ayala, 887 F.2d 62, 67 (5th Cir.1989). An agreement may be inferred from “concert of action.” United States v. Arzola-Amaya, 867 F.2d 1504 (5th Cir.), cert. denied, — U.S. —, 110 S.Ct. 322, 107 L.Ed.2d 312 (1989). While the prosecution must show knowledge of and intent" }, { "docid": "22301753", "title": "", "text": "between the date the district court declared a mistrial and the date of the second trial, Green’s prosecution did not violate the Speedy Trial Act. Accordingly, we reject all of the defendants’ speedy trial claims. Ill Next, the defendants raise various arguments challenging the sufficiency of the evidence supporting their convictions or sentences. Our review for sufficiency of the evidence following a conviction is narrow. United States v. Lopez, 74 F.3d 575, 577 (5th Cir.), cert. denied, — U.S. -, 116 S.Ct. 1867, 134 L.Ed.2d 964 (1996). We will affirm if a rational trier of fact could have found that the evidence established the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2788-89, 61 L.Ed.2d 560 (1979). We must consider the evidence, all reasonable inferences drawn therefrom, and all credibility determinations in the light most favorable to the prosecution. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942). The evidence need not exclude every reasonable hypothesis of innocence or be wholly inconsistent with every conclusion except that of guilt, and the jury is free to choose among reasonable constructions of the evidence. United States v. Salazar, 66 F.3d 723, 728 (5th Cir.1995). If the evidence, though, gives equal or nearly equal circumstantial support to a theory of guilt and a theory of innocence, we will reverse the conviction, as under these circumstances a reasonable jury must necessarily entertain a reasonable doubt. United States v. Sanchez, 961 F.2d 1169, 1173 (5th Cir.), cert. denied, 506 U.S. 918, 113 S.Ct. 330, 121 L.Ed.2d 248 (1992). A Bledsoe, Peoples, and Green (though not Westbrook) contend that insufficient evidence supports their conspiracy convictions. To convict a defendant of conspiracy under 21 U.S.C. § 846, the government must prove beyond a reasonable doubt: (1) the existence of an agreement to violate the drug laws and that each co-conspirator (2) knew of, (3) intended to join, and (4) voluntarily participated in the conspiracy. United States v. Abadie, 879 F.2d 1260, 1265 (5th Cir.), cert. denied, 493 U.S. 1005," }, { "docid": "1387234", "title": "", "text": "v. Whittington, 783 F.2d 1210, 1216 (5th Cir.1986). This Court recognizes that it is the “ ‘sole province’ ” of the trier of fact “ ‘to weigh the evidence and the credibility of the witnesses.’ ” United States v. Martin, 790 F.2d 1215, 1219 (5th Cir.1986) (quoting United States v. Davis, 752 F.2d 963, 968 (5th Cir.1985)). We will hold that the evidence is sufficient to sustain the verdict if a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. United States v. Palella, 846 F.2d 977, 981 (5th Cir.), cert. denied, — U.S. -, 109 S.Ct. 162, 102 L.Ed.2d 133 (1988). When making such a determination, “ ‘[i]t is not necessary that the evidence exclude every reasonable hypothesis of innocence or be wholly inconsistent with every conclusion except that of guilt_’” United States v. Henry, 849 F.2d 1534, 1536 (5th Cir.1988) (quoting United States v. Bell, 678 F.2d 547, 549 (5th Cir.1982) (en banc), aff'd, 462 U.S. 356, 103 S.Ct. 2398, 76 L.Ed.2d 638 (1983)). We observe more generally that what the fact finder “is permitted to infer from the evidence in a particular case is governed by a rule of reason,” and that fact finders may properly “ ‘use their common sense’ ” and “ ‘evaluate the facts in light of their common knowledge of the natural tendencies and inclinations of human beings.’ ” Henry, 849 F.2d at 1537. Further, as the Supreme Court long ago remarked, “[circumstances altogether inconclusive, if separately considered, may, by their number and joint operation, especially when corroborated by moral coincidences, be sufficient to constitute conclusive proof.” Coggeshall v. United States (The Slavers), 69 U.S. (2 Wall.) 383, 17 L.Ed. 911, 914-15 (1865). To establish guilt of conspiracy to possess marihuana with intent to distribute under 21 U.S.C. §§ 841(a)(1) and 846, the United States must prove beyond a reasonable doubt the existence of an agreement that entails a violation of the narcotics laws, the defendants’ knowledge of the agreement, and their voluntary participation in it. The prosecution, however, does not need to present evidence" }, { "docid": "15529010", "title": "", "text": "to impeach the victim with the fact that he was not H.I.V. positive went to his general credibility and involved at most cumulative impeachment evidence, and would thus not support a finding of ineffective assistance of counsel. See United States v. Pagan, 829 F.Supp. 88, 92 (S.D.N.Y.1993). Petitioner is not entitled to habeas relief on his first claim. C. Claim # 2. The sufficiency of evidence claim. In his second claim, Petitioner contends that there was insufficient evidence to convict him because the victim’s credibility was inherently incredible. A habeas court reviews claims that the evidence at trial was insufficient for a conviction by asking whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Scott v. Mitchell, 209 F.3d 854, 885 (6th Cir.2000)(citing to Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). Because a claim of insufficiency of the evidence presents a mixed question of law and fact, this Court must determine whether the state court’s application of the Jackson standard was reasonable. Dell v. Straub, 194 F.Supp.2d at 647 (internal citation omitted). A reviewing court does not reweigh the evidence or redetermine the credibility of the witnesses whose demeanor has been observed by the trial court. Marshall v. Lonberger, 459 U.S. 422, 434, 103 S.Ct. 843, 74 L.Ed.2d 646 (1983). It is the province of the factfinder to weigh the probative value of the evidence and resolve any conflicts in testimony. Neal v. Morris, 972 F.2d 675, 679 (6th Cir.1992). In the present case, Petitioner claims that the evidence was insufficient because the victim’s testimony was “inherently incredible.” Attacks on witness credibility are simply challenges to the quality of the prosecution’s evidence, and not to the sufficiency of the evidence. Martin v. Mitchell, 280 F.3d 594, 618 (6th Cir.2002); cert. den. 537 U.S. 1004, 123 S.Ct. 515, 154 L.Ed.2d 1004 (2002)(inter-nal citation omitted). An assessment of the credibility of witnesses is generally beyond the scope of federal habeas review of sufficiency" }, { "docid": "22729362", "title": "", "text": "import and distribute three loads of cocaine between June and September, 1988. Whether the record contains sufficient evidence to support the jury’s verdict is a question of law that we review de novo. United States v. Harris, 20 F.3d 445, 452 (11th Cir.1994). Although the Court conducts its review without special deference to the district court, the evidence is viewed in the light most favorable to the government, with all reasonable inferences and credibility choices made in the government’s favor. Id.; See also, Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942); United States v. Johnson, 713 F.2d 654, 661 (11th Cir.1983), cert. denied, 465 U.S. 1030, 104 S.Ct. 1295, 79 L.Ed.2d 695 (1984). The verdict must stand if their is substantial evidence to support it, that is “unless no trier of fact could have found guilt beyond a reasonable doubt.” United States v. Battle, 892 F.2d 992, 998 (11th Cir.1990). It is not necessary that the evidence exclude every reasonable hypothesis of innocence or be wholly inconsistent with every conclusion except that of guilt, provided that a reasonable trier of fact could find that the evidence established guilt beyond a reasonable doubt. A jury is free to choose among the constructions of the evidence. United States v. Hardy, 895 F.2d 1331, 1334 (11th Cir.1990) (quoting United States v. Bell, 678 F.2d 547, 549 (5th Cir. Unit B 1982) (en banc), aff'd on other grounds, 462 U.S. 356, 103 S.Ct. 2398, 76 L.Ed.2d 638 (1983)). If, however, the record reveals a lack of substantial evidence from which a fact finder could find guilt beyond a reasonable doubt, we must reverse the defendant’s conviction. Kelly, 888 F.2d at 740. We apply these general standards in reviewing each of appellants’ sufficiency claims. A. Credibility Appellants first argue that the witnesses who testified against them were inherently incredible and, because their testimony represented the only evidence linking them to the charged crimes, that testimonial evidence was insufficient to establish their guilt beyond a reasonable doubt. Garcia contends that Sisino Torres had multiple prior convictions and admitted" }, { "docid": "22959537", "title": "", "text": "In considering such a challenge, we must view the evidence in the light most favorable to the government, crediting every inference that could have been drawn in the government’s favor, see, e.g., United States v. Locascio, 6 F.3d 924, 944 (2d Cir.1993), cert. denied, 511 U.S. 1070, 114 S.Ct. 1645, 128 L.Ed.2d 365 (1994), and “deferring] to the jury’s assessment of witness credibility,” United States v. Bala, 236 F.3d 87, 93 (2d Cir.2000), and its assessment of the weight of the evidence, see, e.g., United States v. Morrison, 153 F.3d 34, 49 (2d Cir.1998). The conviction must be upheld if “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (emphasis in original); see, e.g., United States v. Velasquez, 271 F.3d 364, 370 (2d Cir.2001) (a conviction may be overturned on the basis of insufficiency of the evidence only if, on the evidence viewed in the light most favorable to the government, with all inferences drawn and credibility assessments made in its favor, “ ‘no rational trier of fact could have found the essential elements of the crime charged beyond a reasonable doubt’ ” (quoting United States v. McDermott, 245 F.3d 133, 137 (2d Cir.2001))). These principles apply whether the evidence being reviewed is direct or circumstantial. See, e.g., Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942). In order to convict a defendant of conspiracy, the government must prove both the existence of the conspiracy alleged and the defendant’s membership in it beyond a reasonable doubt. See, e.g., United States v. Huezo, 546 F.3d 174, 180 (2d Cir.2008). The essence of any conspiracy is, of course, agreement, and in order to establish a conspiracy, the government must show that two or more persons entered into a joint enterprise with consciousness of its general nature and extent. See, e.g., United States v. Alessi, 638 F.2d 466, 473 (2d Cir.1980). To establish a particular defendant’s membership in the alleged conspiracy, the government must" }, { "docid": "22126427", "title": "", "text": "packages, an arrest signal was given. The agents found Martha’s purse empty except for a set of keys to the silver and black pickup truck and a small light bulb from the interior light of an automobile. Investigators determined later that the silver and black pickup truck belonged to Edison Ortiz. Agents also recovered a pistol and a supply of ammunition as well as Luz Maria’s identification and other papers in a subsequent search of the silver and black pickup truck. ANALYSIS 1. Standard of Review In reviewing an appeal based on insufficient evidence, the standard is whether any reasonable trier of fact could have found that the evidence established the appellant’s guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); United States v. Casilla, 20 F.3d 600, 602 (5th Cir.), cert. denied, — U.S. -, 115 S.Ct. 240, 130 L.Ed.2d 163 (1994). The jury retains sole responsibility for determining the weight and credibility of the evidence. Casilla, 20 F.3d at 602. As such, we must construe all reasonable inferences from the evidence in favor of the verdict. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942); Casilla, 20 F.3d at 206. A review concentrates on whether the trier of fact made a rational decision to convict or acquit, not whether the fact finder correctly determined the defendant’s guilt or innocence. United States v. Omelas-Rodriguez, 12 F.3d 1339, 1344 (5th Cir.), cert. denied, — U.S. -, 114 S.Ct. 2713, 129 L.Ed.2d 839 (1994). Further, the evidence need not exclude every reasonable hypothesis of innocence. United States v. Velgar-Vivero, 8 F.3d 236, 239 (5th Cir.1993), cert. denied, — U.S. -, 114 S.Ct. 1865, 128 L.Ed.2d 486 (1994). However, we must reverse a conviction if the evidence construed in favor of the verdict “gives equal or nearly equal circumstantial support to a theory of guilt and a theory of innocence of the crime charged.” United States v. Menesses, 962 F.2d 420, 426 (5th Cir.1992) (citing Clark v. Procunier, 755 F.2d 394, 396 (5th Cir.1985)" }, { "docid": "7808872", "title": "", "text": "all the counts of his indictment with respect to intent. Under § 152(1) & (3), the prosecution must show that the concealment or false statement was made “knowingly and fraudulently.” Cluck argues, essentially, that the evidence showed only that he was careless in providing information to his bankruptcy attorney, not that he committed intentional fraud. In assessing sufficiency, we review the evidence in the light most favorable to the jury verdict. United States v. Willey, 57 F.3d 1374, 1380 (5th Cir.1995). All credibility determinations and reasonable inferences will be resolved in favor of the verdict, and the evidence will be found sufficient unless it was not such as could lead a rational fact-finder to conclude that the essential elements of the crime had been proved beyond a reasonable doubt. Nguyen, 28 F.3d at 480. In applying this requirement, “[i]t is not necessary that the evidence exclude every reasonable hypothesis of innocence or be wholly inconsistent with every conclusion except that of guilt.” United States v. Bell, 678 F.2d 547, 549 (5th Cir.1982) (en banc), aff'd on other grounds, 462 U.S. 356, 103 S.Ct. 2398, 76 L.Ed.2d 638 (1983). In particular, the court must keep firmly in mind that “what the fact finder ‘is permitted to infer from the evidence in a particular case is governed by a rule of reason.’” United States v. Henry, 849 F.2d 1534, 1537 (5th Cir.1988) (quoting United States v. Cruz-Valdez, 773 F.2d 1541, 1546 (11th Cir.1985) (en banc)). Fact-finders may properly “ ‘use their common sense’ ” and “ ‘evaluate the facts in light of their common knowledge of the natural tendencies and inclinations of human beings.’ ” Id. Furthermore, it is well established that “ ‘[circumstances altogether inconclusive, if separately considered, may, by their number and joint operation, especially when corroborated by moral coincidences, be sufficient to constitute conclusive proof.’ ” United States v. Ayala, 887 F.2d 62, 67 (5th Cir.1989) (quoting The Slavers (Reindeer), 69 U.S. (2 Wall.) 383, 401, 17 L.Ed. 911 (1864)). In this case, it is manifestly clear that Cluck’s repeated omissions and history of coincidental and questionable transfers formed" }, { "docid": "22212217", "title": "", "text": "an appellant making such a challenge bears a very heavy burden. A conviction must be allowed to stand if, “after viewing the evidence in the light most favorable to the prosecution,” the reviewing court finds that “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979) (emphasis in original). “The jury must have a full opportunity to determine credibility, weigh the evidence, and draw justifiable inferences of fact, ... and all permissible inferences must be construed in favor of the government.” United States v. Martino, 759 F.2d 998, 1002 (2d Cir.1985) (citation omitted). If “substantial evidence” exists to support a verdict, it must be sustained, United States v. Zabare, 871 F.2d 282, 286 (2d Cir.), cert. denied, 493 U.S. 856, 110 S.Ct. 161, 107 L.Ed.2d 119 (1989) (quoting Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942)); “the evidence need not have excluded every possible hypothesis of innocence.” United States v. Soto, 716 F.2d 989, 993 (2d Cir.1983). “Further, a reviewing court must view pieces of evidence not in isolation but in conjunction.” United States v. Casamento, 887 F.2d 1141, 1156 (2d Cir. 1989), cert. denied, 495 U.S. 958, 110 S.Ct. 2564, 109 L.Ed.2d 746 (1990). The above-mentioned standard of deference is especially important when reviewing a conviction of conspiracy. United States v. Nusraty, 867 F.2d 759, 762 (2d Cir.1989). This is so because a conspiracy by its very nature is a secretive operation, and it is a rare case “where all aspects of a conspiracy can be laid bare in court with the precision of a surgeon’s scalpel.” United States v. Provenzano, 615 F.2d 37, 45 (2d Cir.), cert. denied, 446 U.S. 953, 100 S.Ct. 2921, 64 L.Ed.2d 810 (1980). The existence of and participation in a conspiracy may be established through circumstantial evidence. Soto, 716 F.2d at 991. However, “there must be some evidence from which it can reasonably be inferred that the person charged with conspiracy knew" }, { "docid": "9576395", "title": "", "text": "standard for determining sufficiency of the evidence on habeas review is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found proof of guilt beyond a reasonable doubt. United States ex rel. Wandick v. Chrans, 869 F.2d 1084, 1089 (7th Cir.1989), citing Jackson, 443 U.S. at 319, 99 S.Ct. at 2789. Kines argues that because the trial court felt the need to examine corroborating evidence to determine the veracity of the only eyewitness testimony, from eleven-year-old Cornell Finley, and because that corroborating evidence failed to implicate Kines, finding proof beyond a reasonable doubt must be irrational. Not only could any rational trier of fact have found proof beyond a reasonable doubt, the reasoning the trial court expressed on the record is quite logical. The trial court carefully explained that given the detailed nature of Cornell’s testimony, the close fit between his testimony and the physical evidence, the explanation for his prior inconsistent accounts, and the lack of a motive to lie in court (and indeed the countervailing motive to exculpate a family friend), it believed Cornell’s testimony inculpating Kines. The lack of physical evidence inculpating Kines in no way makes the fact finder’s belief of Cornell irrational. The trial judge concluded that the prosecution had proved its case beyond a reasonable doubt because he believed Cornell’s account of the events. Federal courts are in no position to redetermine the credibility of witnesses observed by state trial courts. Chmns, 869 F.2d at 1089, citing Marshall v. Lonberger, 469 U.S. 422, 434, 103 S.Ct. 843, 860, 74 L.Ed.2d 646 (1983). Because a single witness can suffice to prove guilt beyond a reasonable doubt, Chrans, 869 F.2d at 1089, the district court correctly held that any rational trier of fact could have arrived at the same conclusion as the trial court. C. Sixth Amendment Right to Effective Assistance of Counsel Kines finally argues that his trial counsel was ineffective by failing timely to present an expert witness who would have testified that the victim died in the basement. Under Strickland v. Washington," }, { "docid": "13525732", "title": "", "text": "four counts of distribution and possession of cocaine with intent to distribute. Williams was convicted on one count of conspiracy and two counts of distribution and possession with intent to distribute cocaine. ANALYSIS 1. Whether the evidence was sufficient to support the convictions of Casel, Reed, Williams and Jackson? An appellate court reviews the evidence if possible in a manner consistent with the verdict. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942) (“The verdict of the jury must be sustained if there is substantial evidence, taking the view most favorable to the Government, to support it”) (citations omitted); United States v. Fortna, 796 F.2d 724, 740 (5th Cir.) (“[W]e must examine all the evidence and reasonable inferences in the light most favorable to the government and determine whether a reasonable trier of fact could find that the evidence establishes guilt beyond a reasonable doubt”) (citations omitted), cert. denied, 479 U.S. 950, 107 S.Ct. 437, 93 L.Ed.2d 386 (1986); United States v. Bell, 678 F.2d 547, 549 (5th Cir.) (“It is not necessary that the evidence exclude every reasonable hypothesis of innocence or be wholly inconsistent with every conclusion except guilt.... A jury is free to choose among reasonable constructions of the evidence”), aff'd, 462 U.S. 356, 103 S.Ct. 2398, 76 L.Ed.2d 638 (1983). The appellate court’s role does not extend to weighing the evidence or assessing the credibility of witnesses. Bell, 678 F.2d at 549; United States v. Martin, 790 F.2d 1215, 1219 (5th Cir.), cert, denied, 479 U.S. 868, 107 S.Ct. 231, 93 L.Ed.2d 157 (1986); United States v. Varca, 896 F.2d 900, 905 (5th Cir.), cert. denied, 498 U.S. 878, 111 S.Ct. 209, 112 L.Ed.2d 170 (1990); United States v. Espinoza-Franco, 668 F.2d 848, 851 (5th Cir.1982). If a rational trier of fact could have found the defendant guilty beyond a reasonable doubt of the essential elements of the offense, then the conviction must be upheld. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (habeas review of state court conviction); United States v. Straach, 987" }, { "docid": "8731100", "title": "", "text": "S.Ct. 1349, 51 L.Ed.2d 642 (1977). In this case, the result of a successful appeal is not retrial of factual issues of guilt or innocence but a reinstatement of the jury’s verdict. See United States v. Scott, 437 U.S. 82, 91 n. 7, 98 S.Ct. 2187, 2194 n. 7, 57 L.Ed.2d 65 (1978) (quoting United States v. Jenkins, 420 U.S. 358, 365, 95 S.Ct. 1006, 1010-11, 43 L.Ed.2d 250 (1975)). Consequently, the Double Jeopardy Clause does not bar appellate review, and section 3731 provides this Court with jurisdiction over this appeal. See, e.g., United States v. Greer, 850 F.2d 1447, 1449-50 (11th Cir.1988). In deciding a motion for entry of judgment of acquittal under Fed.R.Crim.P. 29(c), district courts should apply the same standard as that used for reviewing a conviction for sufficiency of the evidence. United States v. Cole, 755 F.2d 748, 763-64 (11th Cir.1985). The Court must view the evidence in the light most favorable to the government, Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942), and determine whether a reasonable jury could have found the defendant guilty beyond a reasonable doubt. United States v. O’Keefe, 825 F.2d 314, 319 (11th Cir.1987). The prosecution need not rebut all reasonable hypotheses other than guilt. United States v. Bell, 678 F.2d 547, 549 (5th Cir.Unit B 1982) (en banc) (“It is not necessary for the evidence to exclude every reasonable hypothesis of innocence or be wholly inconsistent with every conclusion except that of guilt, provided a reasonable trier of fact could find that the evidence establishes guilt beyond a reasonable doubt.”) (footnote omitted), aff'd on other grounds, 462 U.S. 356, 103 S.Ct. 444, 74 L.Ed.2d 600 (1983). The jury is free to choose between or among the reasonable conclusions to be drawn from the evidence presented at trial, id., and the court must accept all reasonable inferences and credibility determinations made by the jury. United States v. Sanchez, 722 F.2d 1501, 1505 (11th Cir.), cert. denied, 467 U.S. 1208, 104 S.Ct. 2396, 81 L.Ed.2d 353 (1984); see generally United States v. Goggin, 853" }, { "docid": "21043810", "title": "", "text": "abettor, committed arson. (2) The evidence was insufficient to show that Triplett served as an accessory after the fact in connection with Snyder’s offense. (3) The district court erred by finding that certain statements made by Snyder were admissible as admissions against his penal interests and as statements made in furtherance of a non-charged conspiracy. (4) The district court erred by refusing to permit Triplett to elicit expert testimony as to whether his ingesting of controlled substances would cause him to become enraged. (5) The district court abused its discretion by refusing to permit Triplett to impeach a government witness regarding an alleged suicide attempt by that witness. A. Whether the evidence was sufficient to support a verdict that Triplett, either as a principal or an aider and abettor, committed arson. The standard of review that this Court applies in reviewing sufficiency of the evidence claims is whether, after viewing the evidence presented and all inferences that may reasonably be drawn from it in the light most favorable to the prosecution, any reasonably-minded jury could have found that the defendant was guilty beyond a reasonable doubt. See Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942); Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 2788-89, 61 L.Ed.2d 560 (1979); United States v. Roberts, 913 F.2d 211, 217 (5th Cir.1990); United States v. Anchondo-Sandoval, 910 F.2d 1234, 1236 (5th Cir.1990); United States v. Kim, 884 F.2d 189, 192 (5th Cir.1989); United States v. Ortiz-Loya, 777 F.2d 973, 979 (5th Cir.1985). The evidence need not “exclude every reasonable hypothesis of innocence or be wholly inconsistent with every conclusion except that of guilt, provided a reasonable trier of fact could find that the evidence establishes guilt beyond a reasonable doubt.” United States v. Bell, 678 F.2d 547, 549 (5th Cir.1982) (en banc), aff'd on other grounds, 462 U.S. 356, 103 S.Ct. 2398, 76 L.Ed.2d 638 (1983). See also United States v. Ascarrunz, 838 F.2d 759, 763 (5th Cir.1988). To uphold Triplett’s conviction and sentence for violating 18 U.S.C. § 844(i), this Court must find" }, { "docid": "3193320", "title": "", "text": "claim, the Michigan Court of Appeals noted that the evidence indicated that petitioner began shooting as the victim was retreating. There was no evidence that the victim was actually armed and the evidence of whether the victim appeared to be drawing a weapon was conflicting. Viewing the evidence in a light most favorable to the prosecution, the Michigan Court of Appeals concluded that petitioner had the requisite intent for second degree murder. People v. Johnson, Slip. Op. at * 2. When viewing the evidence in a light most favorable to the prosecution, there was sufficient evidence to conclude that petitioner committed second degree murder and did not act in self-defense. The jury chose to believe Dickerson’s testimony and rejected petitioner’s testimony that he acted in self-defense. A reviewing court does not re-weigh the evidence or redetermine the credibility of the witnesses whose demeanor has been observed by the trial court. Marshall v. Lonberger, 459 U.S. 422, 434, 103 S.Ct. 843, 74 L.Ed.2d 646 (1983); Kines v. Godinez, 7 F.3d 674, 678 (7th Cir.1993). It is the province of the fact finder to weigh the probative value of the evidence and resolve any conflicts in testimony. Neal v. Morris, 972 F.2d 675, 679 (6th Cir.1992). The jury’s resolution of questions of credibility and demeanor is entitled to special deference. Brown v. Davis, 752 F.2d 1142, 1147 (6th Cir.1985). In reviewing a sufficiency of evidence claim, this Court must draw all available inferences and resolve all credibility issues in favor of the jury’s verdict. Spalla v. Foltz, 615 F.Supp. 224, 227 (E.D.Mich.1985)(Cohn, J.); aff'd 788 F.2d 400 (6th Cir.1986); cert. den. 479 U.S. 935, 107 S.Ct. 410, 93 L.Ed.2d 362 (1986). In the present case, petitioner has failed to demonstrate the incorrectness of the state court’s findings on the issue of self defense by clear and convincing evidence, in light of the deference to be accorded to state-court fact-finding, as well as the traditional deference accorded to the jury’s resolution of disputed factual issues. See Seymour v. Walker, 224 F.3d 542, 551-552 (6th Cir.2000); cert. den. — U.S. -, 121 S.Ct. 1643," }, { "docid": "9579619", "title": "", "text": "“cause and prejudice” for his default and, thus, the claim is procedurally barred. However, to complete the record, on the merits, the claim is denied. The petitioner argues that “[a] review of the trial transcript would reveal that there was an insufficient quantum of evidence to support Mr. Rustici’s conviction on” the charge of Second Degree Murder on a theory of depraved indifference to human life. As with other grounds for relief raised in this petition, a petitioner who challenges the sufficiency of the evidence supporting his conviction “bears a heavy burden.” United States v. Griffith, 284 F.3d 338, 348 (2d Cir.2002) (citing United States v. Velasquez, 271 F.3d 364, 370 (2d Cir.2001)). To obtain habeas corpus relief, the Court must find that, when viewing the evidence most favorably to the prosecution, no rational trier of fact could find guilt beyond a reasonable doubt. Farrington v. Senkowski 214 F.3d 237, 240-41 (2d Cir.2000) (citing Jackson v. Virginia, 443 U.S. 307, 324, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). In addition, the Court must defer to the jury’s determination of the weight given to conflicting evidence, witness credibility, and inferences drawn from the evidence. United States v. Vasquez, 267 F.3d 79, 90-91 (2d Cir.2001) (citing Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942); United States v. Payton, 159 F.3d 49, 56 (2d Cir.1998)). A guilty verdict may not be disturbed if the jury has resolved these issues in a reasonable manner. See id. The Court’s “inquiry does not focus on whether the trier of fact made the correct guilt or innocence determination, but rather whether it made a rational decision to convict or acquit.” Herrera v. Collins, 506 U.S. 390, 402, 113 S.Ct. 853, 861, 122 L.Ed.2d 203 (1993). A federal habeas court must “credit every inference that could have been drawn in the state’s favor ... whether the evidence being reviewed is direct or circumstantial.” Reddy v. Coombe, 846 F.2d 866, 869 (2d Cir.1988). Applying the above standard, the Court finds that the evidence amply supports the petitioner’s Second Degree Murder conviction. As" }, { "docid": "22350893", "title": "", "text": "108 (2d Cir.), cert. denied, 474 U.S. 923, 106 S.Ct. 258, 88 L.Ed.2d 264 (1985); United States v. Losada, 674 F.2d 167, 173 (2d Cir.), cert. denied, 457 U.S. 1125, 102 S.Ct. 2945, 73 L.Ed.2d 1341 (1982). In reviewing sufficiency, we must view the evidence in the light most favorable to the government, Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469-70, 86 L.Ed. 680 (1942), crediting every inference that could have been drawn in the government’s favor, United States v. Bagaric, 706 F.2d at 64; United States v. Carson, 702 F.2d 351, 361 (2d Cir.), cert. denied, 462 U.S. 1108, 103 S.Ct. 2456, 77 L.Ed.2d 1335 (1983), and we must affirm the conviction so long as, from the inferences reasonably drawn, the jury might fairly have concluded guilt beyond a reasonable doubt, United States v. Buck, 804 F.2d at 242; United States v. Taylor, 464 F.2d 240, 244-45 (2d Cir.1972). These principles apply whether the evidence being reviewed is direct or circumstantial. See Glasser v. United States, 315 U.S. at 80, 62 S.Ct. at 469-70; United States v. Tutino, 883 F.2d at 1129 (existence of and participation in a conspiracy with the requisite criminal intent may be established through circumstantial evidence). Pieces of evidence must be viewed not in isolation but in conjunction. United States v. Brown, 776 F.2d 397, 403 (2d Cir.1985), cert. denied, 475 U.S. 1141, 106 S.Ct. 1793, 90 L.Ed.2d 339 (1986); United States v. Geaney, 417 F.2d 1116, 1121 (2d Cir.1969), cert. denied, 397 U.S. 1028, 90 S.Ct. 1276, 25 L.Ed.2d 539 (1970). The weight of the evidence is a matter for argument to the jury, not a ground for reversal on appeal. See, e.g., United States v. Roman, 870 F.2d 65, 71 (2d Cir.), cert. denied, 490 U.S. 1109, 109 S.Ct. 3164, 104 L.Ed.2d 1026 (1989). The conviction must be upheld if “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979) (emphasis in original). Maldonado has not" }, { "docid": "23555233", "title": "", "text": "Analysis Martinez appeals his conviction on insufficiency of evidence grounds. The standard of review for sufficiency of evi dence is whether any reasonable trier of fact could have found that the evidence established guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); United States v. Anderson, 933 F.2d 1261, 1274 (5th Cir.1991). All reasonable inferences from the evidence must be construed in favor of the jury verdict. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942). Determining the weight and credibility of the evidence is within the sole province of the jury. United States v. Pena, 949 F.2d 751, 756 (5th Cir.1991). An appellate court will not supplant the jury’s determination of credibility with that of its own. United States v. Barron, 707 F.2d 125, 127 (5th Cir.1983). The jury in this case chose not to believe Martinez’s testimony. All of the evidence together meets the sufficiency threshold to uphold the conviction. “Circumstances altogether inconclusive, if separately considered, may, by their number and joint operation, especially when corroborated by moral coincidences, be sufficient to constitute conclusive proof.” Coggeshall v. United States (The Slavers, Reindeer), 69 U.S. (2 Wall.) 383, 17 L.Ed 911, 914-15 (1865). The government had to prove three elements to convict of drug conspiracy: 1) the existence of an agreement to possess with intent to distribute cocaine, 2) Martinez’s knowledge of that agreement and 3) Martinez’s voluntary participation. United States v. Alvarado, 898 F.2d 987, 992 (5th Cir.1990). There was enough evidence to prove all three elements. First there was the rental agreement in Rubio’s possession and Rubio’s testimony that he was supposed to deliver the car directly to Martinez in New Orleans and that when Martinez had spoken to him on the phone in Miami, Martinez had stated that he wanted to fly instead of driving back. Baralt, a defense witness and prior attorney for Martinez, confirmed that indeed Martinez had told him that he wanted to fly in from Miami and that he was expecting delivery of the" } ]

[ { "docid": "196480", "title": "", "text": "HARPER, Senior District Judge. On July 26, 1970, the plaintiff-appellant, Scot L. Robertson, was assessed $47,800.00 under the Marijuana Transfer Tax Act, 26 U.S.C. § 4741 (repealed by Act Oct. 27,1970, P.L. 91-513, 84 Stat. 1292). This assessment arose out of the appellant’s conviction for possession of marijuana in the State of Indiana in 1969, wherein 477.5 ounces of marijuana were confiscated from him. A lien was placed upon the Helen L. Robertson Trust at City National Bank, Kankakee, Illinois, of which Robertson is a beneficiary. Robertson filed suit in the District Court to enjoin the execution of the lien against the trust account and collection of the assessment. The District Court dismissed Robertson’s complaint for injunctive relief against the United States, holding that injunctive relief is prohibited by the Anti-Injunction Statute, 26 U.S.C. § 7421. This appeal followed. We reverse and remand. In Tovar v. Jarecki, 173 F.2d 449 (7th Cir. 1949) this Court held that the Anti-Injunction Statute did not apply to an action to collect an assessment under the Marijuana Transfer Tax. The Court observed that the transfer tax was penal in nature, and not enacted as a revenue-raising statute. As such, the Anti-Injunction Statute of the Internal Revenue Code had no application and a court of equity could enjoin the assessment and collection of such a penalty. Tovar v. Jarecki, supra, at 451. The decision in Tovar was based on the Supreme Court’s decision in Lipke v. Lederer, 259 U.S. 557, 42 S.Ct. 549, 66 L.Ed. 1061 (1922). Tovar v. Jarecki, supra, at 451. In Lipke, the Supreme Court held a liquor tax during Prohibition was in reality a penalty. It went on to state at 259 U.S. 562, 42 S.Ct. 551: “Before collection of taxes levied by statutes enacted in plain pursuance of the taxing power can be enforced, the taxpayer must be given fair opportunity for hearing; this is essential to due process of law. And certainly we cannot conclude, in the absence of language admitting of no other construction, that Congress intended that penalties for crime should be enforced through the secret findings" } ]

[ { "docid": "7973397", "title": "", "text": "de novo, “as if the agency’s decision had been appealed to this court directly.” Gerber v. Norton, 294 F.3d 173, 178 (D.C.Cir.2002) (internal quotation marks omitted). II. Prime Time contends that USDA’s interpretation of the Fair and Equitable Tobacco Reform Act is contrary to ordinary construction and plain meaning of the word “volume” in the phrase “gross domestic volume,” which is defined in section 518d(a)(2) as the “volume of tobacco products — removed (as defined by section 5702 of Title 26)” and “not exempt from tax” pursuant to provisions not relevant to this appeal, supra note 1. It observes that where statutory terms, such as “volume” here, are not defined in a statute, courts give them their ordinary meaning, citing Asgrow Seed Co. v. Winterboer, 513 U.S. 179, 187, 115 S.Ct. 788, 130 L.Ed.2d 682 (1995). USDA responds that “volume” is “clearly explained” in FETRA to mean the number of cigars because section 518d(g)(3) provides that the number of cigars determines the “volume of domestic sales” and thus “market share” under section 518d(f). Prime Time replies that under USDA’s elastic construction it has calculated the cigar class’s share of gross domestic volume at step one by separately calculating the excise tax paid on large and small cigars and then adding the two amounts. See 70 Fed.Reg. 7007, 7008 (Table 1) (Feb. 10, 2005). But then, at step two, USDA calculates the market shares for individual manufacturers and importers based on their share of the “commingled number of large and small cigars.” Reply Br. 5. This skips a necessary step, Prime Time maintains, because FETRA requires that the allocation within a tobacco class be “on a pro rata basis” with “[n]o manufacturer or importer ... required to pay an assessment that is based on a share that is in excess of the manufacturer’s or importer’s share of domestic volume.” 7 U.S.C. § 518d(e). Therefore, it argues, after allocating the assessment by class of tobacco products, USDA should divide the cigar class assessment into sub-classes of large and small cigars, with the relative allocation determined by total weight, and then divide the" }, { "docid": "1864144", "title": "", "text": "The Court therefore must address the question of whether the Section 4980H assessment is a tax for purposes of the, Anti-Injunction Act. See Alexander v. “Americans United” Inc., 416 U.S. at 760, 94 S.Ct. 2053 (adopting broad interpreta tion of AIA’s “suit for the purpose of restraining the assessment or collection of any tax” language). In Nat’l Fed’n of Indep. Bus., the Supreme Court held that the label that Congress gives to an assessment collected by the IRS matters' for purposes of the AIA. Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S.Ct. at 2583. Chief Justice Roberts, writing for a majority of the Court, explained: “The Anti-Injunction Act and the Affordable Care Act ... are creatures of Congress’s own creation. How they relate to each other is up to Congress, and the best evidence of Congress’s intent is the statutory text.” Id. He then concluded that the penalty imposed on individuals who fail to obtain minimum coverage under -26 U.S.C. § 5000A — though a tax for constitutional purposes — was not a tax for purposes of the Anti-Injunction Act. Id. at 2583-84. Why not? Because Congress consistently used the term “penalty” rather than the term “tax” in describing the Section 5000H exaction. Id. By contrast, other payments imposed under the ACA were expressly described by Congress as “taxes,” id. at 2583, and the statute’s “consistent distinction between the terms ‘tax’ and ‘assessable penalty’ ” reflected an intent to distinguish these two exactions for purposes of the AIA. Id. at 2584. Unlike the Section 5000A “assessable penalty” examined by the Supreme Court in Nat’l Fed. of Indep. Business, the Section 4980H assessment is described at various places in the statutory text both as an “assessable payment” and as a “tax.” In Section 4980H itself, the fee is called an “assessable payment” seven times and a “tax” . twice. See 26 U.S.C. § 4980H(b)(l)(B) (referring to “assessable payment”); Section 4980H(c)(2)(D)(i)(I) (same); Section 4980H(d) (referring to “assessable payment” four times); Section 4980H(b)(2) (referring to the “aggregate amount of tax determined” that an employer must pay); Section 4980H(c)(7) (referring to the “denial" }, { "docid": "1864143", "title": "", "text": "even suits with possible merit, would so interrupt the free flow of revenues as to jeopardize the Nation’s fiscal stability.” Id. (quoting Alexander v. “Americans United” Inc., 416 U.S. at 769, 94 S.Ct. 2053 (Blackmun, J., dissenting)). The AIA “has ‘almost literal effect’: It prohibits only those suits seeking to restrain the assessment or collection of taxes.” Id. (quoting Bob Jones Univ. v. Simon, 416 U.S. at 737, 94 S.Ct. 2038). The AIA applies regardless of whether its application results in uncertainty or hardship for the taxpayer. Bob Jones Univ. v. Simon, 416 U.S. at 745, 94 S.Ct. 2038; Alexander v. “Americans United” Inc., 416 U.S. at 762, 94 S.Ct. 2053. Although the employer plaintiffs are challenging the legality of a regulation governing tax credits, not a tax collection, they do so in order to restrain the IRS from assessing the payments described in 26 U.S.C. § 4980H, which are triggered by the award of tax credits to their employees. In fact, their theory of injury hinges on this relationship. See Pis.’ SJ Opp. 38-41. The Court therefore must address the question of whether the Section 4980H assessment is a tax for purposes of the, Anti-Injunction Act. See Alexander v. “Americans United” Inc., 416 U.S. at 760, 94 S.Ct. 2053 (adopting broad interpreta tion of AIA’s “suit for the purpose of restraining the assessment or collection of any tax” language). In Nat’l Fed’n of Indep. Bus., the Supreme Court held that the label that Congress gives to an assessment collected by the IRS matters' for purposes of the AIA. Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S.Ct. at 2583. Chief Justice Roberts, writing for a majority of the Court, explained: “The Anti-Injunction Act and the Affordable Care Act ... are creatures of Congress’s own creation. How they relate to each other is up to Congress, and the best evidence of Congress’s intent is the statutory text.” Id. He then concluded that the penalty imposed on individuals who fail to obtain minimum coverage under -26 U.S.C. § 5000A — though a tax for constitutional purposes — was not a tax" }, { "docid": "19223639", "title": "", "text": "of the Tobacco Transition Payment Program through the Assessments. As a result, this Court holds that FETRA Assessments satisfy the public purpose element of the Lorber Test as adopted by the Second Circuit in Chateaugay. In function and effect, FETRA Assessments represent excise taxes on Debt- or’s business of importing and distributing tobacco products. Therefore, this Court concludes that FETRA Assessments constitute “excise taxes” for pxxrposes of priority under § 507(a)(8)(E)(ii). III. When Do FETRA Assessments Accrue Having found that FETRA Assessments are excise taxes and entitled to eighth priority status under § 507(a)(8)(E)(ii) for prepetition Assessments, the next question is when do FETRA Assessments accrue. The answer to this question is critical because § 507(a)(8)(E)(ii) only permits a priority claim for “an excise tax on ... a transaction occurring during the three years immediately preceding the date of the filing of the petition.” For purposes of § 507(a)(8) and § 503(b) (which is discussed in Part IV below), most comets have held that “a tax is incurred when it accrues and becomes a fixed liability.... A tax obligation accrues when the event triggering liability occurs.” In re Federated Dep’t Stores, Inc., 270 F.3d 994, 1001 (6th Cir.2001); see In re Soltan, 234 B.R. 260, 269-71 (Bankr.E.D.N.Y.1999); In re Bondi’s Valu-King, Inc., 126 B.R. 47 (N.D.Ohio 1991). Debtor argues that no part of USDA’s claim for prepetition unpaid FETRA Assessments is entitled to priority status under § 507(a)(8)(E)(ii) because all FETRA Assessments accraed “on March 30, 2005,” the date that Debtor states that FETRA became effective. Reply at ¶ 3. [dkt item 24] Debtor asserts that FETRA “fixed the total amount to be paid as assessments as of its effective date.” Id. Therefore, Debt- or argues, USDA’s entire claim accrued more than three years prior to the Petition Date, and no part of USDA’s claim is entitled to priority status under § 507(a)(8)(E)(ii). Id. As a preliminary matter, the Court notes that FETRA became effective on October 22, 2004, and imposed retroactive obligations commencing October 1, 2004. See Pub.L. No. 108-357, Title VI, § 643, 118 Stat. 1536 (Oct. 22," }, { "docid": "7973403", "title": "", "text": "company sales volumes” to challenge their assessments. While these provisions do not require USDA to accept such non-“removal” data or change an assessment based on it, USDA would be advised on remand to offer an explanation in response to Prime Time’s argument that the discrepancy in results indicated USDA’s data and calculations were inaccurate. For the relevant period, the A.C. Nielsen data showed Prime Time’s market share was between 1.05% and 2.5% as compared to between 4.81% and 7.78% computed by USDA. In ruling on Prime Time’s administrative appeal, the Secretary pointed out that A.C. Nielsen data “is aeross-the-counter ‘sales’ data,” tracking the number of cigars sold at the point of sale, while under FETRA “[mjarket shares ... are computed based on tobacco product ‘removal’ data.” Letter Decision at 6; see 7 U.S.C. § 518d(a)(3), (g)(2), (a)(2). Because FE-TRA adopted the definition of “removal” in 26 U.S.C. § 5702, supra note 2, the Secretary concluded USDA had to rely on excise tax and customs forms that report data on “removal.” By contrast, because A.C. Nielsen’s over-the-counter sales data does not track “removal,” it “[is] not (and will not be) synonymous” with “removal” data. Letter Decision at 6. USDA was not required to provide more of an explanation for rejecting Prime Time’s suggestion it use A.C. Nielsen data instead of “removal” data. See Tourus Records, Inc. v. Drug Enforcement Admin., 259 F.3d 731, 737 (D.C.Cir.2001). Still, the discrepancy is troubling and inasmuch as the Secretary’s explanation was based on his view that section 518d(g)(3)(A) was dispositive, we leave open the question whether, upon remand, A.C. Nielsen data may assume significance should Prime Time renew its argument. We do not address Prime Time’s contention that its due process rights were violated when USDA refused to disclose the tax and customs data underlying its FETRA assessments. On appeal USDA advises that, with Treasury Department agreement, certain previously unavailable industry-wide data sought by Prime Time can now be disclosed without running afoul of the tax confidentiality statute, 26 U.S.C. § 6103. See Appellees’ Br. 34; 7 C.F.R. § 1463.8(b)(8). Any due process challenge would" }, { "docid": "19223638", "title": "", "text": "known public health dangers of tobacco products. Nevertheless, this Court recognizes that Congress expressed a public benefit to unwinding the system of quotas and price controls that apparently made approxi mately 450,000 U.S. Tobacco Growers dependent upon subsidies for growing tobacco, and that CCC payments are meant to wean these growers off those subsidies as they transition to a free market. As the Eleventh Circuit pointed out, this benefits not only U.S. Tobacco Growers, but also Tobacco Manufacturers, like Debtor, and the industry as a whole. Therefore, despite some reservations expressed above, this Court concludes that FETRA has a public purpose as follows: (1) stabilizing U.S. Tobacco Growers and the tobacco industry as a whole during the ten-year period of transition from a heavily regulated industry to a free market; (2) enabling U.S. Tobacco Growers that opt not to complete in the free market to grow other products or find alternative jobs; (8) making the tobacco industry as a whole more competitive and less dependent on government subsidies and controls; and (4) defraying the expenses of the Tobacco Transition Payment Program through the Assessments. As a result, this Court holds that FETRA Assessments satisfy the public purpose element of the Lorber Test as adopted by the Second Circuit in Chateaugay. In function and effect, FETRA Assessments represent excise taxes on Debt- or’s business of importing and distributing tobacco products. Therefore, this Court concludes that FETRA Assessments constitute “excise taxes” for pxxrposes of priority under § 507(a)(8)(E)(ii). III. When Do FETRA Assessments Accrue Having found that FETRA Assessments are excise taxes and entitled to eighth priority status under § 507(a)(8)(E)(ii) for prepetition Assessments, the next question is when do FETRA Assessments accrue. The answer to this question is critical because § 507(a)(8)(E)(ii) only permits a priority claim for “an excise tax on ... a transaction occurring during the three years immediately preceding the date of the filing of the petition.” For purposes of § 507(a)(8) and § 503(b) (which is discussed in Part IV below), most comets have held that “a tax is incurred when it accrues and becomes a fixed" }, { "docid": "16733726", "title": "", "text": "laws not directly related to the tax code” do not implicate the Anti-Injunction Act). Section 5000A(g)(l), it is true, says that “[t]he penalty provided by this section shall be paid upon notice and demand by the Secretary, and ... shall be assessed and collected in the same manner as an assessable penalty under subchapter B of chapter 68.” 26 U.S.C. § 5000A(g)(l) (emphasis added). The assessable penalties under subchapter B in turn “shall be paid upon notice and demand by the Secretary, and shall be assessed and collected in the same manner as taxes.” Id. § 6671(a). In the context of a shared-responsibility payment to the United States for failing to buy medical insurance, however, the most natural reading of the provision is that the “manner” of assessment and collection mentioned in sections 5000A(g)(l) and 6671(a) refers to the mechanisms the Internal Revenue Service employs to enforce penalties, not to the bar against pre-enforcement challenges to taxes. The same is true of other provisions in the Code treating penalties as taxes. All that section 6665(a)(2) and section 6671(a) show is that Congress intended to treat certain penalties as “taxes” in certain contexts. To read these provisions loosely to suggest that every penalty is a “tax” would render each particular provision superfluous. That conclusion makes all the more sense in the context of the Affordable Care Act, which prohibits the Internal Revenue Service from using the customary tools available for collecting taxes and penalties, the very tools the Anti-Injunction Act was enacted to protect. See Bob Jones Univ., 416 U.S. at 736, 94 S.Ct. 2038. In collecting the health care penalty, the Internal Revenue Service may not impose liens on an individual’s property, place levies on an individual’s pay, or bring criminal charges. 26 U.S.C. § 5000A(g)(2)(B). All that the Internal Revenue Service may do is one of two things. It may deduct past-due penalties from future tax refunds, a form of enforcement exceedingly unlikely to implicate the Anti-Injunction Act. Or it may bring a collection action, which most individuals would be unlikely to preempt — in truth invite — by" }, { "docid": "1864117", "title": "", "text": "OPINION PAUL L. FRIEDMAN, United States District Judge On May 28, 2012, the Internal Revenue Service issued a final rule implementing the premium tax credit provision of the Patient Protection and Affordable Care Act (the “ACA” or “Act”). In .its final rule, the IRS interpreted the ACA as authorizing the agency to grant tax credits to certain individuals who purchase insurance on either a state-run health insurance “Exchange” or a federally-facilitated “Exchange.” Plaintiffs contend that this interpretation is contrary to the statute, which, they assert, authorizes tax credits only for individuals who purchase insurance on state-run Exchanges. Plaintiffs therefore assert that the rule promulgated by the IRS exceeds the agency’s statutory authority and is arbitrary, capricious, and contrary to law, in violation of the Administrative Procedure Act. This matter is now before the Court on the parties’ cross-motions for summary judgment. The Court heard oral argument on the motions on December 3, 2013. After careful consideration of the parties’ papers and attached exhibits, the Act and other relevant legal authorities, the regulations promulgated by the IRS, and the oral arguments presented by counsel in open court, the Court will grant the defendants’ motion, deny the plaintiffs’ motion, and enter judgment for the defendants. I. BACKGROUND A. The Affordable Care Act On March 23, 2010, Congress enacted the Patient Protection and Affordable Care Act, Pub.L. No. 111-148, 124 Stat. 119 (2010), with the aim of increasing the number of Americans covered by health insurance and decreasing the cost of health care. Nat’l Fed’n of Indep. Bus. v. Sebelius, — U.S. -, 132 S.Ct. 2566, 183 L.Ed.2d 450 (2012). Under the ACA, most Americans must either obtain “minimum essential” health insurance coverage or pay a tax penalty imposed by the Internal Revenue Service. 26 U.S.C. § 5000A; see Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S.Ct. at 2580. Uninsured individuals who might otherwise have difficulty obtaining health insurance are provided certain tools to facilitate the purchase of such insurance. Specifically, the law provides for the establishment of “Exchanges,” through which individuals can purchase competitively-priced health insurance. See 42 U.S.C. §§ 18031," }, { "docid": "19223613", "title": "", "text": "(“Debtor Memorandum of Law”) and its Local Bankruptcy Rule 7056-1 statement of undisputed facts, [dkt item 19] Debtor argues that FETRA Assessments are regulatory fees and not taxes or excise taxes because FETRA Assessments serve no public purpose. According to Debtor, the Assessments “were created by the United States Department of Agriculture, a governmental agency, to benefit tobacco farmers, a particular party in interest, and not the General Public. The benefits created by the [FETRA] assessments inure only to the tobacco farmers and not to the general public.” Debtor Memorandum of Law at 10. [dkt item 19] In the alternative, Debtor argues that all FETRA Assessments accrued prepetition “on March 30, 2005,” the effective date of FETRA, and therefore are time barred from administrative status because they accrued prior to the petition date, and because they do not benefit the estate. Id. at 11. Debtor also raises a question of statutory interpretation under the Bankruptcy Code, asserting that if FETRA Assessments constitute excise taxes under § 507(a)(8), then any postpetition Assessments are “disqualified” from also being an administrative claim by virtue of § 503(b)(l)(B)(i). Id. at 12. On January 18, 2012, USDA filed opposition to Debtor’s Motion (the “Response”), [dkt item 23] USDA’s Response asserts that FETRA serves a public purpose, which is “to provide financial support to enable American tobacco growers, who had become dependent on the price supports and quotas under the heavily regulated old system, to transition to the free market and to become more competitive with foreign growers, if they chose to continue growing tobacco, or to leave if they transitioned to new crops or different jobs.” Id. at 2. USDA argues that FETRA payments provide financial relief to approximately 450,000 eligible individuals, most of whom are financially distressed small farmers, and create thousands of new jobs. Id. at 4. USDA points out that an Assessment can serve a public purpose without providing a universal public benefit. Id. at 3. In addition, USDA disputes Debtor’s assertions that FETRA Assessments became fixed on the date that the statute took effect, noting that Assessments are determined quarterly based" }, { "docid": "19223614", "title": "", "text": "being an administrative claim by virtue of § 503(b)(l)(B)(i). Id. at 12. On January 18, 2012, USDA filed opposition to Debtor’s Motion (the “Response”), [dkt item 23] USDA’s Response asserts that FETRA serves a public purpose, which is “to provide financial support to enable American tobacco growers, who had become dependent on the price supports and quotas under the heavily regulated old system, to transition to the free market and to become more competitive with foreign growers, if they chose to continue growing tobacco, or to leave if they transitioned to new crops or different jobs.” Id. at 2. USDA argues that FETRA payments provide financial relief to approximately 450,000 eligible individuals, most of whom are financially distressed small farmers, and create thousands of new jobs. Id. at 4. USDA points out that an Assessment can serve a public purpose without providing a universal public benefit. Id. at 3. In addition, USDA disputes Debtor’s assertions that FETRA Assessments became fixed on the date that the statute took effect, noting that Assessments are determined quarterly based upon each Tobacco Manufacturer’s reported sales in the preceding quarter. Id. at 5. On January 30, 2011, Debtor filed a reply in support of its Motion (the “Reply”). [dkt item 24] Debtor points out that USDA does not dispute that $806,527.14 of its Claim represents Assessments for periods more than three years prior to the Petition Date, which are not entitled to priority status under § 507(a)(8)(E) even if the USDA Claim constitutes an excise tax. Reply at ¶ 2. [dkt item 24] With respect to the remaining $490,507.96 balance of USDA’s claim, Debtor asserts that this amount is also not entitled to priority status because it “accrued on March 30, 2005” when Debtor states FETRA took effect. Id. at ¶ 3. Finally, Debtor argues that FE-TRA Assessments are not a tax but “an ‘earmark’ by Congress for the benefit of not the public, but the tobacco farmers,” and that FETRA Assessments lack a public purpose because of the negative health effects of using tobacco products. Id. at ¶¶ 6-7. After the filing of these" }, { "docid": "19223631", "title": "", "text": "U.S. 837, 842-43, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984)). The court then cited the Eleventh Circuit’s decision in Swisher in concluding that “the Takings Clause [analysis] is not appropriate and FETRA is not inconsistent with the Due Process Clause.” Id., at *8. However, as with the Eleventh Circuit’s decision in Swisher, the court in Native Wholesale did not reach the question of whether FETRA Assessments constitute taxes or regulatory fees. Therefore, this Court is presented with just one published decision on the question of whether FETRA Assessments constitute taxes. See Swisher, 2007 WL 4200816, at *9-10. Although the district court in Swisher held that FETRA Assessments are regulatory fees and not taxes, it did so by applying the San Juan Cellular factors for determining whether an agency assessment is an unconstitutional violation of the Takings Clause. Id., at *6-8. The court was not faced with the somewhat different question of whether FETRA Assessments constitute excise taxes under the Lorber Test. The Swisher district court described its decision as a close case, and the question of whether FETRA Assessments are taxes or fees was not even raised by the parties on appeal. Because the district court’s determination that FE-TRA Assessments are not taxes was made in the context of a Takings Clause analysis, and because both the district court and Eleventh Circuit rejected the claimed Takings Clause violation as an appropriate means of analyzing FETRA Assessments since they are “an obligation imposed by Congress merely to pay money,” Swisher, 550 F.3d at 1054, the Swisher decisions are not precedential for this case. See In re Nicholson, 435 B.R. 622, 631 (9th Cir. BAP 2010) (citing Export Group v. Reef Indus., Inc., 54 F.3d 1466, 1471-72 (9th Cir.1995) and Wainwright v. Witt, 469 U.S. 412, 422, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985)) (discussion that is not essential to a court’s holding is not binding or precedential); see also In re Nandalall, 434 B.R. 258, 269 n. 7 (Bankr.N.D.N.Y.2010); In re Franklin Indus. Complex, Inc., 377 B.R. 32, 50 n. 17 (Bankr.N.D.N.Y.2007). C. Public Purpose This Court must therefore determine whether" }, { "docid": "22389972", "title": "", "text": "Before turmng to the merits, we need to be sure we have the authority to do so. The Anti-Injunction Act provides that “no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person, whether or not such person is the person against whom such tax was assessed.” 26 U. S. C. § 7421(a). This statute protects the Government’s ability to collect a consistent stream of revenue, by barring litigation to enjoin or otherwise obstruct the collection of taxes. Because of the Anti-Injunction Act, taxes can ordinarily be challenged only after they are paid, by suing for a refund. See Enochs v. Williams Packing & Nav. Co., 370 U. S. 1, 7-8 (1962). The penalty for not complying with the Affordable Care Act’s individual mandate first becomes enforceable in 2014. The present challenge to the mandate thus seeks to restrain the penalty’s future collection. Amicus contends that the Internal Revenue Code treats the penalty as a tax, and that the Anti-Injunction Act therefore bars this suit. The text of the pertinent statutes suggests otherwise. The Anti-Injunction Act applies to suits “for the purpose of restraining the assessment or collection of any tax.” § 7421(a) (emphasis added). Congress, however, chose to describe the “[sjhared responsibility payment” imposed on those who forgo health insurance not as a “tax,” but as a “penalty.” §§5000A(b), (g)(2). There is no immediate reason to think that a statute applying to “any tax” would apply to a “penalty.” Congress’s decision to label this exaction a “penalty” rather than a “tax” is significant because the Affordable Care Act describes many other exactions it creates as “taxes.” See Thomas More, 651 F. 3d, at 551. Where Congress uses certain language in one part of a statute and different language in another, it is generally presumed that Congress acts intentionally. See Russello v. United States, 464 U. S. 16, 23 (1983). Amicus argues that even though Congress did not label the shared responsibility payment a tax, we should treat it as such under the Anti-Injunction Act because it functions" }, { "docid": "19223618", "title": "", "text": "record favoring the party opposing summary judgment to support a jury verdict in that party’s favor.” Cadle Co. v. Newhouse, 2002 WL 1888716, *A (S.D.N.Y. 2002) (citing Anderson, 477 U.S. at 249, 106 S.Ct. 2505); see also Anderson, 477 U.S. at 250, 106 S.Ct. 2505 (finding that summary judgment is appropriate only when “there can be but one reasonable conclusion as to the verdict”). ‘When deciding cross-motions for summary judgment, the standard to be applied ‘is the same as that for individual summary judgment motions and a court must consider each motion independent of the other.’ ” RST (2005) Inc. v. Research in Motion Ltd., 2008 WL 5416379, at *3 (S.D.N.Y.2008) (quoting Schultz v. Stoner, 308 F.Supp.2d 289, 298 (S.D.N.Y.2004)); see In re Citron, 2010 WL 2978062, at *3-4 (Bankr.E.D.N.Y. July 23, 2010); In re Zerbo, 397 B.R. 642, 647-48 (Bankr.E.D.N.Y. 2008). As noted above, the parties agree that there are no genuine issues of material fact. See Debtor’s Statement Pursuant to Local Bankruptcy Rule 7056-1 at ¶ 8 [dkt item 19]; USDA’s Rule 7056-1 Statement of Undisputed Facts at p. 1 [dkt item 17-1]. Thus, this dispute granulates down to four questions: (1) whether FETRA has a public purpose and therefore FETRA Assessments constitute excise taxes; (2) when do FETRA Assessments accrue; (3) to what extent are FETRA Assessments that accrued prepetition entitled to priority status; and (4) whether postpetition FE- TRA Assessments are entitled to administrative priority status. II. FETRA Assessments Constitute Excise Taxes under § 507(a)(8)(E) A. Defining “Tax” The first issue for the Court to determine is whether FETRA Assessments constitute excise taxes as opposed to regulatory fees for purposes of federal law. Section 507 of the Bankruptcy Code lists the order of priority that Congress has accorded to certain claims in bankruptcy; allowed prepetition unsecured claims of governmental units for excise taxes are entitled to an eighth level of priority. Section 507(a) provides that: (a) The following expenses and claims have priority in the following order: (8) Eighth, allowed unsecured claims of governmental units, only to the extent that such claims are for— (E) an" }, { "docid": "19223619", "title": "", "text": "Statement of Undisputed Facts at p. 1 [dkt item 17-1]. Thus, this dispute granulates down to four questions: (1) whether FETRA has a public purpose and therefore FETRA Assessments constitute excise taxes; (2) when do FETRA Assessments accrue; (3) to what extent are FETRA Assessments that accrued prepetition entitled to priority status; and (4) whether postpetition FE- TRA Assessments are entitled to administrative priority status. II. FETRA Assessments Constitute Excise Taxes under § 507(a)(8)(E) A. Defining “Tax” The first issue for the Court to determine is whether FETRA Assessments constitute excise taxes as opposed to regulatory fees for purposes of federal law. Section 507 of the Bankruptcy Code lists the order of priority that Congress has accorded to certain claims in bankruptcy; allowed prepetition unsecured claims of governmental units for excise taxes are entitled to an eighth level of priority. Section 507(a) provides that: (a) The following expenses and claims have priority in the following order: (8) Eighth, allowed unsecured claims of governmental units, only to the extent that such claims are for— (E) an excise tax on— (ii) if a return is not required, a transaction occurring during the three years immediately preceding the date of the filing of the petition[.] 11 U.S.C. § 507(a)(8)(E) (2011). While the Bankruptcy Code is replete with defined terms, “tax” and “excise tax” are not among them. See 11 U.S.C. § 101. Although the statute does not define “tax,” federal case law has provided guidance for determining whether an assessment or required payment is a tax as opposed to a regulatory fee; if a charge is a regulatory fee, it receives no priority and is treated as a general unsecured claim. See United States v. Reorganized CF & I Fabricators of Utah, Inc., 518 U.S. 213, 226, 116 S.Ct. 2106, 135 L.Ed.2d 506 (1996). The United States Supreme Court has defined taxes as “pecuniary burdens laid upon individuals or their property, regardless of their consent, for the purpose of defraying the expenses of government or of undertakings authorized by it.” City of New York v. Feiring, 313 U.S. 283, 285, 61 S.Ct. 1028," }, { "docid": "19223627", "title": "", "text": "purpose. B. Case Law Addressing FETRA The USDA Memorandum of Law identifies three opinions arising out of two cases which, while they do not reach the public purpose question, address whether FE-TRA Assessments are an unconstitutional taking of property under the Fifth Amend ment and whether they violate the Due Process Clause and/or the Equal Protection Clause of the United States Constitution; thus, these cases provide some guidance for this case. USDA Memorandum of Law at 12-13, 15-17. [dkt item 17] In Swisher International, Inc. v. Mike Johanns, Secretary of Agriculture, a manufacturer of cigars and smokeless tobacco products argued that the regulations implementing FETRA violated the Administrative Procedures Act, and that FETRA and its implementing regulations violating the Takings Clause and the Due Process Clause of the Fifth Amendment as well as principles of Equal Protection. 2007 WL 4200816, at *1 (M.D.Fla. Nov. 27, 2007). As part of its Takings Clause analysis, the district court addressed whether FETRA Assessments constitute a regulatory fee or a tax. Id., at *6-8. To determine whether FETRA Assessments are a tax or a fee, the court applied a three-factor test developed by the First Circuit in San Juan Cellular Telephone Co. v. Public Service Commission of Puerto Rico, 967 F.2d 683, 685 (1st Cir.1992), under which a court should consider whether the assessment is “(1) imposed by an agency or the legislature; (2) imposed upon those being regulated or the community as a whole; and, (3) for the purpose of defraying regulatory costs or to raise revenue.” Swisher, 2007 WL 4200816, at *4 n. 9 (quoting San Juan Cellular, 967 F.2d at 685). Applying the San Juan Cellular Test, the district court in Swisher found that FETRA Assessments are imposed by Congress but only upon a narrow class of persons, Tobacco Manufacturers, and not on the community as a whole. Id,., at *7. Following other “close cases such as this,” the court then turned to the third San Juan Cellular factor: whether the fees would be used for defraying regulatory costs or raising revenue. Id. Calling FETRA a “hybrid,” the court determined that" }, { "docid": "19625029", "title": "", "text": "See, e.g. , id. at 563, 132 S.Ct. 2566 (\"The exaction the Affordable Care Act imposes on those without health insurance looks like a tax in many respects. The '[s]hared responsibility payment,' as the statute entitles it, is paid into the Treasury ....\"); id. at 566, 132 S.Ct. 2566 (\"The same analysis here suggests that the shared responsibility payment may for constitutional purposes be considered a tax.\"); id. at 568, 132 S.Ct. 2566 (reasoning \"the shared responsibility payment merely imposes a tax citizens may lawfully choose to pay in lieu of buying health insurance\"); id. at 569, 132 S.Ct. 2566 (\"Our precedent demonstrates that Congress had the power to impose the exaction in § 5000A under the taxing power.\" (emphasis added) ). The Supreme Court's conclusion that § 5000A constituted a constitutional exercise of Congress's Tax Power turned on several factors. First, the shared-responsibility payment \"is paid into the Treasury by taxpayers when they file their tax returns.\" Id. at 563, 132 S.Ct. 2566 (cleaned up). Second, the amount owed under the ACA \"is determined by such familiar factors as taxable income, number of dependents, and joint filing status.\" Id. (citing 26 U.S.C. §§ 5000A(b)(3), (c)(2), (c)(4) ). And \"[t]he requirement to pay is found in the Internal Revenue Code and enforced by the IRS, which ... must assess and collect it 'in the same manner as taxes.' \" Id. at 563-64, 132 S.Ct. 2566. Third and finally, the shared-responsibility payment \"yields the essential feature of any tax: It produces at least some revenue for the Government.\" Id. at 564, 132 S.Ct. 2566 (citing United States v. Kahriger , 345 U.S. 22, 28 n.4, 73 S.Ct. 510, 97 L.Ed. 754 (1953) ) (emphasis added). On these bases, the Supreme Court held, \"The Federal Government does have the power to impose a tax on those without health insurance. Section 5000A is therefore constitutional, because it can reasonably be read as a tax.\" Id. at 575, 132 S.Ct. 2566. Finally, in Part IV , Chief Justice Roberts was joined by Justices Breyer and Kagan in concluding that the ACA's Medicaid-expansion provisions unconstitutionally" }, { "docid": "1864118", "title": "", "text": "IRS, and the oral arguments presented by counsel in open court, the Court will grant the defendants’ motion, deny the plaintiffs’ motion, and enter judgment for the defendants. I. BACKGROUND A. The Affordable Care Act On March 23, 2010, Congress enacted the Patient Protection and Affordable Care Act, Pub.L. No. 111-148, 124 Stat. 119 (2010), with the aim of increasing the number of Americans covered by health insurance and decreasing the cost of health care. Nat’l Fed’n of Indep. Bus. v. Sebelius, — U.S. -, 132 S.Ct. 2566, 183 L.Ed.2d 450 (2012). Under the ACA, most Americans must either obtain “minimum essential” health insurance coverage or pay a tax penalty imposed by the Internal Revenue Service. 26 U.S.C. § 5000A; see Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S.Ct. at 2580. Uninsured individuals who might otherwise have difficulty obtaining health insurance are provided certain tools to facilitate the purchase of such insurance. Specifically, the law provides for the establishment of “Exchanges,” through which individuals can purchase competitively-priced health insurance. See 42 U.S.C. §§ 18031, 18041. The Act also authorizes a federal tax credit for many low- and middle-income individuals to offset the cost of insurance purchased on these Exchanges. 26 U.S.C. § 36B. Large employers are expected to share the costs of health insurance coverage for their full-time employees, and employers who do not provide affordable health care may be subject to an “assessable payment” or tax. 26 U.S.C. § 4980H. At issue in this case is whether the ACA allows the IRS to provide tax credits to residents of states that declined to establish their own health insurance Exchanges, that is, in states where the federal government has stepped in and is running the Exchange. Because this dispute necessitates a careful examination of certain features of the ACA — in particular, the Exchanges, the Section 36B tax credits, the minimum insurance requirement for individuals, and the Section 4980H assessment imposed on some employers — these features are described in more detail below. 1. The Exchanges The ACA provides for the establishment of American Health Benefit Exchanges, or “Exchanges,”" }, { "docid": "19223632", "title": "", "text": "of whether FETRA Assessments are taxes or fees was not even raised by the parties on appeal. Because the district court’s determination that FE-TRA Assessments are not taxes was made in the context of a Takings Clause analysis, and because both the district court and Eleventh Circuit rejected the claimed Takings Clause violation as an appropriate means of analyzing FETRA Assessments since they are “an obligation imposed by Congress merely to pay money,” Swisher, 550 F.3d at 1054, the Swisher decisions are not precedential for this case. See In re Nicholson, 435 B.R. 622, 631 (9th Cir. BAP 2010) (citing Export Group v. Reef Indus., Inc., 54 F.3d 1466, 1471-72 (9th Cir.1995) and Wainwright v. Witt, 469 U.S. 412, 422, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985)) (discussion that is not essential to a court’s holding is not binding or precedential); see also In re Nandalall, 434 B.R. 258, 269 n. 7 (Bankr.N.D.N.Y.2010); In re Franklin Indus. Complex, Inc., 377 B.R. 32, 50 n. 17 (Bankr.N.D.N.Y.2007). C. Public Purpose This Court must therefore determine whether FETRA Assessments constitute excise taxes, a question which, the parties agree, turns on whether FETRA has a “public purpose, including the purposes of defraying expenses of government or undertakings authorized by it.” Chateaugay, 53 F.3d at 498. Debtor argues that there is no public purpose to FETRA because FETRA Assessments were created by the USDA, “to benefit tobacco farmers, a particular party in interest, and not the general public.” Debtor Memorandum of Law at 10. [dkt item 19] Debtor asserts that the benefits of FETRA Assessments inure only to U.S. Tobacco Growers that receive the payments and not to the general public, and that the sole purpose of FETRA Assessments is to lower U.S. Tobacco Growers’ selling price and to increase their revenues. Id. In addition, Debtor contends that a tax cannot achieve a public purpose by stabilizing a single industry, in this ease U.S. Tobacco Growers. Id. Debtor also points out the lack of a stated public purpose in the statute itself. Id. Further, Debtor argues that FETRA cannot have a public purpose because" }, { "docid": "19223662", "title": "", "text": "a fee, because the payments were compulsory, the compensation program was operated exclusively by the state; the program covered all employees for work-related injuries, and the premiums served a public purpose because injured employees depended on the financial soundness of the workers compensation fund). . The Court's own research has revealed approximately twenty published decisions involving various challenges to FETRA. See, e.g., Prime Time Int’l Co. v. Vilsack, 599 F.3d 678 (D.C.Cir.2010); Single Stick, Inc. v. Johanns, 601 F.Supp.2d 307 (D.D.C.2009); In re Evans, 337 B.R. 551 (Bankr.E.D.N.C.2005). However, no published decision appears to have squarely held that FETRA Assessments constitute a tax. . The district court also concluded that FE-TRA did not violate Due Process because FE-TRA was a rational exercise of Congress’ legislative power and because a participant in the tobacco industry might reasonably expect to be subject to further regulation. Swisher, 2007 WL 4200816, at *13. The district court further concluded that FETRA did not violate Equal Protection because it was supported by a rational basis and was not arbitrary and capricious. Swisher, 2007 WL 4200816, at *16. . The Eleventh Circuit also affirmed as to Due Process and Equal Protection. 550 F.3d at 1054-55. . The Eleventh Circuit’s opinion interchangeably refers to the FETRA Assessments as an \"excise tax”; 550 F.3d at 1050, 1060; and as \"assessments”; id. at 1050, 1053, 1056-60; however, the term \"fee” or \"regulatory fee” appear nowhere in the Eleventh Circuit’s decision. . The Native Wholesale court also concluded that FETRA did not violate United States treaties with Native America nations, and the court rejected an argument that another entity, Livingston International, Inc., should have been liable for the FETRA Assessments as that issue was not raised in the administrative hearings. 2011 WL 4704221, at *9-10. . Although USDA did not cite to any specific penalty for or enforcement mechanism when a Tobacco Manufacturer simply does not pay FETRA Assessments, it appears that USDA has statutory authority to commence a \"lawsuit as an enforcement action under FETRA and pursuant to 15 U.S.C. § 714b(c), which authorizes the CCC to 'sue and be" }, { "docid": "7973402", "title": "", "text": "text of FETRA. USDA does not maintain that its interpretation of FETRA is a permissible view of an ambiguous statute entitled to deference under Chevron step 2, 467 U.S. at 843, 104 S.Ct. 2778. Given that FETRA does not appear to be susceptible of only a single interpretation, we reverse and remand to the district court with instructions to remand Prime Time’s FETRA claims to the USDA for further proceedings. See PDK Labs. Inc. v. U.S. DEA 362 F.3d 786, 797-98 (D.C.Cir.2004). To the extent Prime Time contends USDA arbitrarily and capriciously overestimated its market share by relying on inaccurate data, USDA adequately explained why it rejected Prime Time’s view that A.C. Nielsen data on industry and individual sales volumes should be used in lieu of “removal” data. Section 518d(g)(l) directs USDA to calculate the volume of domestic sales and thus market share using “removal” forms and tax returns “as well as any other relevant information provided to or obtained by the Secretary.” Section 518d(i)(2) also permits manufacturers and importers to, use data on “individual company sales volumes” to challenge their assessments. While these provisions do not require USDA to accept such non-“removal” data or change an assessment based on it, USDA would be advised on remand to offer an explanation in response to Prime Time’s argument that the discrepancy in results indicated USDA’s data and calculations were inaccurate. For the relevant period, the A.C. Nielsen data showed Prime Time’s market share was between 1.05% and 2.5% as compared to between 4.81% and 7.78% computed by USDA. In ruling on Prime Time’s administrative appeal, the Secretary pointed out that A.C. Nielsen data “is aeross-the-counter ‘sales’ data,” tracking the number of cigars sold at the point of sale, while under FETRA “[mjarket shares ... are computed based on tobacco product ‘removal’ data.” Letter Decision at 6; see 7 U.S.C. § 518d(a)(3), (g)(2), (a)(2). Because FE-TRA adopted the definition of “removal” in 26 U.S.C. § 5702, supra note 2, the Secretary concluded USDA had to rely on excise tax and customs forms that report data on “removal.” By contrast, because A.C. Nielsen’s" } ]

[ { "docid": "4269485", "title": "", "text": "a part of plaintiff’s farm had depreciated the usefulness and value of the remainder and the owner was not justly compensated by being paid for that actually appropriated and leaving him uncompensated for the depreciation over benefits to the remaining land. Where there was a taking by flooding permanently, the court said there was a taking as in Pumpelly v. Green Bay Co., 13 Wall., 166; United States v. Lynah, 188 U. S., 445; United States v. Williams, 188 ib., 485; United States v. Welch, 217 U. S., 333. In the case at bar no proceedings had been taken to formally condemn the land'. But there is no essential difference between this and the cases mentioned, and especially between this and Lynah’s claim, supra. The two plantations of this owner adjoined Varnezobra plantation, which is involved in the Lynah case, supra, on one side and Beech Hill, involved in the Williams case, supra, on the other. In those cases it appeared that destruction was caused as the result of the raising of the level of the river with the direct result that by seepage and percolation the water rose until the water level in the land gradually rose to the height of the increased water level in the river, and the superinduced addition of water in the plantation was raised about 18 inches. The same conditions exist in the present case, supplemented by the shoaling of water in back river and by the deposits there of mud and sand whereby the ditches were filled and could not be drained. By seepage and percolation through the embankment the water became raised on the front of the river to such an extent that the overflow could not be controlled. By seepage and percolation caused by the deposits and obstructions in back river the property also became an irreclaimable bog unfit for the purpose of rice culture or any other known agriculture and deprived of all value. This was the necessary result of’ the work undertaken by the Government and was a taking within the meaning of the constitutional provision. From the evidence" } ]

[ { "docid": "21468099", "title": "", "text": "of the Court of Claims” (awarding damages for inverse condemnation) “correctly applied the law of California as made applicable to these claims by Congress.” 339 U.S. at page 755, 70 S.Ct. at page 970. Thus, no problem exists as to the law of inverse condemnation. State and Federal rules are the same. The sole question involved is whether the government has taken water rights by inverse condemnation. The United States, through its agents, may engage in or carry on activities on behalf of the United States which so interfere with the property rights of another that in effect there is a “taking” by the United States of such property rights. This constitutes “inverse condemnation.” The owner of the property so “taken” has a right under the Tucker Act (24 Stat. 505 (1887), 28 U.S.C. §§ 1346(a) (2), 1491) to damages for the taking (United States v. Gerlach Live Stock Co., 1950, 339 U.S. 725, 730, 70 S.Ct. 955, 94 L.Ed. 1231; United States v. Dickinson, 1947, 331 U.S. 745, 67 S.Ct. 1382, 91 L.Ed. 1789; United States v. Causby, 1946, 328 U.S. 256, 66 S.Ct. 1062, 90 L.Ed. 1206; Hurley v. Kincaid, 1932, 285 U.S. 95, 103, 52 S.Ct. 267, 76 L.Ed. 637; Portsmouth Harbor Land & Hotel Co. v. United States, 1922, 260 U.S. 327, 43 S.Ct. 135, 67 L.Ed. 287; United States v. Cress, 1917, 243 U.S. 316, 328-329, 37 S.Ct. 380, 61 L.Ed. 746; United States v. Lynah, 1903, 188 U.S. 445, 468-469, 23 S.Ct. 349, 47 L.Ed. 539; Pumpelly v. Green Bay Company, 1871, 13 Wall. 166, 177, 80 U.S. 166, 177, 20 L.Ed. 557. Here the last downstream user, the United States, claimed it acquired by reverse condemnation, an upstream right, i. e. the right to have a certain flow of water come on to the lands of the United States. For inverse condemnation to apply, there must have been a “taking” — i. e. an adverse user which took away substantial rights or such an interference with another’s right that it amounted to a taking. The leading United States Supreme Court case on inverse" }, { "docid": "7591719", "title": "", "text": "that the Supreme Court and Congress have been consistent in leaving the question of property in water rights to be determined.by and under local state law except in so far as Congress may exercise its constitutional power to regulate navigable waters, or for flood control under the Commerce Clause, article 1, § 8, cl. 3. In cases where such power was exercised, where the damage has been substantial so that there was a taking, the Supreme Court has been consistent in holding that such taking was compensable under the 5th Amendment. Where no right to compensation has been allowed, it has usually been on the holding that the right taken was not property, and that damages were merely incidental, uncertain, remote, conjectural, prospective, speculative, or not a direct result of the Government’s action. Some cases, but by no means all, illustrative of a taking where the powers were exercised under the Commerce Clause, are: Kohl v. U. S., 1875, 91 U.S. 367, 23 L. Ed. 449; U. S. v. Lynah, 1903] 188 U.S. 445, 23 S.Ct. 349, 47 L.Ed. 539; Pumpelly v. Green Bay, etc. Co., 1872, 13 Wall. 166, 20 L.Ed. 557; Williams v. U. S., C.C. 1903, 104 F. 50 affirmed 188 U.S. 485, 23 S.Ct. 363, 47 L.Ed. 554; U. S. v. Cress, 1917, 243 U.S. 316, 37 S.Ct. 380, 61 L.Ed. 746; U. S. v. Dickinson, 1947, 331 U.S. 745, 67 S.Ct. 1382, 91 L.Ed. 1789; U. S. v. Chandler-Dunbar Water Power Co., 1913, 229 U.S. 53, 33 S.Ct. 667, 57 L.Ed. 1063 (where the installed improvements .were held compensable); Ford & Son v. Little Falls Fibre Co., 1930, 280 U.S. 369, 50 S.Ct. 140, 74 L.Ed. 483. In U. S. v. Causby, 1945, 328 U.S. 256, 66 S.Ct. 1062, 1068, 90 L.Ed. 1206, the Supreme Court had under consideration the power to regulate flights of airplanes under the Air Commerce Act of 1926, 44 Stat. 568, 49 U.S.C.A. § 171 et seq., as amended by the Civil Aeronautics Act of 1938, 52 Stat. 973, 49 U.S.C.A. § 401 et seq., which Act finds its constitutional" }, { "docid": "14222287", "title": "", "text": "the licensee upon revocation which are compensable in condemnation. Many permits issued by the United States have value as between private persons, but they may be revoked without payment of compensation. We refer particularly to the language of this court in Osborne: Numerous instances are to be found where permits issued by a sovereign are highly valuable as between private persons but which may be revoked by the sovereign without the payment of compensation: e. g. bridge franchises, Louisville Bridge Co. v. United States, 1917, 242 U.S. 409, 37 S.Ct. 158, 61 L.Ed. 395; United States v. Wauna Toll Bridge Co., 1942, 9 Cir., 130 F.2d 855; licenses to erect river and harbor structures, United States v. Chicago, M„ St. P. & P. R. Co., 1941, 312 U.S. 592 [313 U.S. 543], 61 S.Ct. 772, 85 L.Ed. 1064; Willink v. United States, 1916, 240 U.S. 572, 36 S.Ct. 422, 60 L.Ed. 808; Greenleaf Johnson Lumber Co. v. Garrison, 1915, 237 U.S. 251, 35 S.Ct. 551, 59 L.Ed. 939; United States v. Chandler-Dunbar Water Power Co„ 1913, 229 U.S. 53, 70, 33 S.Ct. 667, 57 L.Ed. 1063; Berger v. Ohlson, 1941, 9 Cir., 120 F.2d 56, [10 Alaska 84]; permits to erect and maintain telephone and power lines, Swendig v. Washington [Water Power] Co., 1924, 265 U.S. 322, 44 S.Ct. 496, 68 L.Ed. 1036; United States v. Colorado Power Co., 1916, 8 Cir., 240 F. 217, 220; licenses to occupy, lease, or sell fishing areas, Lewis Blue Point Oyster Cultivation Co. v. Briggs, 1913, 229 U.S. 82, 33 S.Ct. 679, 57 L.Ed. 1083. The Court in Cox, referring to the grazing permits before it, acknowledged their value, stating as follows: Unquestionably, the grazing permits were of value to the ranchers. They were an integral part of the ranching unit — indeed, the fee lands are practically worthless without them. But, “the existence of value alone does not generate interests protected by the Constitution against diminution by the government, however unreasonable its action may be.” Reichelderfer v. Quinn, 287 U.S. 315, 319, 53 S.Ct. 177, 178, 77 L.Ed. 331. The Constitution requires'" }, { "docid": "21468100", "title": "", "text": "United States v. Causby, 1946, 328 U.S. 256, 66 S.Ct. 1062, 90 L.Ed. 1206; Hurley v. Kincaid, 1932, 285 U.S. 95, 103, 52 S.Ct. 267, 76 L.Ed. 637; Portsmouth Harbor Land & Hotel Co. v. United States, 1922, 260 U.S. 327, 43 S.Ct. 135, 67 L.Ed. 287; United States v. Cress, 1917, 243 U.S. 316, 328-329, 37 S.Ct. 380, 61 L.Ed. 746; United States v. Lynah, 1903, 188 U.S. 445, 468-469, 23 S.Ct. 349, 47 L.Ed. 539; Pumpelly v. Green Bay Company, 1871, 13 Wall. 166, 177, 80 U.S. 166, 177, 20 L.Ed. 557. Here the last downstream user, the United States, claimed it acquired by reverse condemnation, an upstream right, i. e. the right to have a certain flow of water come on to the lands of the United States. For inverse condemnation to apply, there must have been a “taking” — i. e. an adverse user which took away substantial rights or such an interference with another’s right that it amounted to a taking. The leading United States Supreme Court case on inverse condemnation notes the distinguishing features of the “taking”; “Property is taken in the constitutional sense- when inroads are made upon an owner’s use of it to an extent that, as between private parties, a servitude has been acquired either by agreement or in course of time,” United States v. Dickinson, 1947, 331 U.S. 745, 748, 67 S.Ct. 1382, 1385, 91 L.Ed. 1789. That feature is entirely lacking in our case. The water which the United States diverted and used was surplus to the needs of everyone else in the watershed; otherwise it would not have reached Camp Pendleton. If not used by the United States it would have wasted into the ocean. No one had the right to object to such downstream use; no one was injured by such use; hence no servitude could have been acquired. The Circuit Court of Appeals in its last decision in this case, People of the State of California v. United States, 9 Cir., 235 F.2d 647, stated at page 656: “But the physical possession of the corpus of" }, { "docid": "4083091", "title": "", "text": "a separate proceeding under the Tucker Act in the Court of Claims, (28 U.S.C. 1491), United States v. Virginia Electric Co., 365 U.S. 624, 81 S.Ct. 784, 4 L.Ed.2d 866 (1961); United States v. Kansas City Life Ins. Co., 339 U.S. 799, 70 S.Ct. 885, 94 L.Ed. 1277 (1950); United States v. Causby, 328 U.S. 256, 66 S.Ct. 1062, 90 L.Ed. 1206 (1946); United States v. Willow River Power Co., 324 U.S. 499, 65 S.Ct. 761, 89 L.Ed. 1101 (1945); United States v. Chicago, M., St. P. & P. R. Co., 312 U.S. 592, 61 S.Ct. 772, 85 L.Ed. 1064 (1941); United States v. Cress, 243 U. S. 316, 37 S.Ct. 380, 61 L.Ed. 746 (1917); United States v. Welch, 217 U. S. 333, 30 S.Ct. 527, 54 L.Ed. 787 (1910); United States v. Lynah, 188 U. S. 445, 23 S.Ct. 349, 47 L.Ed. 539 (1903); United States v. Williams, 188 U.S. 485, 23 S.Ct. 363, 47 L.Ed. 554 (1903). This cause will be reversed and remanded to the district court for a new trial. The award shall be limited to the damages caused to that portion of the property which is included in the declaration of taking, plus incidental damages, if any, caused by that taking to the remainder. It may not include damages to the remainder of the property which as a result of flooding was alleged to have been taken. Reversed and remanded." }, { "docid": "23531325", "title": "", "text": "575, 62 S.Ct. 736, 86 L.Ed. 1037; Public Utilities Commission v. United Fuel Gas Co., supra. And the exertion of the power of Congress in its regulation of interstate commerce is not fettered by pre-existing contracts or arrangements. The exercise of power under the Commerce Clause, Const. art. 1, § 8, cl. 3, cannot be subordinated to arrangements or stipulations previously effected. Contracts and arrangements of that kind necessarily are entered into with knowledge of the paramount authority of Congress to regulate commerce among the states. Union Bridge Co. v. United States, 204 U.S. 364, 27 S.Ct. 367, 51 L.Ed. 523; Monongahela Bridge Co. v. United States, 216 U.S. 177, 30 S.Ct. 356, 54 L.Ed. 435; Philadelphia Co. v. Stimson, 223 U.S. 605, 32 S.Ct. 340, 56 L.Ed. 570; Philadelphia, B. & W. R. Co. v. Schubert, 224 U.S. 603, 32 S.Ct. 589, 56 L.Ed. 911; Greenleaf Johnson Lumber Co. v. Garrison, 237 U.S. 251, 35 S.Ct. 551, 59 L.Ed. 939; Continental Ins. Co. v. United States, 259 U.S. 156, 42 S.Ct. 540, 66 L.Ed. 871; Sproles v. Binford, 286 U.S. 374, 52 S.Ct. 581, 76 L.Ed. 1167; Federal Radio Commission v. Nelson Bros. Bond & Mortgage Co., 289 U.S. 266, 53 S.Ct. 627, 77 L.Ed. 1166, 89 A.L.R. 406. It is emphasized that at the time the contracts were entered into neither of these companies was in fact or in law a public utility or common carrier, and that each disclaimed all of the privileges and obligations as such. These companies have never sought or acquired any certificate of public convenience and necessity, any franchise, or any right to enter a municipality; they have never advertised or represented that they would sell gas to the public generally; and they have never filed any rate schedule with any regulatory commission or any other authority. At the time the Act became effective, and since, Canadian transported and sold interstate gas to Colorado, and also made sales for resale to a distributing company; and Colorado made sales for resale to one municipality, four or five distributing companies, and two pipelines, and made" }, { "docid": "23531324", "title": "", "text": "and substantially performed prior to the enactment of the Act, at a time when neither company was in fact or in law a utility or common carrier, and when each disclaimed all of the privileges and obligations as such. The contracts between Canadian and Colorado, Colorado and Public Service Company, Colorado and Pueblo Gas and Fuel Company, Colorado and the City of Colorado Springs, and Colorado and Wyoming, respectively, were each executed prior to the date on which the act became effective; they were of limited term; and they had been performed in substantial part at the time the Act went into effect. But at all times, the transportation and sale of natural gas in interstate commerce for wholesale distribution to public service companies or municipalities for resale to domestic consumers was subject to regulation by Congress. State of Missouri v. Kansas Natural Gas Co., 265 U.S. 298, 44 S.Ct. 544, 68 L.Ed. 1027; Illinois Natural Gas Co. v. Central Illinois Public Service Co., supra; Federal Power Commission v. Natural Gas Pipeline Co., 315 U.S. 575, 62 S.Ct. 736, 86 L.Ed. 1037; Public Utilities Commission v. United Fuel Gas Co., supra. And the exertion of the power of Congress in its regulation of interstate commerce is not fettered by pre-existing contracts or arrangements. The exercise of power under the Commerce Clause, Const. art. 1, § 8, cl. 3, cannot be subordinated to arrangements or stipulations previously effected. Contracts and arrangements of that kind necessarily are entered into with knowledge of the paramount authority of Congress to regulate commerce among the states. Union Bridge Co. v. United States, 204 U.S. 364, 27 S.Ct. 367, 51 L.Ed. 523; Monongahela Bridge Co. v. United States, 216 U.S. 177, 30 S.Ct. 356, 54 L.Ed. 435; Philadelphia Co. v. Stimson, 223 U.S. 605, 32 S.Ct. 340, 56 L.Ed. 570; Philadelphia, B. & W. R. Co. v. Schubert, 224 U.S. 603, 32 S.Ct. 589, 56 L.Ed. 911; Greenleaf Johnson Lumber Co. v. Garrison, 237 U.S. 251, 35 S.Ct. 551, 59 L.Ed. 939; Continental Ins. Co. v. United States, 259 U.S. 156, 42 S.Ct. 540, 66 L.Ed." }, { "docid": "21468103", "title": "", "text": "land. In United States v. Causby, 1946, 328 U.S. 256, 66 S.Ct. 1062, 90 L.Ed. 1206, the use of airspace directly over the plaintiff’s chicken ranch for airplane take-offs and landings at a Government airbase and the noise and glare therefrom made the ranch unusable for raising poultry, and constituted a taking of an easement over the plaintiff’s land. In Portsmouth Harbor Land & Hotel Co. v. United States, 1922, 260 U.S. 327, 43 S.Ct. 135, 67 L. Ed. 287, the firing of large guns of the United States over the plaintiff’s land rendered the land valueless as a summer resort. In United States v. Dickinson, 1947, 331 U.S. 745, 67 S.Ct. 1382, 91 L.Ed. 1789, a federal dam raised the level of a river and flooded land belonging to the plaintiff. Flooding of land, resulting from navigation improvements, were involved in United States v. Cress, 1917, 243 U.S. 316, 328-329, 37 S.Ct. 380, 61 L.Ed. 746; United States v. Lynah, 1903, 188 U.S. 445, 468, 469, 23 S.Ct. 349, 47 L.Ed. 539; and Pumpelly v. Green Bay Company, 1871, 13 Wall 166, 177, 80 U.S. 166, 177, 20 L.Ed. 557. No such situation is present in our case. No one has been injured or interfered with in his property rights as a result of the use of water on the government property or the diversion of water by the government out of the watershed but within the reservation confines. We conclude that the United States has no water rights based on inverse condemnation. VIII Rulings on Motions Does This Court’s Jurisdiction Over the “Res” Require Determination of Priority of Applications, Etc. and Determination of Fallbrook’s Legal Authority and Capacity to Appropriate Water for Irrigation Purposes ? A United States Motion for Summary Judgment The United States has moved for a summary judgment against the Fall-brook Public Utility District, on the ground that Fallbrook secured from Rancho Santa Margarita on July 20, 1932, a revocable license to divert from the river ten miner’s inches for the purpose of supplying the inhabitants of the Fallbrook P. Ú. D. with water for" }, { "docid": "11964843", "title": "", "text": "States, 204 U.S. 364, 390, 27 S.Ct. 367, 51 L.Ed. 523; Shively v. Bowlby, 152 U.S. 1, 14 S.Ct. 548, 38 L.Ed. 331. If the authorized construction of the improvement in the river has resulted in a “taking” of plaintiffs’ property for which there must be “just compensation” under the Fifth Amendment, the government has impliedly promised to pay that compensation and plaintiffs are entitled to recover in this action. Yearsley v. W. A. Ross Construction Co., 309 U.S. 18, 21, 60 S.Ct. 413, 84 L.Ed. 554. On the other hand, if the government’s project has resulted in but a temporary invasion of the land or the injury thereto is but the consequential result of, or merely incidental to, the improvement of the channel of the fiver in aid of navigation, no implied obligation on the part of the government can arise. Jackson v. United States, 230 U.S. 1, 33 S.Ct. 1011, 57 L.Ed. 1363; Bedford v. United States, 192 U.S. 217, 24 S.Ct. 238. 48 L.Ed. 414; Gibson v. United States, 166 U.S. 269, 17 S.Ct. 578, 41 L.Ed. 996; Sanguinetti v. United States, 264 U.S. 146, 149, 44 S.Ct. 264, 68 L.Ed. 608; United States v. Lynah, supra, at page 472 of 188 U.S., 23 S.Ct. 349, 47 L.Ed. 539; United States v. Cress, supra, at page 327 of 243 U.S., 37 S.Ct. 380, 61 L.Ed. 746; Danforth v. United States, 308 U.S. 271, 60 S.Ct. 231, 84 L.Ed. 240; Montana Company v. St. Louis Mining, etc., Co., 152 U.S. 160, 169, 14 S.Ct. 506, 38 L.Ed. 398. In such cases the action for damages is analogous to the common law actions of trespass and case, sounds in tort, and the court is without jurisdiction to grant relief because the government has not consented to be sued in tort. See Munal v. Brown, C.C.Colo., 70 F. 967. Recovery of the damages, whether proximate or consequential, is precluded by the express terms of the Tucker Act and the claimant is therefore without a remedy against the United States. Keokuk & Hamilton Bridge Company v. United States, 260 U.S. 125," }, { "docid": "23304372", "title": "", "text": "unless the waters of the stream be backed upon the land. Persons acquiring and improving land adjacent to navigable waters do so subject to such results of the public right to improve and use the streams. The cases to this effect are cited and discussed in Franklin v. United States, 6 Cir., 101 F.2d 459. The dividing line between taking and merely damaging the land is illustrated by comparing United States v. Lynah, 188 U.S. 445, 23 S.Ct. 349, 47 L.Ed. 539, relied on by appellant, with Mills v. United States, D.C., 46 F. 738, 12 L.R.A. 673, therein cited as correctly decided and distinguished. In both cases similar rice plantations w.ere affected by the same raising of the water level in the Savannah River done for improving its navigation. In Lynah’s case it was found [188 U.S. 445, 23 S.Ct. 351, 47 L.Ed. 539]: “X. By the raising of the level of the Savannah river * * * the water thereof has been * * * caused to flow back upon and in this plantation * * * and has actually invaded said plantation, directly raising the water in said plantation about 18 inches, which it is impossible to remove from said plantation. This flooding is the permanent condition now, and the rice plantation is thereby practically destroyed for * * * rice culture or any other known agriculture, and is an irreclaimable bog and has no value.” It was held to be thereby taken, and a claim under the Tucker Act was sustained. In the Mills case the plantation was not overflowed, though drainage was prevented by the raised river, but the plantation could be protected by raising its dykes and making drainage in another direction at a cost of $10,000, which was the sum asked for the taking.' It was held there was no taking, but only an unintended damage for which the Tucker Act afforded no. remedy. In Jacobs v. United States, 5 Cir., 45 F.2d 34, there was an invasion by the raised waters, and also a statutory provision for paying for such damages as" }, { "docid": "14222286", "title": "", "text": "at times may have value. There have been cases in which certain unique interests have been recognized as private property and thus compensable within the meaning of the Fifth Amendment. Unfortunately, appellants’ situation does not fall reasonably within any of these circumstances. The weight of authority is to the contrary. The Supreme Court, for example, has held that a tenant whose lease contained a “termination on condemnation” clause had no right to compensation in a condemnation proceeding. We find appellants herein, as in Petty, have “no right which persists beyond the taking and can be entitled to nothing.” It is clear that a license does not constitute property for which the Government is liable upon condemnation, and passes to the licensee no estate or interest in the lands. Appellee correctly notes the parallel which exists between appellants’ prospecting permits and grazing permits upon public lands granted by virtue of the Taylor Grazing Act. Grazing permits create no interest or estate in public lands, only a privilege which may be withdrawn. No property rights accrue to the licensee upon revocation which are compensable in condemnation. Many permits issued by the United States have value as between private persons, but they may be revoked without payment of compensation. We refer particularly to the language of this court in Osborne: Numerous instances are to be found where permits issued by a sovereign are highly valuable as between private persons but which may be revoked by the sovereign without the payment of compensation: e. g. bridge franchises, Louisville Bridge Co. v. United States, 1917, 242 U.S. 409, 37 S.Ct. 158, 61 L.Ed. 395; United States v. Wauna Toll Bridge Co., 1942, 9 Cir., 130 F.2d 855; licenses to erect river and harbor structures, United States v. Chicago, M„ St. P. & P. R. Co., 1941, 312 U.S. 592 [313 U.S. 543], 61 S.Ct. 772, 85 L.Ed. 1064; Willink v. United States, 1916, 240 U.S. 572, 36 S.Ct. 422, 60 L.Ed. 808; Greenleaf Johnson Lumber Co. v. Garrison, 1915, 237 U.S. 251, 35 S.Ct. 551, 59 L.Ed. 939; United States v. Chandler-Dunbar Water Power Co„" }, { "docid": "11135790", "title": "", "text": "OPINION AND ORDER LETTOW, Judge. This post-trial decision reprises the circumstances of a line of venerable precedents in the Supreme Court addressing situations where “superinduced additions of water” to rivers impaired the utility of adjacent lands and caused a taking. Pumpelly v. Green Bay & Mississippi Canal Co., 80 U.S. (13 Wall.) 166, 181, 20 L.Ed. 557 (1871) (Miller, J.) (holding that “where real estate is actually invaded by superinduced additions of water ... so as to effectively destroy or impair its usefulness, it is a talcing, within the meaning of the Constitution”); see also United States v. Lynah, 188 U.S. 445, 23 S.Ct. 349, 47 L.Ed. 539 (1903) (the government’s construction of dams and other obstructions that raised the level of the Savannah River above its natural height and prevented drainage of a landowner’s plantation was a taking requiring compensation under the Fifth Amendment); United States v. Welch, 217 U.S. 333, 30 S.Ct. 527, 54 L.Ed. 787 (1910) (Holmes, J.) (holding that a taking arose where a landowner’s property was flooded due to the government’s dam); United States v. Cress, 243 U.S. 316, 37 S.Ct. 380, 61 L.Ed. 746 (1917) (determining that the government’s construction and maintenance of locks and dams on the Cumberland and Kentucky Rivers created a backwater which resulted in a taking of a landowner’s property); United States v. Dickinson, 331 U.S. 745, 67 S.Ct. 1382, 91 L.Ed. 1789 (1947) (finding a taking where the landowners’ property was flooded due to the government’s action in raising the level of a river); United States v. Kansas City Life Ins. Co., 339 U.S. 799, 70 S.Ct. 885, 94 L.Ed. 1277 (1950) (holding that a taking occurred where the government’s action in raising the level of a stream for navigational purposes invaded a landowner’s property by percolation of water, raising the water table, saturating the land, and blocking drainage so as to vitiate land’s agricultural productivity). The Arkansas Game & Fish Commission (“Commission”) owns approximately 23,000 acres of land along the Black River in northeastern Arkansas that it manages as the Dave Donaldson Black River Wildlife Management Area (“Management" }, { "docid": "9373658", "title": "", "text": "held (37 F.2d 602, 608) that although the physical occupancy of the land within this floodway did not occur until the land had been overflowed in time of flood, still “the process of subjecting it to that service and the taking possession, -in so far as is either necessary or contemplated by the act, will begin with the construction of the first levee or works which are intended to direct the water upon the land.” Since it held that these acts were threatened and that it thought the plaintiff was without an adequate remedy at law, it enjoined the defendant from proceeding with the construction of the flood-way. The Circuit Court of Appeals affirmed (49 F.2d 768). The Supreme Court granted certiorari. In its opinion reported sub-nom. Hurley v. Kincaid, 285 U.S. 95, on pages 103 and 104, 52 S.Ct. 267, on pages 268, 269, 76 L.Ed. 637, it said: “ * * * We may assume that, as charged, the mere adoption by Congress of a plan of flood control which involves an intentional, additional, occasional flooding of complainant’s land constitutes a taking of it — as soon as the government begins to carry out the project authorized. Compare United States v. Lynah, 188 U.S. 445, 469, 23 S.Ct. 349, 47 L.Ed. 539; United States v. Cress, 243 U.S. 316, 328, 37 S.Ct. 380, 61 L.Ed. 746; Peabody v. United States, 231 U.S. 530, 538, 34 S.Ct. 159, 58 L.Ed. 351; Portsmouth Harbor Land & Hotel Co. v. United States, 250 U.S. 1, 39 S.Ct. 399, 63 L.Ed. 809; Id., 260 U.S. 327, 329, 43 S.Ct. 135, 67 L.Ed. 287.” But it held that since, in its opinion, the plaintiff had an adequate remedy at law for the taking, if one had occurred, he was not entitled to the injunction he sought and, hence, it dismissed plaintiff’s bill. In Sponenbarger v. United States, 308 U.S. 256, 60 S.Ct. 225, 83 L.Ed. 230, plaintiff asserted that the lands within this flood-way had been taken merely by the adoption by Congress of the plan contemplating the erection of this floodway. The" }, { "docid": "4083090", "title": "", "text": "v. United States, 222 F.2d 493 (8th Cir. 1955); Moody v. Wickard, 78 U.S.App.D.C. 80, 136 F.2d 801 (1943); Oyster Shell Products Corp. v. United States, 197 F. 2d 1022 (5th Cir. 1952), cert. den. 344 U.S. 885, 73 S.Ct. 184, 97 L.Ed. 685 (1952). The United States, as sovereign, is immune from suit, except when it consents to be sued, and the terms of its consent to be sued in any court defines that court’s jurisdiction to entertain the suit. United States v. Sherwood, 312 U.S. 584, 61 S.Ct. 767, 85 L.Ed. 1058 (1941); Oyster Shell Products Corp. v. United States, supra. The terms of the Government’s consent to be sued in the facts of the instant case are defined by the Tucker Act, 28 U.S.C. § 1491. The landowner is entitled to recover damages for the actual taking of property which is not included in the declaration of taking, but the award may not be made in a condemnation suit under the theory of damages to the remainder. This must be done in a separate proceeding under the Tucker Act in the Court of Claims, (28 U.S.C. 1491), United States v. Virginia Electric Co., 365 U.S. 624, 81 S.Ct. 784, 4 L.Ed.2d 866 (1961); United States v. Kansas City Life Ins. Co., 339 U.S. 799, 70 S.Ct. 885, 94 L.Ed. 1277 (1950); United States v. Causby, 328 U.S. 256, 66 S.Ct. 1062, 90 L.Ed. 1206 (1946); United States v. Willow River Power Co., 324 U.S. 499, 65 S.Ct. 761, 89 L.Ed. 1101 (1945); United States v. Chicago, M., St. P. & P. R. Co., 312 U.S. 592, 61 S.Ct. 772, 85 L.Ed. 1064 (1941); United States v. Cress, 243 U. S. 316, 37 S.Ct. 380, 61 L.Ed. 746 (1917); United States v. Welch, 217 U. S. 333, 30 S.Ct. 527, 54 L.Ed. 787 (1910); United States v. Lynah, 188 U. S. 445, 23 S.Ct. 349, 47 L.Ed. 539 (1903); United States v. Williams, 188 U.S. 485, 23 S.Ct. 363, 47 L.Ed. 554 (1903). This cause will be reversed and remanded to the district court for a new trial." }, { "docid": "11964841", "title": "", "text": "it would have been had the government work not been done; that the increase in the flood levels of the river caused and resulted in the overflow of a large proportion of plaintiffs’ lands ■during the years 1937, 1938, and 1939; and that but for the government work the overflow would not have occurred. The court further found that it is reasonably to be anticipated that the government work, as it now exists, will cause a future flooding of plaintiffs’ lands in times -of ordinary floods in the river and will reduce their value. The court concluded: “1st. That plaintiffs have neither plead nor proven any situation from which could be deduced an intention to take plaintiffs’ property or an implied agreement to pay therefor, and that there was not a taking within the meaning of the constitution of either the lands or crops. And “2d. That the action of the plaintiffs is for the recovery of consequential damages, sounds in tort, and should be dismissed on the ground that this court is without jurisdiction to hear and determine the same.” The federal government derives its authority over the navigable rivers of the United States from the commerce clause of the constitution, U.S.C.A.Const. Art. 1, § 8, cl. 3; and the government’s right to improve such rivers in aid of navigation is paramount to the rights of riparian owners in the beds of all navigable streams. Pike Rapids Power Co. v. Minneapolis, St. P. & S. S. M. R. Co., 8 Cir., 99 F.2d 902, 909. But the government may not for the purpose of aiding navigation permanently convert to the public use, by means of dams and other structures, the land of the riparian owner above the mean high-water line without just compensation. Pumpelly v. Green Bay Co., 13 Wall. 166, 20 L.Ed. 557; United States v. Lynah, 188 U.S. 445, 23 S.Ct. 349, 47 L.Ed. 539; United States v. Cress, 243 U.S. 316, 37 S.Ct. 380, 61 L.Ed. 746; Willink v. United States, 240 U.S. 572, 580, 36 S.Ct. 422, 60 L.Ed. 808; Union Bridge Co. v. United" }, { "docid": "21173669", "title": "", "text": "of this constitutional provision; it is sufficient if the action by the government involves a direct interference with or disturbance of property rights. See e. g., Pumpelly v. Green Bay Co., 13 Wall. 166, 80 U.S. 166, 20 L.Ed. 557 (1871); United States v. Lynah, 188 U.S. 445, 23 S.Ct. 349, 47 L.Ed. 539 (1903); United States v. Cress, 243 U.S. 316, 37 S.Ct. 380, 61 L.Ed. 746 (1917). Nor need the government directly appropriate the title, possession or use of the properties in question since it is “the deprivation of the former owner rather than the accretion of a right or interest to the sovereign [which] constitutes the taking. Governmental action short of acquisition of title or oceupancy has been held, if its effects are so complete as to deprive the owner of all or most of his interest in the subject matter to amount to a taking.” United States v. General Motors Corp., 323 U.S. 373, 378, 65 S.Ct. 357, 359, 89 L.Ed. 311 (1945). For example, it has been held consistently that an overflow of water resulting from government construction projects which materially impairs the use and enjoyment of lands constitutes a constitutional taking of such lands despite the absence of appropriation of title or occupancy. Pumpelly v. Green Bay Co., supra; United States v. Lynah, supra; United States v. Cress, supra. See also Cotton Land Co. v. United States, 75 F.Supp. 232, 109 Ct.Cl. 816 (1948). The principle is applicable to personal property where ‘ the owner is deprived of its use * * * as the natural consequence of the deliberate, intended exercise of an asserted power” of ■ the government. Causby v. United States, 75 F.Supp. 262, 264, 109 Ct.Cl. 768, 772 (1948). See also Kimball Laundry Co. v. United States, 338 U.S. 1, 69 S.Ct. 1434, 93 L.Ed. 1765 (1949); Todd v. United States, 292 F.2d 841, 845-846, 155 Ct.Cl. 87, 94-96 (1961); Seery v. United States, 161 F.Supp. 395, 142 Ct.Cl. 234 (1958). The decisive factor in each of these cases, and in the others which follow the same principle, is that" }, { "docid": "11964844", "title": "", "text": "17 S.Ct. 578, 41 L.Ed. 996; Sanguinetti v. United States, 264 U.S. 146, 149, 44 S.Ct. 264, 68 L.Ed. 608; United States v. Lynah, supra, at page 472 of 188 U.S., 23 S.Ct. 349, 47 L.Ed. 539; United States v. Cress, supra, at page 327 of 243 U.S., 37 S.Ct. 380, 61 L.Ed. 746; Danforth v. United States, 308 U.S. 271, 60 S.Ct. 231, 84 L.Ed. 240; Montana Company v. St. Louis Mining, etc., Co., 152 U.S. 160, 169, 14 S.Ct. 506, 38 L.Ed. 398. In such cases the action for damages is analogous to the common law actions of trespass and case, sounds in tort, and the court is without jurisdiction to grant relief because the government has not consented to be sued in tort. See Munal v. Brown, C.C.Colo., 70 F. 967. Recovery of the damages, whether proximate or consequential, is precluded by the express terms of the Tucker Act and the claimant is therefore without a remedy against the United States. Keokuk & Hamilton Bridge Company v. United States, 260 U.S. 125, 127, 43 S.Ct. 37, 67 L.Ed. 165; Tempel v. United States, 248 U.S. 121, 129, 39 S.Ct. 56, 63 L.Ed. 162; Franklin v. United States, 6 Cir., 101 F.2d 459; Ross Construction Co. v. Yearsley, 8 Cir., 103 F.2d 589. In Sanguinetti v. United States, supra [264 U.S. 146, 44 S.Ct. 265, 68 L.Ed. 608], the Supreme Court said that “in order to create an enforceable liability against the government, it is at least necessary that the overflow be the direct result of the structure, and constitute an actual, permanent invasion of the land, amounting to an appropriation of and not merely an injury to the property.” The overflow, however, need not be continuous in nature. In United States v. Cress, supra [243 U.S. 316, 37 S.Ct. 385, 61 L.Ed. 746] the court held that “There is no difference of kind, but only of degree, between a permanent condition of continual overflow by backwater and a permanent liability to intermittent but inevitably recurring overflows; and, on principle, the right to compensation must arise in the" }, { "docid": "11964842", "title": "", "text": "to hear and determine the same.” The federal government derives its authority over the navigable rivers of the United States from the commerce clause of the constitution, U.S.C.A.Const. Art. 1, § 8, cl. 3; and the government’s right to improve such rivers in aid of navigation is paramount to the rights of riparian owners in the beds of all navigable streams. Pike Rapids Power Co. v. Minneapolis, St. P. & S. S. M. R. Co., 8 Cir., 99 F.2d 902, 909. But the government may not for the purpose of aiding navigation permanently convert to the public use, by means of dams and other structures, the land of the riparian owner above the mean high-water line without just compensation. Pumpelly v. Green Bay Co., 13 Wall. 166, 20 L.Ed. 557; United States v. Lynah, 188 U.S. 445, 23 S.Ct. 349, 47 L.Ed. 539; United States v. Cress, 243 U.S. 316, 37 S.Ct. 380, 61 L.Ed. 746; Willink v. United States, 240 U.S. 572, 580, 36 S.Ct. 422, 60 L.Ed. 808; Union Bridge Co. v. United States, 204 U.S. 364, 390, 27 S.Ct. 367, 51 L.Ed. 523; Shively v. Bowlby, 152 U.S. 1, 14 S.Ct. 548, 38 L.Ed. 331. If the authorized construction of the improvement in the river has resulted in a “taking” of plaintiffs’ property for which there must be “just compensation” under the Fifth Amendment, the government has impliedly promised to pay that compensation and plaintiffs are entitled to recover in this action. Yearsley v. W. A. Ross Construction Co., 309 U.S. 18, 21, 60 S.Ct. 413, 84 L.Ed. 554. On the other hand, if the government’s project has resulted in but a temporary invasion of the land or the injury thereto is but the consequential result of, or merely incidental to, the improvement of the channel of the fiver in aid of navigation, no implied obligation on the part of the government can arise. Jackson v. United States, 230 U.S. 1, 33 S.Ct. 1011, 57 L.Ed. 1363; Bedford v. United States, 192 U.S. 217, 24 S.Ct. 238. 48 L.Ed. 414; Gibson v. United States, 166 U.S. 269," }, { "docid": "21468102", "title": "", "text": "the water after it enters the enclave and the ability and legal right then to use it for whatever purpose are not evidentiary of a water right, for the right to use water is a property right and is appurtenant to particular parcels of land. We must not fall into the fallacy of believing that, because the United States, by its sovereignty, made use of the corpus of water which entered the enclave as it chose, it thereby acquired property rights in the flow against upper riparians or appropriators under municipal law. * * * Since neither appropriators, riparians nor anyone else could object or prevent such use of water by the United States in the enclave, such usé was not adverse to their interests.” In each of the cases cited above involving inverse condemnation, there was a “taking.” In United States v. Gerlach Live Stock Co., supra, Friant Dam of the federal Central Valley Project stored, and diverted to other lands, flows of water which the plaintiffs had long used on their downstream riparian land. In United States v. Causby, 1946, 328 U.S. 256, 66 S.Ct. 1062, 90 L.Ed. 1206, the use of airspace directly over the plaintiff’s chicken ranch for airplane take-offs and landings at a Government airbase and the noise and glare therefrom made the ranch unusable for raising poultry, and constituted a taking of an easement over the plaintiff’s land. In Portsmouth Harbor Land & Hotel Co. v. United States, 1922, 260 U.S. 327, 43 S.Ct. 135, 67 L. Ed. 287, the firing of large guns of the United States over the plaintiff’s land rendered the land valueless as a summer resort. In United States v. Dickinson, 1947, 331 U.S. 745, 67 S.Ct. 1382, 91 L.Ed. 1789, a federal dam raised the level of a river and flooded land belonging to the plaintiff. Flooding of land, resulting from navigation improvements, were involved in United States v. Cress, 1917, 243 U.S. 316, 328-329, 37 S.Ct. 380, 61 L.Ed. 746; United States v. Lynah, 1903, 188 U.S. 445, 468, 469, 23 S.Ct. 349, 47 L.Ed. 539; and Pumpelly" }, { "docid": "15227349", "title": "", "text": "at least by the May 1964 flood, and that defendant’s engineers contemplated that a natural consequence of the construction of the left-bank levee would be a greater chance that plaintiff’s property would be flooded when the creek reached a certain stage. Nevertheless, we hold that defendant has not taken any interest in plaintiff’s land requiring compensation under the Fifth Amendment. The Supreme Court and this court have recognized that the United States can appropriate land to its own use as effectively by flooding it as by occupying it in other ways. Pumpelly v. Green Bay & Mississippi Canal Co., 80 U.S. (13 Wall.) 166, 20 L.Ed. 557 (1872) (applying Wisconsin constitutional provision similar to Fifth Amendment); United States v. Lynah, 188 U.S. 445, 23 S.Ct. 349, 47 L.Ed. 539 (1903); United States v. Welch, 217 U.S. 333, 30 S.Ct. 527, 54 L. Ed. 787 (1910); United States v. Cress, 243 U.S. 316, 37 S.Ct. 380, 61 L.Ed. 746 (1917); Jacobs v. United States, 290 U.S. 13, 54 S.Ct. 26, 78 L.Ed. 142 (1933); Cotton Land Co. v. United States, 75 F. Supp. 232, 109 Ct.Cl. 816 (1948). It is equally settled, however, that not all floodings caused by or partially attributable to governmental activities amount to a taking. Jackson v. United States, 230 U.S. 1, 33 S.Ct. 1011, 57 L.Ed. 1363 (1913); Hughes v. United States, 230 U.S. 24, 33 S.Ct. 1019, 57 L.Ed. 1374 (1913); Cubbins v. Mississippi River Comm., 241 U.S. 351, 36 S.Ct. 671, 60 L.Ed. 1041 (1916); Sanguinetti v. United States, 264 U.S. 146, 44 S.Ct. 264, 68 L.Ed. 608 (1924); United States v. Sponenbarger, 308 U.S. 256, 60 S.Ct. 225, 84 L.Ed. 230 (1939); Matthews v. United States, 87 Ct.Cl. 662 (1938); Kirch v. United States, 91 Ct.Cl. 196 (1940); North Counties Hydroelectric Co. v. United States, 70 F.Supp. 900, 108 Ct.Cl. 470 (1947); North Counties Hydro-Electric Co. v. United States, 151 F.Supp. 322, 138 Ct.Cl. 380, cert. denied, 355 U.S. 882, 78 S.Ct. 149, 2 L.Ed.2d 112 (1957); B Amusement Co. v. United States, 180 F.Supp. 386, 148 Ct.Cl. 337 (1960) (Congressional reference case);" } ]

[ { "docid": "23612354", "title": "", "text": "the Secretary’s regulations set forth a general discussion of the factors to be applied in evaluating disability claims. In pertinent part, it was stated that disability “is determined from all the facts of [the] case. Primary consideration is given to the severity of the individual’s impairment. Consideration is also given to such other factors as the individual’s age, education, and work experience. Medical considerations alone can justify a finding that the individual is not under a disability where the only impairment is a slight neurosis, slight impairment of sight or hearing, or other slight abnormality or a combination of slight abnormalities. On the other hand, medical considerations alone ... can, except where other evidence rebuts a finding of ‘disability’... justify a finding that the individual is under a disability where his impairment ... is listed in the appendix to the subpart____” In 1978 the Secretary revised the regulations, establishing a five-step sequential procedure for determining whether a claimant is disabled. These regulations were modified again in 1980, primarily to make their language clearer. Under the existing regulations, if the claimant is found not to be disabled under any one of the sequential tests, the analysis ends and the remaining steps of the analysis are not completed. As the first step, the Secretary ascertains whether the claimant is working; if so, a finding of “not disabled” follows. Next (step 2), the Secretary determines, solely on the basis of medical factors, whether the claimant has a “severe” impairment which “significantly limits [his] physical or mental ability to do basic work activities.” The regulation specifically provides that at this step the Secretary “will not consider your age, education, and work experience.” If the claimant is determined to have a “severe” impairment under this definition, the Secretary next considers (step 3) whether the impairment is one which is listed in Appendix 1 of the regulations; if so, the claimant is found to be disabled without requirement of further proof that the impairment prevents him from working. The fourth step comes into play if the claimant’s impairment, though deemed “severe” under step 2, is not" } ]

[ { "docid": "23445437", "title": "", "text": "introduced in 1968 to describe in detailed diagnostic terms, quantified where possible, those impairments “which are of a level of severity deemed sufficient to preclude an individual from engaging in any gainful activity”. § 404.1506 (1968). A claimant suffering from a “listed impairment”, if actually unemployed, was entitled to disability benefits without any need to consider the effect of his age, education, or work experience on his ability to do other work. Under the 1968 regulations, a claimant whose medical condition was neither so serious as the per se disabling “listed impairments” in Appendix 1 nor merely one of the “slight abnormalities” mentioned in § 404.1520(a) (1968) would have his application considered on all the facts, including the degree to which his age, education, and work experience combined with his impairment to affect his ability to engage in substantial gainful activity. In 1978, the Secretary issued new regulations, 43 F.R. 55349, which were modified in 1980, 45 F.R. 55566. Promulgated to achieve “greater program efficiency” by “limiting the number of cases in which it would be necessary to follow the vocational evaluation sequence” in full, these regulations effected a streamlining of the deci-sional process. The sequence now followed in evaluating claims of disability is set forth in 20 C.F.R. § 404.1520, which provides: § 404.1520. Evaluation of disability in general (a) Steps in evaluating disability. We consider all material facts to determine whether you are disabled. If you are not doing substantial gainful activity, we will first consider your physical or mental impairments). Your impairment must be severe and meet the duration requirement before we can find you to be disabled. We follow a set order to determine whether you are disabled. We review any current work activity, the severity of your impairments), your residual functional capacity and your age, education, and work experience. If we can find that you are disabled or not disabled at any point in the review, we do not review further. (b) If you are working. If you are working and the work you are doing is substantial gainful activity, we will find that you" }, { "docid": "22431713", "title": "", "text": "§§ 404.1520, 416.920 (1984). If a claimant is found not to be disabled at any step in this sequential evaluation, the remaining steps are not considered. 20 C.F.R. § 404.1520(a) (1984). The first step involves the determination whether the claimant is involved in substantial gainful activity. 20 C.F.R. § 404.-1520(b) (1984). The second step, which is here challenged, requires the factfinder to decide whether a claimant’s impairment is severe, irrespective of age, education, or work experience. 20 C.F.R. § 404.1520(c) (1984). If the claimant is found to have a severe impairment, it is compared against a list of impairments found in Appendix 1 of the regulations. 20 C.F.R. § 404.1520(d) (1984). If the claimant’s impairment is listed, the individual is considered disabled. Id. If it is not listed, the next step must be considered. At that point, the factfinder must decide whether the claimant can do past relevant work. 20 C.F.R. § 404.-1520(e) (1984). The final question is whether the claimant can perform any other work. Only at this stage are a claimant’s residual functional capacity, age, education, and past work experience considered. 20 C.F.R. § 1520(f) (1984). This -court has had a number of cases in recent months in which the administrative determination was made against disability at step two on grounds of nonseverity. In Estran v. Heckler, 745 F.2d 340 (5th Cir.1984), we stated that the current definition of a non-severe impairment must be read in light of the earlier regulations defining severe impairment adopted in 1968, for, as explained by the Secretary in the Federal Register, the new terminology was intended solely to clarify, not to change, the definition of “severe impairment.” The change in language was not accompanied by “an intention to alter the levels of severity for a finding of disabled or not disabled.” 32 Fed.Reg. 55357-55358. In the 1968 regulations, non-severe impairment is described as, “... a slight neurosis, slight impairment of sight or hearing, or other slight abnormality or combination of abnormalities.” 20 C.F.R. § 404.1502(a) (1968). Id. at 745 F.2d 340-41. We therefore construed the current regulation as setting the following standard" }, { "docid": "23138754", "title": "", "text": "as amended in 1980, provided: If you do not have any impairment(s) which significantly limits your physical or mental ability to do basic work activities, we will find that you do not have a severe impairment and are, therefore, not disabled. We will not consider your age, education, and work experience. 20 C.F.R. § 404.1520(c) (1980). “Basic work activities” are defined as “the abilities and aptitudes necessary to do most jobs,” such as, for example, “[p]hysical functions such as walking, standing, sitting, lifting, [etc.]”, “[capacities for seeing, hearing, and speaking,” and “[understanding, carrying out, and remembering simple instructions.” Id. § 404.1521(b). Thus, Step Two allows the Secretary to deny a claim for benefits on the basis of a relatively simple threshold determination of the claimant’s ability to perform basic, generically defined work functions, without at this stage engaging in the rather more burdensome medical-vocational analysis required by § 423(d)(2)(A) (and applied in steps 4 and 5) — the determination that the claimant “is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy.” 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B). The severity regulation has been much analyzed by the courts, and was upheld by the Supreme Court in a decision discussed below. See Bowen v. Yuckert, 482 U.S. 137, 107 S.Ct. 2287, 96 L.Ed.2d 119 (1987). The evolution of the severity regulation, as summarized below, is central to this litigation. Prior to 1978, the precursor of the severity regulation provided that benefits could be denied on medical evidence alone “where the only impairment is a slight neurosis, slight impairment of sight or hearing, or other similar abnormality or combination of slight abnormalities.” Yuckert, 482 U.S. at 147, 107 S.Ct. at 2294 (quoting 20 C.F.R. § 404.1502(a) (1961)). The “slight impairment” language was replaced by the non-severity standard in 1978, when the Secretary adopted the five-step process. See id. In introducing the amendment from “slight abnormality5’ to “not severe,” the Secretary explained that the change was a “technical clarification,” not “intended" }, { "docid": "16496798", "title": "", "text": "definition for SSI). Plaintiffs’ amended complaint sought a declaratory judgment that: Defendant’s regulation and policy of denying and terminating Title II (SSDI) and Title XVI (SSI) disability benefits to individuals who are disabled but who are denied or terminated on the basis of the lack of a “severe” impairment violates 42 U.S.C. § 423(d) and § 1382c(a)(3) and, the United States Constitution and, therefore, is invalid. App. I at 104 (emphasis added). Prior to 1978 the Secretary’s regulations provided that a claimant could be denied benefits on medical considerations alone “where the only impairment is a slight neurosis, slight impairment of sight or hearing, or similar abnormality or combination of slight abnormalities.” 20 C.F.R. § 404.1502(a) (1968). Plaintiffs refer to this regulation as effecting a “slight impairment” or de minimis policy with respect to nonseverity rulings. In 1978, when the Secretary promulgated the five-step evaluation process currently in use, he reworded this regulation to provide as follows: Where an individual does not have any impairment(s) which significantly limits his or her physical or mental capacity to perform basic work-related functions, a finding shall be made that he or she does not have a severe impairment and therefore is not under a disability without consideration of the vocational factors. 20 C.F.R. § 404.1503(c) (1979). The Secretary subsequently revised this regulation to read as follows: If you do not have any impairments) which significantly limits your physical or mental ability to do basic work activities, we will find that you do not have a severe impairment and are, therefore, not disabled. We will not consider your age, education, and work experience. 20 C.F.R. § 1520(c) (1980). Plaintiffs have not argued that the 1980 change was substantive rather than editorial. At the time the wording of the regulations changed from “slight impairment” to “not ... severe,” the Secretary stated that the change “was not intended to alter the levels of severity for a finding of disabled or not disabled.” 43 Fed.Reg. 9297 (1978); see also 43 Fed.Reg. 55357-58 (1978). If the impairment is determined to be severe, the sequential evaluation requires consideration of" }, { "docid": "22288444", "title": "", "text": "sequential evaluation process for deciding whether an individual is disabled. See 20 C.F.R. §§ 404.1520, 416.920. The first two steps involve threshold determinations that the claimant is not presently engaged in substantial gainful activity and has an impairment or combination of impairments which significantly limits his physical or mental ability to do basic work activities. See 20 C.F.R. §§ 404.1520, 404.1520(b)-(c), 416.920, 416.920(b)-(c). In the third step, the medical evidence of the claimant’s impairment(s) is compared to a list of impairments presumed severe enough to preclude any gainful activity. See 20 C.F.R. pt. 404, subpt. P, App. 1 (pt. A) (1999). If the claimant’s impairment matches or is equal to one of the listed impairments, he qualifies for benefits without further inquiry. See 20 C.F.R. §§ 404.1520(d), 416.920(d). If the person cannot qualify under the listings, the evaluation proceeds to the fourth and fifth steps. At these steps, analysis is made of whether the person can do his own past work or any other work that exists in the national economy, in view of his age, education, and work experience. If he cannot do his past work or other work, the claimant qualifies for benefits. See 20 C.F.R. §§ 404.1520(e)-(f), 416.920(e)-(f); Sullivan v. Zebley, 493 U.S. 521, 525-26, 110 S.Ct. 885, 107 L.Ed.2d 967 (1990); Yuckert, 482 U.S. at 141-42, 107 S.Ct. 2287; Anthony, 954 F.2d at 293. In Stone v. Heckler, 752 F.2d 1099 (5th Cir.1985), this court was confronted with another in a series of cases in which a decisive administrative determination was made against disability at step two on the grounds of non-severity through a literal application of the Secretary’s “severity” or “significant limitation” regulation. The Stone court pointed out that this Circuit had construed the regulation as setting the following standard in determining whether a claimant’s impairment is severe: “ ‘[A]n impairment can be considered as not severe only if it is a slight abnormality [having] such minimal effect on the individual that it would not be expected to interfere with the individual’s ability to work, irrespective of age, education or work experience.’ ” Stone, 752" }, { "docid": "22690569", "title": "", "text": "further provides that an individual “shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy....” 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B) (1982 & Supp. Ill 1985). The Secretary has established a five-step sequential evaluation process for determining whether a claimant is disabled. 20 C.F.R. §§ 404.1520, 416.920 (1986); see Bowen v. Yuckert, — U.S. —, 107 S.Ct. 2287, 2290-95, 96 L.Ed.2d 119 (1987); Campbell v. Bowen, 822 F.2d 1518, 1521 (10th Cir.1987). If a determination can be made at any of the steps that a claimant is or is not disabled, evaluation under a subsequent step is not necessary. Step one determines whether the claimant is presently engaged in substantial gainful activity. If he is, disability benefits are denied. If he is not, the decision maker must proceed to step two: determining “whether the claimant has a medically severe impairment or combination of impairments.” Bowen v. Yuckert, 107 S.Ct. at 2291. This determination is governed by the Secretary's severity regulations, 20 C.F.R. §§ 404.1520(c), 416.920(e) (1986), is based on medical factors alone, and, consequently, does not include consideration of such vocational factors as age, education, and work experience. Pursuant to the se verity regulations, the claimant must make a threshold showing that his medically determinable impairment or combination of impairments significantly limits his ability to do basic work activities, i.e., “the abilities and aptitudes necessary to do most jobs.” 20 C.F.R. §§ 404.1521(b), 416.921(b) (1986); accord Bowen v. Yuckert, 107 S.Ct. at 2291. Presumptively, if the medical severity of a claimant’s impairments is so slight that the impairments could not interfere with or have a serious impact on the claimant’s ability to do basic work activities, irrespective of vocational factors, the impairments do not prevent the claimant from engaging in substantial gainful activity. Bowen v. Yuckert, 107 S.Ct. at 2293. If the claimant is unable" }, { "docid": "20941492", "title": "", "text": "court erred in affirming the Secretary’s decision because the Secretary failed to consider the combined effect of his several physical impairments as well as the combined effect of his physical and mental impairments in determining whether these impairments were severe enough to prohibit basic work related activities as required under the Act. We agree. A claimant for disability benefits bears the burden of proving a disability, 42 U.S.C. § 423(d)(5); 20 C.F.R. § 404.1512(a) (1985), which is defined by statute as the “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months, ...” 42 U.S.C. § 423(d)(1)(A). To determine whether an individual is disabled, the Social Security Administration has promulgated regulations establishing a sequential evaluation process. 20 C.F.R. § 404.1520 (1985). If an individual is found not disabled at any step, further inquiry is unnecessary. 20 C.F.R. § 404.1520(a). Under the process, the AU must determine in sequence: (1) whether the claimant is currently engaged in substantial gainful activity; (2) if not, whether he has a severe impairment; (3) if so, whether that impairment meets the medical criteria of Appendix 1 which warrants a finding of disability without considering vocational factors; and (4) if not, whether the impairment prevents claimant from performing past relevant work. By satisfying step 3 or 4, the claimant establishes a prima facie case of disability which shifts the burden to the Secretary to show whether the claimant is able to perform other work considering his residual functional capacities and his age, education, and past work experience. Even though the AU concluded that Reichenbach’s impairments do not limit his residual functional capacity, he appears to have terminated his analysis at the second step of the sequence, finding that Reichenbach’s impairments were not severe. Accordingly, he denied disability without further analysis. The Secretary is authorized to deny claims if the claimant does not have an impairment or combination of impairments which" }, { "docid": "10936689", "title": "", "text": "a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy____ 42 U.S.C. §§ 423(d)(2)(A) & 1382c(a)(3)(B). The Secretary is authorized to establish rules and regulations, consistent with the Act, governing the determination of disability claims. 42 U.S.C. §§ 405(a) & 1383(d)(1). Pursuant to this authority, the Secretary established a five-step sequential procedure for determining whether a claimant is disabled. 20 C.F.R. §§ 404.1520, 416.920 (1983). Under the existing regulations, if the claimant is found not to be disabled under any one of the sequential tests, the analysis ends and the remaining steps of the analysis are not completed. See §§ 404.1520(a), 416.920(a). As the first step, the Secretary ascertains whether the claimant is working; if so, a finding of “not disabled” follows. In the second step, the Secretary determines, solely on the basis of medical factors, whether the claimant has a “severe” impairment which “significantly limits [his] physical or mental ability to do basic work activities.” §§ 404.1520(c), 416.920(c). The regulation specifically provides that at this second step the Secretary “will not consider your age, education, and work experience.” Plaintiff’s first ground relates to this refusal to consider vocational factors in the second step and the resulting possibility that vocational factors will be foreclosed if the inquiry stops after the second step. If the claimant is determined to have a “severe” impairment under this definition, the Secretary next considers (Step 3) whether the impairment is one which is listed in Appendix 1 of the regulations; if so, the claimant is found to be disabled without requirement of further proof that the impairment prevents him from working. The fourth step comes into play if the claimant’s impairment, though deemed “severe” under the second step, is not a “listed” impairment under the third step. In such cases, the Secretary determines (Step 5) whether, considering the claimant’s age, education, and work experience, his" }, { "docid": "16496799", "title": "", "text": "to perform basic work-related functions, a finding shall be made that he or she does not have a severe impairment and therefore is not under a disability without consideration of the vocational factors. 20 C.F.R. § 404.1503(c) (1979). The Secretary subsequently revised this regulation to read as follows: If you do not have any impairments) which significantly limits your physical or mental ability to do basic work activities, we will find that you do not have a severe impairment and are, therefore, not disabled. We will not consider your age, education, and work experience. 20 C.F.R. § 1520(c) (1980). Plaintiffs have not argued that the 1980 change was substantive rather than editorial. At the time the wording of the regulations changed from “slight impairment” to “not ... severe,” the Secretary stated that the change “was not intended to alter the levels of severity for a finding of disabled or not disabled.” 43 Fed.Reg. 9297 (1978); see also 43 Fed.Reg. 55357-58 (1978). If the impairment is determined to be severe, the sequential evaluation requires consideration of whether the claimant is conclusively presumed disabled because the impairment fits within one of the listed impairments. If not, the evaluation continues by determining if claimant can perform his or her past work or, finally, whether s/he is able to perform other work in the economy. See 20 C.F.R. § 404.1520(d)-(f) (1988). The Secretary’s avowed purpose in changing the regulations in 1978 was to streamline the five-step evaluation process by insuring that all claims in which no severe impairment existed vtere disposed of at step two, thus avoiding the bureaucratic expense of following the vocational evaluation sequence, see 45 Fed.Reg. 55574 (1980). Although Yuckert foreclosed plaintiffs’ argument that 20 C.F.R. §§ 404.1520(c) and 416.920(c) were facially invalid on the ground that they did not consider a claimant’s age, education, or work experience as required by the statutory definition of disability, plaintiffs sought to proceed on remand on their claim that since 1978 the Secretary had systematically applied the regulations to deny benefits at step two to claimants whose impairments do meet the statutory definition of" }, { "docid": "23612353", "title": "", "text": "disabled if he or she is unable “to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months...” The Act provides that “for purposes of” applying this definition, an individual “shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work____” The Secretary is authorized to establish rules and regulations, consistent with the Act, governing the determination of disability claims. Before 1978, the Secretary’s regulations set forth a general discussion of the factors to be applied in evaluating disability claims. In pertinent part, it was stated that disability “is determined from all the facts of [the] case. Primary consideration is given to the severity of the individual’s impairment. Consideration is also given to such other factors as the individual’s age, education, and work experience. Medical considerations alone can justify a finding that the individual is not under a disability where the only impairment is a slight neurosis, slight impairment of sight or hearing, or other slight abnormality or a combination of slight abnormalities. On the other hand, medical considerations alone ... can, except where other evidence rebuts a finding of ‘disability’... justify a finding that the individual is under a disability where his impairment ... is listed in the appendix to the subpart____” In 1978 the Secretary revised the regulations, establishing a five-step sequential procedure for determining whether a claimant is disabled. These regulations were modified again in 1980, primarily to make their language clearer. Under the" }, { "docid": "22857439", "title": "", "text": "activity: the individual’s age, his education, his job experience, and his functional capacity to work. See 42 U.S.C. §§ 423(d)(2)(B) and 1382c(a)(3)(B). The Regulations promulgated by the Secretary to administer benefit payments require that a five-step sequential process be followed in evaluating all claims of mental or physical disability. 20 C.F.R. §§ 404.-1520 and 416.920. First, the claimant must establish that he is not engaged in substantial gainful activity at the time he seeks benefits. 20 C.F.R. §§ 404.1520(b) and 416.920(b). Second, the individual must show that he has a severe impairment”; that is, an impairment or combination of impairments which “significantly limits ... physical or mental ability to do basic work activities.” 20 C.F.R. §§ 404.1520(c) and 416.920(c); see Farris v. Secretary of Health & Human Services, 773 F.2d 85, 89-90 (6th Cir.1985). A claimant who has been determined to suffer from a severe impairment proceeds to the third step of the process in which the Secretary must determine whether the medical evidence alone establishes the claimant’s inability to engage in substantial gainful activity. At this stage, the claimant’s impairment is matched against the specific medical disorders listed in appendix 1 of the Regulations. 20 C.F.R. Part 404, Subpt. P, App. 1. An individual who can show that he suffers from a listed impairment, or its medical equivalent, will be found disabled regardless of his age, education, or work experience. 20 C.F.R. §§ 404.1520(d) and 416.920(d); Gambill v. Bowen, 823 F.2d 1009, 1011 (6th Cir.1987). 1. The Appendix 1 Listings for Mental Disability In order to establish disability due to the presence of a mental impairment on the basis of medical evidence alone, a claimant must satisfy the requirements of one of the nine listings for mental impairment contained in appendix 1. Most of these listings impose two requirements: first, that the claimant possess certain particular signs or symptoms; and second, that the symptoms result in a specified degree of functional limitation. The symptoms are generally found in paragraph A of each listing and, hence, are referred to as the “A criteria.” The “functional limitations associated with mental disorders" }, { "docid": "10936690", "title": "", "text": "factors, whether the claimant has a “severe” impairment which “significantly limits [his] physical or mental ability to do basic work activities.” §§ 404.1520(c), 416.920(c). The regulation specifically provides that at this second step the Secretary “will not consider your age, education, and work experience.” Plaintiff’s first ground relates to this refusal to consider vocational factors in the second step and the resulting possibility that vocational factors will be foreclosed if the inquiry stops after the second step. If the claimant is determined to have a “severe” impairment under this definition, the Secretary next considers (Step 3) whether the impairment is one which is listed in Appendix 1 of the regulations; if so, the claimant is found to be disabled without requirement of further proof that the impairment prevents him from working. The fourth step comes into play if the claimant’s impairment, though deemed “severe” under the second step, is not a “listed” impairment under the third step. In such cases, the Secretary determines (Step 5) whether, considering the claimant’s age, education, and work experience, his impair ment prevents him from doing any other work available in the national economy. If the claimant cannot, he is found to be disabled and his claim is approved. See Canon v. Harris, 651 F.2d 513, 517 (7th Cir.1981). The Secretary acknowledges that the effect of the sequential procedure is that denials of claims at the second step occur “on the basis of medical considerations alone.” SSR 82-56 (cum. ed. 1982). To implement this policy, SSR 82-55 lists 20 impairments which are nonsevere per se on the basis of medical evidence alone. SSR 82-55 is binding on all SSA personnel, including administrative law judges and the Appeals Council. The challenged regulations, 20 C.F.R. §§ 404.1522 and 416.922 (1983) provide: “We will consider the combined effects of unrelated impairments only if all are severe.” In addition to these regulations, SSR 82-55 instructs Social Security administrators not to consider the combined effects of nonsevere impairments because inasmuch “as a nonsevere impairment is one which does not significantly limit basic work-related functions, neither will a combination of two" }, { "docid": "23379263", "title": "", "text": "reason of any medically determinable physical or mental impairment” and the impairment is of such severity that the person “is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful activity which exists in the national economy.” Under 42 U.S.C. § 1382c(a)(3)(C), “a physical or mental impairment is an impairment that results from anatomical, physiological, or psychological abnormalities which are demonstra- ■ ble by medically acceptable clinical and laboratory diagnostic techniques.” The standard for review of SSI disability determinations is whether the Secretary’s decision is supported by substantial evidence. 42 U.S.C. § 1383(c)(3). Under the sequential disability evaluation procedure promulgated by the Secretary and codified at 20 C.F.R. § 416.920, the statutory test for disability is broken down into a five step inquiry. An initial determination is made as to whether the claimant is currently engaged in substantial gainful activity; if so, the claimant is found “not disabled.” Second, the AU must find that the claimant has a severe impairment or impairments. A severe impairment is defined in the negative; 20 C.F.R. § 416.921 states that a nonsevere impairment is one that “does not significantly limit [the claimant’s] physical or mental abilities to do basic work activities.” If the claimant does not have a severe impairment, she is found “not disabled.” If a severe impairment is found, then the ALJ compares the claimant’s impairment against those listed in Appendix 1, 20 C.F.R. Subpart P, to see if, on the medical evidence alone, the claimant can be found to be disabled. If the claimant does not qualify as disabled solely on the basis of the listings, then residual functional capacity is determined, that is, the level of work the claimant is able to perform (sedentary, light or medium). If the claimant is found unable to return to past work, then her age, education and work experience are considered along with her residual functional capacity to determine whether there is other work in the national economy which she can perform. See 20 C.F.R. § 404.1520. The ultimate" }, { "docid": "20356221", "title": "", "text": "not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). Congress clarified this definition in 1967 with the addition of 42 U.S.C. § 423(d)(2)(A), which provides: For purposes of paragraph (1)(A) — (A) an individual ... shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work, but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work. In 1968, the Secretary issued a regulation which provided that “[mjedical considerations alone can justify a finding that the individual is not under a disability when the only impairment is a slight neurosis, slight impairment of sight or hearing or other slight abnormality or combination of slight abnormalities.” 20 C.F.R. § 404.1502(a) (1968). This regulation was replaced in 1978 with the current so-called severity test, which was incorporated as step two of the Secretary’s five-step sequential analysis for evaluating disability claims. 20 C.F.R. § 404.1520. The severity test provides: (c) You must have a severe impairment. If you do not have any impairments) which significantly limits your physical or mental ability to do basic work activities, we will find that you do not have a severe impairment and are therefore, not disabled. We will not consider your age, education, and work experience. However, it is possible for you to have a period of disability for a time in the past even though you do not now have a severe impairment. “Severe impairment” is defined in 20 C.F.R. § 404.1521, which is set out in the margin. If a claimant is determined not to have a severe impairment at step two, a finding of not disabled is made without further consideration under steps three through five. 20 C.F.R. § 404.1520(a). Step 3 lists various impairments which" }, { "docid": "22813406", "title": "", "text": "key point then becomes what is meant by a severe impairment. In Lofton, the court stated that a disability determination is made on the basis of medical evidence alone, without consideration of vocational factors where the medical evidence indicates that claimant does not have a severe impairment. In the amended regulations of 1968, the Secretary stated: “Medical considerations alone can justify a finding that the individual is not under a disability where the only impairment is a slight neurosis, slight impairment of sight or hearing, or other slight abnormality or a combination of slight abnormalities.” 20 C.F.R. § 404.1502(a) (1968). In the 1978 regulations, the Secretary stated: Where an individual does not have any impairment(s) which significantly limits his or her physical or mental capacity to perform basic work related functions a finding shall be made that he/she does not have a severe impairment, and therefore is not under a disability without consideration of the vocational factors. 20 C.F.R. § 404.1503(c). The 1978 regulations were modified in 1980 to state: If you do not have any impairment(s) which significantly limits your physical or mental ability to do basic work activities, we will find that you do not have a severe impairment and are, therefore, not disabled. We will not consider your age, education, and work experience. 20 C.F.R. § 404.1520(c). (b) Basic Work Activities. When we talk about basic work activities, we mean the abilities and aptitudes necessary to do most jobs. Examples of these include— (1) physical functions such as walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, or handling; (2) capacities for seeing, hearing, and speaking; (3) understanding, carrying out, and remembering simple instructions; (4) use of judgment; (5) responding appropriate to supervision, coworkers, and usual work situations; and (6) dealing with changes in a routine work setting. 20 C.F.R. § 404.1521(b). The administrative law judge in this case applied the 1978 definition of severe impairment. Subsequent to the decision of the administrative law judge, the 1980 regulations were set forth. However, the magistrate continued to apply the 1978 regulations used by the administrative law judge. The government," }, { "docid": "18277662", "title": "", "text": "practice, an applicant cannot receive benefits unless she or he is first determined to be “severely disabled.” The determination of whether an applicant is “severely disabled” is made without regard to factors such as age, education, and work experience. The claim of each of the plaintiffs was denied because the Secretary determined the “severely disabled” standard was not met. Each of the plaintiffs alleges that, if her or his disability were found to be “severe,” she or he would meet each of the other requirements for receiving disability benefits. DISCUSSION Regulations promulgated by the Secretary set out a sequential process for evaluation of disability claims under the Social Security Act. See 20 C.F.R. §§ 404.1520, 416.920 (1985). A finding of “not disabled” at any one of the steps terminates consideration of the application. 20 C.F.R. § 404.-1520(a) (1985). The sequential process involves the following steps: 1). A determination of whether the claimant is currently engaged in substantial gainful activity. 20 C.F.R. § 404.-1520(b) (1985). 2) . A determination of whether the claimant’s impairment is “severe,” without consideration of the claimant’s age, education, or work experience. 20 C.F.R. § 404.1520(e) (1985). 3) . If the impairment is considered to be “severe,” a determination of whether the claimant’s impairment is listed in Appendix 1 of the Secretary’s regulations. 20 C.F.R. § 404.1520(d) (1985). If the impairment is listed, the claimant is considered disabled. 4) . If the impairment is considered to be “severe,” but is not listed in Appendix 1 of the Secretary’s regulations, a determination of whether the claimant can do past relevant work. 20 C.F.R. § 404.-1520(e) (1985). 5) . A determination of whether, considering the claimant’s residual functional capacity, age, education and past work experience, the claimant can perform any other work. 20 C.F.R. § 1520(f) (1985). It is the second step in the process which Plaintiffs challenge. The Social Security Act (the Act) includes the following definition of “disability”: [I]nability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has" }, { "docid": "10936688", "title": "", "text": "the plaintiffs’ motion for summary judgment is granted and the Secretary’s cross-motion is denied. I. THE CHALLENGED REGULATIONS AND THE ACT Plaintiffs challenge the above regulations on two grounds: (1) 404.1520(c) and 416.920(c) do not consider vocational factors (age, education, and work experience) and residual functional capacities; and (2) 404.1522, 416.922, and SSR 82-55 do not combine “nonsevere” impairments. Before proceeding to consider the validity of these regulations, an overview of the regulations and the Act is helpful. The OASDI and SSI programs provide for the payment of benefits to disabled persons. Under both programs, a person is considered disabled if he or she is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months... 42 U.S.C. §§ 423(d)(1)(A) & 1382c(a)(3)(A). The Act provides that “for purposes of” applying this definition, an individual shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy____ 42 U.S.C. §§ 423(d)(2)(A) & 1382c(a)(3)(B). The Secretary is authorized to establish rules and regulations, consistent with the Act, governing the determination of disability claims. 42 U.S.C. §§ 405(a) & 1383(d)(1). Pursuant to this authority, the Secretary established a five-step sequential procedure for determining whether a claimant is disabled. 20 C.F.R. §§ 404.1520, 416.920 (1983). Under the existing regulations, if the claimant is found not to be disabled under any one of the sequential tests, the analysis ends and the remaining steps of the analysis are not completed. See §§ 404.1520(a), 416.920(a). As the first step, the Secretary ascertains whether the claimant is working; if so, a finding of “not disabled” follows. In the second step, the Secretary determines, solely on the basis of medical" }, { "docid": "20941493", "title": "", "text": "Under the process, the AU must determine in sequence: (1) whether the claimant is currently engaged in substantial gainful activity; (2) if not, whether he has a severe impairment; (3) if so, whether that impairment meets the medical criteria of Appendix 1 which warrants a finding of disability without considering vocational factors; and (4) if not, whether the impairment prevents claimant from performing past relevant work. By satisfying step 3 or 4, the claimant establishes a prima facie case of disability which shifts the burden to the Secretary to show whether the claimant is able to perform other work considering his residual functional capacities and his age, education, and past work experience. Even though the AU concluded that Reichenbach’s impairments do not limit his residual functional capacity, he appears to have terminated his analysis at the second step of the sequence, finding that Reichenbach’s impairments were not severe. Accordingly, he denied disability without further analysis. The Secretary is authorized to deny claims if the claimant does not have an impairment or combination of impairments which significantly limit his physical or mental ability to do basic work activities. 20 C.F.R. § 404.1520(c). An impairment is “not severe” or insignificant only if it is a slight abnormality which has such a minimal effect on the individual that it would not be expected to interfere with the individual’s ability to work, irrespective of age, education, or work experience. Evans v. Heckler, 734 F.2d 1012, 1014 (4th Cir.1984). To determine whether an individual’s impairments are of sufficient severity, 42 U.S.C. § 423(d)(2)(C) provides: [T]he Secretary shall consider the combined effect of all of the individual’s impairments without regard to whether any such impairment, if considered separately, would be of such severity. If the Secretary does find a medically severe combination of impairments, the combined impact of the impairments shall be considered throughout the disability determination process. P.L. 98-460, Social Security Disability Reform Act 1984 § 4(a)(1); to be codified at 42 U.S.C. § 423(d)(2)(C). The notes following the codification of this new section provide, however, that “this section shall apply with respect to determinations" }, { "docid": "23445436", "title": "", "text": "impairment in a particular case ... constitutes a disability ... is determined from all the facts of that case. Primary consideration is given to the severity of the individual’s impairment. Consideration is also given to such other factors as the individual’s age, education, and work experience. Medical considerations alone can justify a finding that the individual is not under a disability where the only impairment is a slight neurosis, slight impairment of sight or hearing, or other slight abnormality or a combination of slight abnormalities. On the other hand, medical considerations alone (including the physiological and psychological manifestations of aging) can, except where other evidence rebuts a finding of “disability,” e.g. the individual is actually engaging in substantial gainful activity, justify a finding that the individual is under a disability where his impairment ... is listed in the appendix to this subpart or the Secretary determines his impairment (or combined impairments) to be medically the equivalent of a listed impairment. 20 C.F.R. § 404.1502(a) (1968). Appendix 1 of the regulations, the “Listing of Impairments”, was introduced in 1968 to describe in detailed diagnostic terms, quantified where possible, those impairments “which are of a level of severity deemed sufficient to preclude an individual from engaging in any gainful activity”. § 404.1506 (1968). A claimant suffering from a “listed impairment”, if actually unemployed, was entitled to disability benefits without any need to consider the effect of his age, education, or work experience on his ability to do other work. Under the 1968 regulations, a claimant whose medical condition was neither so serious as the per se disabling “listed impairments” in Appendix 1 nor merely one of the “slight abnormalities” mentioned in § 404.1520(a) (1968) would have his application considered on all the facts, including the degree to which his age, education, and work experience combined with his impairment to affect his ability to engage in substantial gainful activity. In 1978, the Secretary issued new regulations, 43 F.R. 55349, which were modified in 1980, 45 F.R. 55566. Promulgated to achieve “greater program efficiency” by “limiting the number of cases in which it would" }, { "docid": "20356222", "title": "", "text": "§ 404.1502(a) (1968). This regulation was replaced in 1978 with the current so-called severity test, which was incorporated as step two of the Secretary’s five-step sequential analysis for evaluating disability claims. 20 C.F.R. § 404.1520. The severity test provides: (c) You must have a severe impairment. If you do not have any impairments) which significantly limits your physical or mental ability to do basic work activities, we will find that you do not have a severe impairment and are therefore, not disabled. We will not consider your age, education, and work experience. However, it is possible for you to have a period of disability for a time in the past even though you do not now have a severe impairment. “Severe impairment” is defined in 20 C.F.R. § 404.1521, which is set out in the margin. If a claimant is determined not to have a severe impairment at step two, a finding of not disabled is made without further consideration under steps three through five. 20 C.F.R. § 404.1520(a). Step 3 lists various impairments which are considered per se disabling and a claimant with a listed impairment or its medical equivalent is determined disabled irrespective of age, education and work experience. § 404.1520(d). If a claimant has a severe impairment, but it does not meet or equal a listed impairment, his disability status is further evaluated under steps 4 and 5. Step 4 evaluates a claimant’s residual functional capacity and ability to perform his previous work. § 404.1520(e). Step 5 applies if the claimant is found to be incapable of doing his past work. Under step 5, the Secretary determines whether the claimant, considering his age, education and work experience, can perform any other work, and if he can not, he is found disabled. § 404.1520(f). Additionally, on August 20, 1980, the Secretary promulgated a list of examples of impairments which were to be held not severe as a matter of law, regardless of whether they prevented the claimant’s performance of his past work. SSR 82-55. II. The Cross-Motions for Summary Judgment This court is not the first, and will" } ]

[ { "docid": "15393367", "title": "", "text": "collecting the amount deemed owed by the Renegotiation Board. Moreover, case-by-case review would encourage the filing of frivolous appeals by plaintiffs seeking only to delay payment of Board orders. Such a result would clearly contradict the Congressional Intention to utilize the pay now, litigate later sequence of § 1218. Such changed circumstances might include revision of a tendered 100 percent bond based on plaintiff’s good faith estimate of Federal income tax credit when the actual figures became known. See note 1, supra. Additionally, other circumstances might necessitate an adjustment of the dollar amount, e.g., recalculation by the Board of the amount deemed excessive. However, it is clear that such revision occurs only after the initial filing of a 100 percent bond. Nichols, Judge, concurring: I concur in the opinion and judgment but would like to add the following observations. We have in the above case and in Bannercraft Clothing Co., Inc., post at 199, two more of what bids fair to be an endless series of impecunious defense contractors seeking relief from excessive profits determinations. We naturally think of one /who has allegedly realized excessive profits as being richer than we would deem proper. Why is he so often at the other end of the economic scale? If we can explain this apparent paradox, a more satisfactory disposition of the cases may be possible. At times tlie condition results from an uneven distribution of profit and loss contracts over different fiscal years, with insufficient impact of carry forward and other equalization measures. See my article, Equalizing Profit and Loss In Renegotiation, 45 Va. Law Rev. 41 (1959). Other times, those in control of corporations or partnerships have taken advantage of the usual long lapse of time between the end of a fiscal year and a Board order dealing with that year, to drain off the profits to transferees. Despite mistaken assertions to the contrary, dissenting in Sandnes’ Sons, Co. v. United States, 199 Ct. Cl. 107, 120, 462 F. 2d 1388, 1395 (1972), it is also perfectly possible for a person who never does business with the United States, never" } ]

[ { "docid": "22011393", "title": "", "text": "MEMORANDUM DECISION BRIE ANT, District Judge. All defendants but one in this shareholders derivative action move for an order dismissing the complaint pursuant to Rules 12(b)(6) or 12(b)(1) or 9(b) and 11, F.R.Civ.P., or alternatively, for a stay against further prosecution of the action, and for costs. Plaintiffs are shareholders of Solitron Devices, Inc. (“Solitron”) a New York corporation, the stock of which is publicly traded. Defendants are the corporation itself, two accounting firms and persons now or formerly members of Solitron’s management, directors and officers. The underlying facts as developed at the hearing held on this motion, or appearing of record, may be summarized briefly. On March 19, 1975, the Securities and Exchange Commission (“SEC”) filed an action against Solitron in the District Court for the District of Columbia. This action was terminated on April 17, 1975 by a stipulation and order pursuant to which Solitron undertook to conduct an inquiry to determine the extent to which certain financial filings with the SEC previously made by Solitron should be re-stated and corrected. Solitron was the only party to that litigation. The complaint there alleged that Solitron had violated various provisions of the federal securities laws by reporting false and misleading financial information. Thereafter, a number of class actions were filed in this Court by persons who claimed that they had purchased or sold Solitron securities in reliance on financial statements of Solitron claimed to be false. These cases have been consolidated pursuant to my Order filed June 11, 1975 in Sirota v. Solitron Devices, Inc., 75 Civ. 1369, and that litigation is hereafter referred to for convenience as the “Consolidated Class Action.” A consolidated amended complaint has been filed in that action. Price Water-house & Co., one of the movants here, is not, and probably will not be, named as a defendant in the consolidated class action. The pleading in this action, filed April 21, 1975, is entitled “Verified Complaint in Derivative Action.” It shows on its face (i[2) “plaintiff [sic] brings this claim for relief derivatively, in the right and for the benefit of Solitron.” The claim pleaded" }, { "docid": "11814719", "title": "", "text": "were urged below and found wanting by the district court, which held that the arbitration award was enforceable under the provisions of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, implemented by Title 9 of the United States Code Chapter 2 (§§ 201-208 inclusive), and that the judgment of Curacao was enforceable under Article 53 of the New York Civil Practice Law and Rules, CPLR §§ 5301-5309 McKinney’s Consol.Laws c. 8 inclusive, entitled Recognition of Foreign Country Money Judgments. Because the facts are set forth in extensive detail in Judge Wyatt’s capable opinion below, The Island Territory of Curacao v. Solitron Devices, Inc., 356 F. Supp. 1 (S.D.N.Y.1973), we will state them only generally for purposes of ease of comprehension here. Suffice it to say that the underlying written agreement between Curacao and Solitron which was executed in Curacao on January 12, 1968, provided basically that, because Solitron wanted an electronics plant there and Curacao and the Netherlands Antilles wanted to attract industry to the islands and create jobs, Curacao agreed to establish an industrial park of about 60 acres and to construct two factory buildings pursuant to Solitron-ap-proved plans and to build an access road and sea water pipes to the building sites; Solitron was to lease the buildings for 20 years at a specified rent and to operate in the larger building and to use or sublease the smaller one, agreeing to put its electronic manufacturing industry into operation within 12 months of completion of the larger building and to “create” at least 100 jobs. Solitron also undertook to “establish itself or otherwise prior to January 1, 1974 manufacturing industries not yet established in the Netherlands Antilles which will in total provide employment for at least 3,000 persons” (including Solitron’s own employees). It was agreed that the laws of the Netherlands Antilles would be applicable to the agreement and that all disputes as a consequence of or in connection with it, legal as well as factual, should be submitted to a board of arbitration, the decision of which would be binding. The usual provisions were" }, { "docid": "11814737", "title": "", "text": "in context at most constitutes an acknowledgment of the fact that the attempted revocation in May of 1970 had become effective by the date of the marshal’s writ in April of 1971 (a matter which we need not and do not affirmatively decide here). That is to say, the marshal’s language to the effect that the respondent is no longer domiciled in the Netherlands Antilles relates to the time of the issuance and presentation of the writ in April, 1971. Appellant argues strenuously, and on two different bases, that — to the extent that the arbitral award consists of damages in lieu of welfare payments that Curacao would have had to make as a result of Solitron’s breach of the obligation to create 100 jobs — the award is unenforceable and, therefore, a judg ment based upon it is unenforceable under' New York law. These two bases urged are, first, that New York will vacate an arbitral award if the arbitrators’ construction of a document is “completely irrational.” Lentine v. Fundaro, 29 N.Y.2d 382, 385, 278 N.E.2d 633, 635, 328 N.Y.S.2d 418, 422 (1972). The other is that there are some matters, such as the custody of children, Hill v. Hill, 199 Misc. 1035, 104 N.Y.S.2d 755 (Sup. Ct.1951), and the distribution of decedents’ estates, Swislocki v. Spiewak, 273 App.Div. 768, 75 N.Y.S.2d 147 (1st Dep’t 1947), leave to appeal denied, 273 App. Div. 808, 76 N.Y.S.2d 269 (1948), which are simply not subject to arbitration under New York law. It is Solitron’s point that Solitron did not accept a delegation to it by Curacao of the “sovereign duty to provide social welfare payments to any part of the unemployed on the island.” But this, of course, entirely misses the point that what the arbitrators were doing — and in a very cautious way they did it, with basis in fact — was attempting to fix damages for the purpose of ascertaining the extent of Solitron’s liability for breach of its conceded obligation under the agreement to create 100 jobs. While an American court in similar circumstances, or an American" }, { "docid": "19383086", "title": "", "text": "chooses to call it. If the United States interposes between a manufacturer or dealer and his customers, leaving him no alternative but to sell his product to the government on the government’s terms, that is a taking. The contrary argument or defense here is that Erika, Inc. could refuse to do any business with the United States, sell its kidney dialysis material to patients for cash only, and leave the patients to collect the government benefits when entitled. Whether this is valid depends on economic factors we would need evidence to resolve that we do not have. A trial to obtain it is not necessary in the absence of indications that recovery on a fifth amendment theory would produce a larger award than what will ensue on the theory we espouse. Still, the constitutional theory is colorable, and being colorable, it aids our jurisdiction, which otherwise is probable but far from certain. The court therefore ought not to have given the theory the short shrift it has, and it should not have said Erika’s participation in the program was \"voluntary,” which may be true and may be but a legal fiction. The voluntary nature of anyone’s transactions with the government is not a simple matter to determine. Cf. Sandnes’ Sons, Inc. v. United States, 199 Ct. Cl. 107, 462 F.2d 1388 (1972) where volunta-riness was debated between majority and minority of this court sitting en banc. Erika may have, probably has, made its constitutional allegations mostly to aid our jurisdiction, and we should not spurn this aid. 647 F. 2d 129 ORDER ON defendant’s motion for rehearing The defendant has requested us to make clear that our opinion of October 22,1980, was not intended to invalidate a portion of section 5010.1 of the Medicare Carriers Manual. In that opinion we held that in determining the plaintiffs reimbursable \"reasonable charges” for Medicare services, The Prudential Insurance Company of America (Prudential), the plaintiff s insurance carrier, did not comply with the Medicare statute and the. implementing regulations of the Secretary of Health, Education, and Welfare. The statute and regulations require that Medicare" }, { "docid": "16540643", "title": "", "text": "or a contracting officer’s final decision is appealed, the contractor receives a de novo determination in the Court of Claims or before a board of contract appeals. 50 U.S.C. App. § 1218 (1970 & Supp. V 1975); Southwest Welding & Mfg. Co. v. United States, 188 Ct. Cl. 925, 954, 413 F.2d 1167, 1184-85 (1969). In both classes of case, this de novo proceeding is the first in which the contractor is afforded due process. Lichter v. United States, 334 U.S. 742, 791-92 (1948); Sandnes’ Sons, Inc. v. United States, 199 Ct. Cl. 107, 112-13, 462 F.2d 1388, 1391-92 (1972); L. Rosenman Corp. v. United States, 182 Ct. Cl. 586, 588 n.2, 390 F.2d 711, 712 n.2 (1968). Even burdens of persuasion may be identical in both types of proceedings: in renegotiation cases, the plaintiff of course has the burden of proof as to disputed accounting data; however, with regard to the existence and amount of excessive profits the Government has the burden of persuasion after the contractor has met its burden of going forward, Lykes Bros. S.S. Co. v. United States, 198 Ct. Cl. 312, 459 F.2d 1393 (1972); Camel Mfg. Co. v. United States, 215 Ct. Cl. 460, 572 F. 2d 280 (1978); in certain types of cases \"under the contract,” the Government must also bear the ultimate burden of persuasion, Lykes Bros. S.S. Co. v. United States, 198 Ct. Cl. at 329, 459 F.2d at 1403, citing Eastern Tool & Mfg. Co., ASBCA No. 4815, 58-2 BCA ¶ 1947 (excess costs of reprocurement). The sum of it is that, for present purposes, renegotiation does not differ significantly from contract disputes, and therefore that plaintiff, which accepts the application of the ASPR clause to professional fees incurred in the course of an appeal to a board of contract appeals or in a court suit to review such a board decision (see, e.g., Reed & Prince Mfg. Co., ASBCA No. 3172, 59-1 BCA ¶ 2172 (1959), note 18, infra), cannot complain that it is improper to reimburse professional expenses at one stage of a continuous process while denying reimbursement" }, { "docid": "21295772", "title": "", "text": "aggrieved by an order of the Board, however, he may under section 108 of the Act (50 U.S.C. App. § 1218) file a petition with this court — such as the present action — for a redetermination of the amount of excessive profits. The suit is to be heard and determined de novo, not as a proceeding to review the determination of the Board. The petition was prior to 1972 filed in the Tax Court; at that time jurisdiction was transferred to this Court. Act of July 1,1971, Pub. L. No. 92-41, 85 Stat. 97, 50 U.S.C. App. § 1218 (Supp. V 1975). If the contractor does not pay the amount ordered by the Board, and brings the proceeding for redetermination with which we are now concerned, the filing of the petition in this court acts as a stay of execution of the order of the Board if, but only if, within 10 days of the filing of the petition, the plaintiff files with the court a bond in the amount determined by the court. 50 U.S.C. App. § 1218 (Supp. V 1975). The court has provided in Rule 26 that the amount of the bond shall be 100 percent of the Board decision less applicable tax credits. Absent such a stay of execution, the Government will ordinarily be entitled to judgment on its customary counterclaim for the amount determined by the Board. In one case the court held that a contractor in bankruptcy might on prescribed proofs press his suit without filing a bond, in the interest of preserving his constitutional right to challenge the unilateral determination of the Board. Sandnes’ Sons, Inc. v. United States, 199 Ct. Cl. 107, 462 F.2d 1388 (1972). The instant petitioner applied for the same privilege, on the ground of financial hardship. It was denied relief, the Government was granted judgment on its counterclaim for $157,432.55, the amount ordered by the Board less applicable taxes, and the petitioner has satisfied the judgment: O’Brien Gear & Machine Co. v. United States, 199 Ct. Cl. 1014 (1972). By and large, therefore, it may be said" }, { "docid": "16540642", "title": "", "text": "relevant the analogy to contract-appeals litigation (administrative and judicial) — the cost of which would not be reimbursable under the ASPR clause. The informal negotiation which characterizes proceedings before the Renegotiation Board also accurately portrays the process occurring between a contractor and the contracting officer when attempts are first made to resolve \"under the contract” disputes. Similarly, in each type of proceeding, the reaching of an agreement (between the contractor and the Renegotiation Board, or between the contractor and the contracting officer) finally resolves the dispute. Moreover, failure to reach an agreement initiates a similar process in each type of proceeding; under the Renegotiation Act, if negotiations reach an impasse, the statutory board issues a unilateral order which becomes final and conclusive if not contested within 90 days, 50 U.S.C. App. § 1215 (1970 & Supp. V 1975), while decisions of the contracting officer concerning a dispute are also final unless appealed to a board of contract appeals within 30 days of receipt, Standard Disputes Clause, Standard Form 23-A (October 1969). When the unilateral order or a contracting officer’s final decision is appealed, the contractor receives a de novo determination in the Court of Claims or before a board of contract appeals. 50 U.S.C. App. § 1218 (1970 & Supp. V 1975); Southwest Welding & Mfg. Co. v. United States, 188 Ct. Cl. 925, 954, 413 F.2d 1167, 1184-85 (1969). In both classes of case, this de novo proceeding is the first in which the contractor is afforded due process. Lichter v. United States, 334 U.S. 742, 791-92 (1948); Sandnes’ Sons, Inc. v. United States, 199 Ct. Cl. 107, 112-13, 462 F.2d 1388, 1391-92 (1972); L. Rosenman Corp. v. United States, 182 Ct. Cl. 586, 588 n.2, 390 F.2d 711, 712 n.2 (1968). Even burdens of persuasion may be identical in both types of proceedings: in renegotiation cases, the plaintiff of course has the burden of proof as to disputed accounting data; however, with regard to the existence and amount of excessive profits the Government has the burden of persuasion after the contractor has met its burden of going forward," }, { "docid": "15516610", "title": "", "text": "stay is an integral part of the bond provision of 50 U.S.C. App. § 1218. Without such a time limitation, it seems apparent that the Congressional intention of prompt payment to protect the Government’s interest could be circumvented by the filing of frivolous appeals by plaintiffs seeking only to forestall compliance. Thus, even if the tendered collateral was of the type approved by this court, its tardy filing would preclude the granting of a stay of execution of the Board’s orders. Since plaintiff’s belated tender of an interest in real estate as collateral does not comply with, our rule to stay the execution of the Board’s orders, defendant’s motions for judgment must be granted absent some unusual or mitigating circumstances that excuse plaintiff’s failure. In the instant case, plaintiff has not succeeded in making such a showing. The thrust of plaintiff’s opposition to defendant’s motions is centered on the alleged financial hardship plaintiff would suffer if judgment was entered. However, the mere assertion of potential financial hardship has been held to be insufficient to prevent the entry of a judgment in aid of execution. Manufacturers Service Co., Inc. v. United States, supra, and O'Brien Gear & Machine Co. v. United States, 199 Ct. Cl. 1014 (1972). In the instant case, plaintiff has presented nothing that would persuade this court to apply a different standard. As to plaintiff’s jurisdictional challenge, we are of the belief that our holding in Sandnes’ Sons, Inc. v. United States, 199 Ct. Cl. 107, 462 F. 2d 1388 (1972), is dispositive. Plaintiff argues that defendant’s motion for judgment in aid of execution is, in effect, a counterclaim, by whatever name it is called. As such, our statutory authority for granting judgment on a counterclaim, 28 U.S.C. § 2508, precludes our rendering of the requested judgment while plaintiff’s claim in chief is undecided. In other words, plaintiff asserts the Government does not presently have any claim for money damages and will only obtain a claim if the defendant prevails in the principal action. This is the exact argument we rejected in Sandnes’ Sons, Inc. v. United States," }, { "docid": "23517720", "title": "", "text": "of proof, together or separately mandate the complete eclipse of the Board and its personnel that has occurred. Defendant in the rehearing motion before us has been blunt, far beyond the criticisms usual in rehearing motions. It says we have denied it the possibility of success in future renegotiation trials here, and fouled up the future operations of the administrative board. I respect bluntness in advocacy, and wish we had more of it. But it invites bluntness in return. I have been blunt and I will further bluntly say the prospects of success of defendant in future renegotiation cases here are less than rosy, unless it can persuade itself to adapt to our decisions. This is not, however, to say I think defendant should have been done markedly better than it did, in our reported decisions to date, with a different style of advocacy, or other testimony. In most of them, plaintiffs had things going for them that no procedure or allocation of burden of proof could have leached away. This is markedly true of the case immediately before us. Major Goat Go. had government business forced on it against its will, and had to drop its major civilian customers, as a result, to its great and apparently lasting detriment. At least, in our other reported cases, the contractors were in defense business voluntarily. Gf. observations of Cowen, Ghief Judge, in Sandnes’ Sons, Inc. v. United States, 199 Ct. Cl. 107, 120, 462 F.2d 1388, 1395 (1972): * * * The most important consideration, and one which the plaintiff has failed to meet, is that it became subject to renegotiation only because it voluntarily entered into contractual relationships with the United States. That its contracts would be subject to renegotiation was expressly stated in the contracts; it is inarguable that the plaintiff is chargeable with knowledge of the terms of its contracts and the statutes and regulations governing Federal procurement. * * * While the court’s fact recitals show that Major Coat did sign the contracts awarded to it, they also strongly suggest duress or at least compulsion, which in" }, { "docid": "22862140", "title": "", "text": "OAKES, Circuit Judge: This securities class action was tried on the theory that Solitron Devices, Inc. (Solitron), and certain of its officers, aided and abetted by its accountants, Louis Sternbach & Co. (Sternbach), intentionally issued annual reports and financial statements containing materially false misrepresentations of the company’s sales, income, and inventories. The plaintiff class, purchasers of Solitron shares on the public market (the American Stock Exchange), received a general verdict and favorable answers to special interrogatories from a jury in the United States District Court for the Southern District of New York, before Charles L. Brieant, Jr., Judge. The Solitron defendants appeal from the court’s denial of their motion to decertify the class, made on the ground that the named representatives had purchased their shares after the date stipulated as the closing date for their subclass; from the court’s decision not to set aside the verdict against them with respect to fiscal year-end financial statements for 1967, 1968, and 1970; from the amount of damages; and from the court’s exclusion of certain proffered testimony. The plaintiffs cross-appeal from the court’s decision to set aside the verdict against the Solitron defendants with respect to fiscal year-end financial statements for 1972, 1973, and 1974; and from the court’s decision to set aside the verdict against Sternbach with respect to the 1967, 1968, and 1970 reports. We reverse the damage award and the decision to grant judgment in Sternbach’s favor notwithstanding the verdict, and remand for redetermination of damages and determination of the amount of contribution owed Sternbach by the Solitron defendants. I. PACTS Solitron, a manufacturer of electronic semi-conductors, was subject by virtue of its contracts with the United States government to the Renegotiation Act of 1951, as amended, 50 U.S.C.App. §§ 1211-1233. In 1972 the Eastern Regional branch of the United States Renegotiation Board, which enforces the Act’s limits on profits from government contracts, determined that Solitron had realized renegotiable profits of $3.2 million in fiscal year 1967 and $4.4 million in fiscal year 1968. Solitron, seeking administrative review of the Board’s assessment, retained Price Waterhouse & Co. to reexamine its" }, { "docid": "15516611", "title": "", "text": "the entry of a judgment in aid of execution. Manufacturers Service Co., Inc. v. United States, supra, and O'Brien Gear & Machine Co. v. United States, 199 Ct. Cl. 1014 (1972). In the instant case, plaintiff has presented nothing that would persuade this court to apply a different standard. As to plaintiff’s jurisdictional challenge, we are of the belief that our holding in Sandnes’ Sons, Inc. v. United States, 199 Ct. Cl. 107, 462 F. 2d 1388 (1972), is dispositive. Plaintiff argues that defendant’s motion for judgment in aid of execution is, in effect, a counterclaim, by whatever name it is called. As such, our statutory authority for granting judgment on a counterclaim, 28 U.S.C. § 2508, precludes our rendering of the requested judgment while plaintiff’s claim in chief is undecided. In other words, plaintiff asserts the Government does not presently have any claim for money damages and will only obtain a claim if the defendant prevails in the principal action. This is the exact argument we rejected in Sandnes’ Sons, Inc. v. United States, supra, and we again reject today. We thus conclude that where an approved surety or collateral bond is not timely filed, the Government possesses an immediate right to seek a judgment in aid of execution. This court lias jurisdiction to grant defendant’s motions for judgments under 28 U.S.C. §2508 in renegotiation cases, even though the claim in chief is undecided. Such judgment will be granted absent some compelling showing of unusual or mitigating circumstances. Accordingly, defendant’s motions for judgment in aid of execution of the Board’s orders are granted and judgment is entered in the amount of seven hundred seventy-seven thousand nine hundred twenty-nine dollars and thirty-five cents ($777,929.35), with interest as provided by law. 50 U.S.C. App. § 1215(b) ft). Renegotiable sales for the two years were as follows : EX 1966 — $2,349,882.50 EX 1967 — $5,000,884.24 Renegotiable profit for each component year was as follows: EX 1966 — $ 187,530.94 EX 1967 — $1,638,450.21 Annual excessive profits, adjusted for taxes measured by Income, other than Federal taxes, were as follows: EX 1966" }, { "docid": "16540687", "title": "", "text": "being a claim by the government, does not suddenly lose that character because the procedures the government has prescribed by statute maneuver the prior claimee (if I can coin a word) into becoming at that point a petitioner in a judicial or quasi-judicial tribunal. A true claim against the government is one which was that from the day it was born, of which we have many examples in our jurisprudence. Most claims before the ASBCA, claims for equitable adjustment for change orders, etc., are in that category, so I do not leave § 15.205.31(d) with nothing to apply to. I confess that my analysis has not been much aided by the efforts of both parties to put across their own theories of the nature of renegotiation, and a lot of briefing effort has been wasted so far as my feeble intellect is concerned. It does stick in my mind as an incontrovertible fact that a unilateral order of the Renegotiation Board was and is a demand for money by the government. It may and may not be successful. There is nothing in the Renegotiation Act to require a contractor to set aside funds to pay future such demands. Solitron Devices, Inc. v. United States, 210 Ct. Cl. 352, 537 F.2d 417 (1976), cert. denied, 430 U.S. 930 (1977), and cases cited therein, illustrate a wide variety of instances where the contractor has not set money aside and as a result, is unable to pay the refund the board proposes. Contractors who cannot pay usually cannot obtain a bond to stay execution of the board’s order under 50 U.S.C. app. § 1218. Accordingly, the government is entitled to obtain before trial and normally does obtain in such cases a judgment in aid of execution, for which it asks in a pleading called a counterclaim. It is my impression that such judgments are often uncollectible for the reason that the alleged excessive profits, if ever really realized, have long since been distributed to stockholders, or otherwise dissipated, which the statute in no way frowns on the contractor doing. Thus the pursuit of" }, { "docid": "15393359", "title": "", "text": "bond where changed circumstances dictate such an alteration. Such alteration of the dollar amount would be permitted only in those situations where one of the parties makes a showing that such adjustment is necessary to maintain the 100 percent equilibrium. To give this rule any other interpretation would have the effect of rendering the ten day filing time meaningless. Since we deem it clear from the above discussion that plaintiff’s tender of less than a 100 percent bond does not comply with our rule to stay the execution of the Board’s orders, defendant’s motion for judgment in aid of execution must be granted absent some unusual or mitigating circumstances that excuse plaintiff’s failure. In the instant case, plaintiff has not succeeded in making such a showing. This court has previously stated that a plaintiff seeking to avoid suffering execution of a judgment for failure to file the required bond must clearly show that the granting of the judgment might serve to “chill” the de novo redetermination litigation. Sandnes’ Sons, Inc. v. United States, supra. The mere showing of financial hardship has been held to be insufficient to excuse noncompliance. O'Brien Gear & Machine Co. v. United States, 199 Ct. Cl. 1014 (1972). Plaintiff has not shown any circumstances which would justify our denial of defendant’s motion. In fact, plaintiff has merely asserted that the bond tendered in the instant case might well provide defendant with better protection than the Government might obtain through seizure of plaintiff’s assets under a judgment. Even assuming plaintiff’s assertions to be correct, we feel constrained to point out that it is defendant’s prerogative to decide for itself how it can best protect its interest. It is not the role of this court or plaintiff to make this executive determination. We thus conclude that where a 100 percent bond is not timely filed, the Government possesses an immediate right to seek a judgment in aid of execution. Such judgment will be granted absent some compelling showing of unusual or mitigating circumstances. It is defendant’s responsibility to use the judgment wisely. If defendant ascertains that the Government" }, { "docid": "23517721", "title": "", "text": "the case immediately before us. Major Goat Go. had government business forced on it against its will, and had to drop its major civilian customers, as a result, to its great and apparently lasting detriment. At least, in our other reported cases, the contractors were in defense business voluntarily. Gf. observations of Cowen, Ghief Judge, in Sandnes’ Sons, Inc. v. United States, 199 Ct. Cl. 107, 120, 462 F.2d 1388, 1395 (1972): * * * The most important consideration, and one which the plaintiff has failed to meet, is that it became subject to renegotiation only because it voluntarily entered into contractual relationships with the United States. That its contracts would be subject to renegotiation was expressly stated in the contracts; it is inarguable that the plaintiff is chargeable with knowledge of the terms of its contracts and the statutes and regulations governing Federal procurement. * * * While the court’s fact recitals show that Major Coat did sign the contracts awarded to it, they also strongly suggest duress or at least compulsion, which in law may not be the same thing exactly. I would not automatically exempt from renegotiation a contract awarded under such circumstances since I do not think the law does so, but I would determine excessive profits and assess a refund only with the greatest hesitation, on clear and convincing evidence that the profits were, under all the statutory factors, excessive. In World War II, when renegotiation started, all defense contracting, practically, was subject to “rated orders.” In the Vietnam war situation, the burden on Major Coat was special and peculiar. The Army seems to have also used rated orders in Blue Belly Inc. v. United States, No. 603-71 (slip op. filed April 8,1977) but without the degree either of coercion or of detriment to the contractor’, shown in Major Ooat. In World War II a manufacturer practically had to have rated orders so he could stay in business. He needed the ratings to pass on to his suppliers. Thus, a “rated order” was then a benefit, even a necessity, not a detriment. I am unable" }, { "docid": "15393354", "title": "", "text": "the court. (Emphasis added) Both the House and Senate Eeports specifically stated that the word “only” was inserted to clarify the original intention of Congress: that the filing of a good and sufficient bond is required to stay an order of the Eenegotiation Board. H.E. Bee. No. 2549, 84th Cong., 2d Sess. 9-10 (1956) and S. Bee. No. 2624,84th Cong., 2d Sess. 11 (1956). The transfer of jurisdiction to this court in 1971 under Public Law 92-41 retained the substantive language of § 1218 after the 1956 amendment, and merely substituted the Court of Claims in place of the Tax Court as the redetermining court. This transfer of jurisdiction brought about one inci-dential change of possible significance. For the first time, both the collecting court and the redetermination court were one and the same. However, as we stated in Sandnes’ Sons, Inc. v. United States, 199 Ct. Cl. 107, 111, 462 F. 2d 1388, 1390 (1972), “without any clear indication [from Congress] that the position of the parties respecting collection is altered, no change would be implied.” In other words, the pay now, litigate later sequence has been carried over to judicial re-determination in this court. To summarize, Congress has consistently provided for immediate execution of an order of the Eenegotiation Board separate and apart from judicial redetermination in such cases. The legislators finally did permit a stay of execution, but then only together with the timely filing of a bond. Plaintiff, while not challenging the constitutionality of the pay now, litigate later technique employed by 50 U.S.C. App. § 1218, seems to take the position that the term “good and sufficient bond” when read in conjunction with “in such amount as may be fixed by the court” confers judicial discretion to set bond requirements on a case-by-case basis. In support of this premise, plaintiff places great reliance on the language of Ct. Cl. E. 26(e). However, plaintiff has misconstrued the court’s intention in promulgating this rule and reads more discretion into § 1218 than we feel was intended by Congress. In promulgating Ct. Cl. E. 26, this court followed" }, { "docid": "19383087", "title": "", "text": "in the program was \"voluntary,” which may be true and may be but a legal fiction. The voluntary nature of anyone’s transactions with the government is not a simple matter to determine. Cf. Sandnes’ Sons, Inc. v. United States, 199 Ct. Cl. 107, 462 F.2d 1388 (1972) where volunta-riness was debated between majority and minority of this court sitting en banc. Erika may have, probably has, made its constitutional allegations mostly to aid our jurisdiction, and we should not spurn this aid. 647 F. 2d 129 ORDER ON defendant’s motion for rehearing The defendant has requested us to make clear that our opinion of October 22,1980, was not intended to invalidate a portion of section 5010.1 of the Medicare Carriers Manual. In that opinion we held that in determining the plaintiffs reimbursable \"reasonable charges” for Medicare services, The Prudential Insurance Company of America (Prudential), the plaintiff s insurance carrier, did not comply with the Medicare statute and the. implementing regulations of the Secretary of Health, Education, and Welfare. The statute and regulations require that Medicare reimbursement be based upon the customary charge for such services in the locality where rendered during the \"calendar year” \"preceding” the year for which reimbursement was sought. Prudential based its determination of the plaintiffs reimbursement upon the plaintiffs charges on July 1, and refused to take account of the changes the plaintiff made in those charges, either before or after that date. We held that this was error because \"[t]he statute and regulations did not permit Prudential to consider only Erika’s charges on a single day in the middle of the preceding calendar year.” Ante at 264. Section 5010.1 of the Manual provides: When a carrier does not have adequate statistics on charges for suppliers of medical equipment, prosthetics, ambulance services, or for new services, the fees charged and the price lists in effect as of June 30 of that calendar year only should be used. The intent is to use a price list which can reasonably be assumed not to exceed the median of the prices charged by the supplier for his items and" }, { "docid": "21295773", "title": "", "text": "50 U.S.C. App. § 1218 (Supp. V 1975). The court has provided in Rule 26 that the amount of the bond shall be 100 percent of the Board decision less applicable tax credits. Absent such a stay of execution, the Government will ordinarily be entitled to judgment on its customary counterclaim for the amount determined by the Board. In one case the court held that a contractor in bankruptcy might on prescribed proofs press his suit without filing a bond, in the interest of preserving his constitutional right to challenge the unilateral determination of the Board. Sandnes’ Sons, Inc. v. United States, 199 Ct. Cl. 107, 462 F.2d 1388 (1972). The instant petitioner applied for the same privilege, on the ground of financial hardship. It was denied relief, the Government was granted judgment on its counterclaim for $157,432.55, the amount ordered by the Board less applicable taxes, and the petitioner has satisfied the judgment: O’Brien Gear & Machine Co. v. United States, 199 Ct. Cl. 1014 (1972). By and large, therefore, it may be said that substantially every petitioner who seeks a redetermination of excessive profits has or will be required either to pay the amount ordered by the Board before or during the pendency of his suit for redetermination, or to give security in the form of a bond for the amount. Solitron Devices, Inc. v. United States, 210 Ct. Cl. 352, 537 F.2d 417 (1976), cert. denied, 430 U.S. 930 (1977). If the contractor who has paid prevails in his suit for a redetermination, he will obtain a judgment determining in what amount, less than that determined by the Board, excessive profits were realized. No judgment is given in this court for the difference between the amounts determined by the Board and by this court; the court is limited to a determination that no excessive profits were realized or that excessive profits were realized in a stated amount less than that determined by the Board. But section 108 of the Act itself provides that the successfúl contractor is to receive a refund following a determination in his favor:" }, { "docid": "16540688", "title": "", "text": "not be successful. There is nothing in the Renegotiation Act to require a contractor to set aside funds to pay future such demands. Solitron Devices, Inc. v. United States, 210 Ct. Cl. 352, 537 F.2d 417 (1976), cert. denied, 430 U.S. 930 (1977), and cases cited therein, illustrate a wide variety of instances where the contractor has not set money aside and as a result, is unable to pay the refund the board proposes. Contractors who cannot pay usually cannot obtain a bond to stay execution of the board’s order under 50 U.S.C. app. § 1218. Accordingly, the government is entitled to obtain before trial and normally does obtain in such cases a judgment in aid of execution, for which it asks in a pleading called a counterclaim. It is my impression that such judgments are often uncollectible for the reason that the alleged excessive profits, if ever really realized, have long since been distributed to stockholders, or otherwise dissipated, which the statute in no way frowns on the contractor doing. Thus the pursuit of the money to be refunded is a matter of considerable difficulty and may often fail, or succeed only in part. Whether the contractor can prosecute its petition here in no way turns on whether it has paid, or filed a bond, and I suppose we have adjudicated many cases where neither occurred. The court’s assertion in Part II that the petition by the contractor always seeks to obtain repayment of money already paid to the government, or else the freeing of money not yet fully available, because secured by a bond, may be accurate in the case of established government prime contractors such as Grumman, but in the sweeping form uttered in the opinion, disregards facts that are manifest in our published decisions. The court I imagine does not intend to limit its holding to cases as to which its generalization is true: it does not intend to hold that a renegotiation petition by Solitron in this court reflects a claim by the government, but one by Grumman a claim against the government. Thus the" }, { "docid": "15393353", "title": "", "text": "days after the filing of the petition the petitioner files with the Tax Court a good and sufficient bond, approved by such court, in such amount as may be fixed by the court. 50 U.S.C. App. § 1218 (1952). In explaining the addition of this bond provision, Representative Wilbur Mills of the House Ways and Means Committee stated on the floor of the House that the purpose of the bond language was to recognize in the statutory scheme existing informal practices followed by the Government under the first Eenegotiation Act. 50 TJ.S.C. App. § 1218 was subsequently amended by the Act of August 1,1956, ch. 821, § 11 (a), 70 Stat. 791, to read: * * * The filing of a petition under this section shall operate to stay the execution of the order of the Board * * * only if within ten days after the filing of the petition the petitioner files with the Tax Court a good and sufficient bond, approved by such court, in such amount as may be fixed by the court. (Emphasis added) Both the House and Senate Eeports specifically stated that the word “only” was inserted to clarify the original intention of Congress: that the filing of a good and sufficient bond is required to stay an order of the Eenegotiation Board. H.E. Bee. No. 2549, 84th Cong., 2d Sess. 9-10 (1956) and S. Bee. No. 2624,84th Cong., 2d Sess. 11 (1956). The transfer of jurisdiction to this court in 1971 under Public Law 92-41 retained the substantive language of § 1218 after the 1956 amendment, and merely substituted the Court of Claims in place of the Tax Court as the redetermining court. This transfer of jurisdiction brought about one inci-dential change of possible significance. For the first time, both the collecting court and the redetermination court were one and the same. However, as we stated in Sandnes’ Sons, Inc. v. United States, 199 Ct. Cl. 107, 111, 462 F. 2d 1388, 1390 (1972), “without any clear indication [from Congress] that the position of the parties respecting collection is altered, no change would" }, { "docid": "15393349", "title": "", "text": "Kunzig, Judge, delivered the opinion of the court: The question here at issue is whether the filing of a bond in an amount less than 100 percent of the net excessive profits found by the Eenegotiation Board (Board) is sufficient to stay the execution of the Board’s order during de novo redetermination in this court. A similar issue is presented in Bannercraft Clothing Co., Inc. v. United States, post at 199, 518 F. 2d 605 (1975). We bold tbat execution of tbe Board’s order is stayed only by the filing of a 100 percent bond. Plaintiff filed its petition in this court on September 17, 1974 for a redetermination of excessive profits for fiscal years 1967, 1968, and 1969, under Section 108 of the Renegotiation Act of 1951, 50 U.S.C. App. § 1218, as amended (Supp. II, 1972). Its renegotiable sales, according to the petition, were $5,655,467 and its renegotiable profit was $981,957, of which the Board determined that $418,279 was excessive. Federal tax credits for the years at issue were de termined by the Internal Revenue Service to be $204,294.71, leaving tbe Board’s determination of net excessive profits at $213,984.29. On September 27, 1974, ten days after filing its petition, plaintiff tendered to the court bonds in the amount of $150,000, approximately 70 percent of the net amount of the Board’s orders. Accompanying the bond was a motion for waiver of Ct. Cl. R. 26(b) and for leave to file bond in lesser amount. Defendant filed its opposition to plaintiff’s motion on October 3, 1974 and, on November 7, 1974, filed the present motion for judgment in aid of execution of the Board’s orders, the single issue now before this court. Plaintiff’s opposition to defendant’s motion is grounded on the same arguments presented to Trial Judge White in plaintiff’s motion for waiver of Ct. Cl. R. 26(b) and accompanying request to file bond in lesser amount. It is plaintiff’s position that this court has discretion to determine the amount of bond needed to stay execution of a Board order; that a trial judge, under Ct. Cl. R. 26(e) has" } ]

[ { "docid": "19193950", "title": "", "text": "Opinion for the court filed by Circuit Judge BUCKLEY. BUCKLEY, Circuit Judge: This case concerns the negotiability of six proposals presented by the Colorado Nurses Association to the Veterans Administration Medical Center in Fort Lyons, Colorado. The Federal Labor Relations Authority held that two of the six proposals are non-negotiable under the Federal Service Labor-Management Relations Act. Both parties petitioned for review. Because we find that Congress granted the VA Administrator exclusive discretion to establish regulations concerning the working conditions of its medical employees, we conclude that the Veterans Administration need not bargain over any of the contested proposals. I. Background The Colorado Nurses Association (“union”) represents a bargaining unit of the Department of Medicine and Surgery (“DM & S”) at the Veterans Administration’s Medical Center in Fort Lyons, Colorado. In the course of negotiating a collective bargaining agreement, the union offered six proposals that the Veterans Administration (“VA”) declared to be non-negotiable. The first would establish a grievance and arbitration procedure for DM & S professional medical employees concerning conditions of employment unrelated to disciplinary and adverse actions; the remaining five would impose certain limits on the VA’s flexibility in establishing work schedules. The VA refused to negotiate these matters because of its claim that the statute establishing the DM & S, 38 U.S.C. §§ 4101 et seq. (1982) (“DM & S Statute”) had granted its Administrator exclusive authority to prescribe the working conditions of all DM & S medical employees. As a consequence, the VA declared that it was not required by the Federal Service Labor-Management Relations Act, 5 U.S.C. §§ 7101 et seq. (1982) (“FSLRA”) to engage in collective bargaining with its nurses. Accordingly, the union filed an appeal with the Federal Labor Relations Authority (“FLRA”). The FLRA rejected the VA’s claim of exemption from the duty to negotiate because it found no conflict between the VA Administrator’s authority to establish working conditions for medical personnel and the VA’s obligation, as a federal employer, to negotiate with its employees. It reached this conclusion on the basis of its reading of the DM & S Statute, the existence" } ]

[ { "docid": "12609238", "title": "", "text": "elsewhere in labor law. For example, the National Labor Relations Act defines collective bargaining in a manner similar to the FSLMRS, calling collective bargaining the performance of the mutual obligation of the employer and the representative of the employees to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment, or the negotiation of an agreement, or any question arising thereunder, and the execution of a written contract incorporating any agreement reached if requested by either party. 29 U.S.C. § 158(d); see 5 U.S.C. § 7103(a)(12). This definition accords with the semantic meaning of “collective bargaining”: “negotiation for the settlement of the terms of a collective agreement between an employer ... and a union,” or “any union-management negotiation.” Webster’s Third New International Dictionary 445 (1981). We have consistently distinguished between the limited collective bargaining right provided by § 7422 and labor rights more broadly. In Local 589, we stated that “Congress has gradually extended some of the protections in chapter 71 of title 5 to VA medical personnel, for example ... by granting all VA medical personnel limited collective bargaining rights in 1991.” 73 F.3d at 395 (emphases added). Similarly, in United States Department of Veterans Affairs, Washington, D.C. v. FLRA, we differentiated the “right to negotiate collective bargaining agreements, or to administer such agreements through grievance arbitration procedures” from “other rights protected by the FSLMRS, including ‘the right to form, join, or assist a labor organization without fear of penalty or reprisal.’” 1 F.3d 19, 21 & n. 1 (D.C.Cir.1993) (quoting United States Department of Veterans Affairs, Veterans Administration Medical Center, San Francisco, Cal, 40 F.L.R.A. 290, 301 (April 19, 1991)); cf. FLRA v. United States Department of the Treasury, Financial Management Service, 884 F.2d 1446, 1449 (D.C.Cir.1989) (referring to “collective bargaining” as a “process” of “contract negotiation”); id. at 1461 (Sen-telle, J., concurring) (distinguishing between “collective bargaining” and “other representational activities”). Finally, the VA’s interpretation does violence to the statutory text. It would be nonsensical to read the phrase “engage in collective bargaining with respect to conditions" }, { "docid": "19263477", "title": "", "text": "basis of the grievance was the allegation that Dr. Savlov was removed from surgical duties at the age of seventy-six, and his “specialty pay” for surgery was discontinued, even though, allegedly, a female physician of approximately the same age, who had also been removed from surgical duty, continued to receive specialty pay. Dr. Savlov was denied specialty pay from 2000, when he was removed from surgical duty, until 2002, when he retired and ceased all work for the VA. He estimates that he was denied a total of approximately $46,000 in specialty pay, which he allegedly should have received in addition to his pay for his primary care duties. Title VII of the Civil Service Reform Act of 1978 (“CSRA”), codified at 5 U.S.C. §§ 7101-7135, governs labor management and relations for non-postal federal employees. The CSRA authorizes collective bargaining with certain federal employees. The CSRA also directs that a collective bargaining agreement (“CBA”) “shall provide procedures for the settlement of grievances.” 5 U.S.C. § 7121(a)(1). “[AJny grievance not satisfactorily settled under the negotiated grievance procedure shall be subject to binding arbitration which may be invoked by either the exclusive representative or the agency.” Id. at § 7121(b)(l)(C)(iii) (emphasis added). The grievance procedure in this case was the product of a CBA that the union, as labor’s “exclusive representative,” negotiated with the VA pursuant to 5 U.S.C. § 7114(a)(4). The United States Court of Appeals for the District of Columbia’s (“D.C.Circuit”) decision in Colorado Nurses Ass’n v. FLRA, 851 F.2d 1486 (D.C.Cir.1988), questioned whether the CSRA applied to the labor rights of VA medical professionals. In response to the Colorado Nurses decision, Congress enacted 38 U.S.C. § 7422 as part of the Department of Veterans Affairs Labor Relations Improvement Act of 1991 in an effort to grant VA medical professionals the title 5 collective bargaining rights enjoyed by other federal employees. While VA medical professionals now enjoy collective bargaining rights, including a grievance procedure, these rights are restricted by three significant exemptions designed to ensure adequate patient care and to prevent conflicts with statutorily established pay scales. The rights to" }, { "docid": "12609232", "title": "", "text": "the right to engage in collective bargaining,” and in this case, the ULPs were not based on a failure to engage in collective bargaining. Local 3669, 821 F.Supp.2d at 349. The court granted summary judgment in the Union’s favor, holding that the Under Secretary “exceeded his statutory authority” by excluding the ULPs under § 7422(b). Id. at 350-51. The VA appeals. II. DISCUSSION We review de novo a district court’s grant of summary judgment. Sherley v. Sebelius, 689 F.3d 776, 780 (D.C.Cir.2012). Summary judgment is appropriate if the moving party “shows that there is no genuine dispute as to any material fact” and that it “is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). Here, the relevant facts are not in dispute. The APA requires us to “hold unlawful and set aside agency action, findings, and conclusions found to be ... in excess of statutory jurisdiction, authority, or limitations, or short of statutory right.” 5 U.S.C. § 706(2). The VA contends that the Under Secretary’s decision excluding the ULPs was within his statutory authority because the phrase “collective bargaining” should be read broadly to encompass all labor rights. Because we agree with the district court that “collective bargaining” has a narrower meaning and does not include the ULPs at issue, we affirm. As always, we begin with the text of the statute. See Milner v. Department of the Navy, — U.S.-, 181 S.Ct. 1259, 1264, 179 L.Ed.2d 268 (2011). Because we conclude that “Congress has directly spoken to the precise question at issue” and that the text is unambiguous, our analysis also ends with the text. Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). 38 U.S.C. § 7422(a) provides: Except as otherwise specifically provided in this title, the authority of the Secretary to prescribe regulations under section 7421 of this title is subject to the right of Federal employees to engage in collective bargaining with respect to conditions of employment through representatives chosen by them in accordance with chapter 71 of title 5 (relating to labor-management" }, { "docid": "1991574", "title": "", "text": "of the Union’s proposals in light of the interpretation of § 7403 set forth in this opinion. I. STATUTORY BACKGROUND The Department of Medicine and Surgery, now the Veterans Health Administration, was created in 1946 “to provide a complete medical and hospital service for the medical care and treatment of veterans.” 38 U.S.C. § 7301(b). See Veterans’ Administration, Department of Medicine and Surgery, Pub.L. No. 79-293, 59 Stat. 675 (1946). Because at that time Congress was concerned that the civil service system was insufficiently flexible to accommodate the swift hiring necessary to satisfy the medical needs of returning World War II veterans, it created an independent personnel system for the VHA under title 38. Pub.L. No. 79-293, §§ 2-15, 59 Stat. at 675-79 (codified as amended at 38 U.S.C. §§ 7401-7474). See S.Rep. No. 858 (1945), reprinted in 1945 U.S. Code Cong. Serv. 956; S.Rep. No. 215, 100th Cong., 1st Sess. 145 (1987). The Secretary (then Administrator) of Veterans Affairs was authorized to “prescribe by regulation the hours and conditions of employment” of these employees without regard to “any law, Executive order, or regulation.” Pub.L. No. 79-293, § 7(b), 59 Stat. at 677 (codified as amended at 38 U.S.C. § 7421(a)). The specified personnel employed under this independent system are consequently referred to as “nonhybrid” employees because their employment is almost exclusively governed by title 38. • In 1978 Congress passed the Federal Service Labor-Management Relations Act of 1978, Pub.L. No. 95-154, 92 Stat. 1111 (codified at chapter 71 of title 5, 5 U.S.C. §§ 7101-7135), providing for collective bargaining rights of civil service employees generally, and establishing the FLRA in order to “carry[ ] out the purpose of ... chapter [71 of title 5].” 5 U.S.C. § 7105. Soon thereafter Congress amended title 38, adding § 4119 (now § 7425), to reemphasize that “where title 5 is ‘inconsistent \"with’ title 38, the latter governs.” American Fed’n of Gov’t Employees v. FLRA, 850 F.2d 782, 786 (D.C.Cir.1988) (quoting 38 U.S.C. § 4119 (Supp.IV 1980) (recodified at 38 U.S.C. § 7425)). See Veterans Administration Health-Care Amendments of 1980, Pub.L. No. 96-330," }, { "docid": "1991576", "title": "", "text": "§ 116(a)(1), 94 Stat. 1030, 1039 (1980). Nonhybrid VHA employees were not to enjoy the collective bargaining rights conferred upon civil service employees under title 5. Id. at 786-87; see also Colorado Nurses Ass’n v. FLRA, 851 F.2d 1486, 1491-92 (D.C.Cir.1988). In addition to these “nonhybrid” title 38 employees, Congress in 1983 created a new category of “hybrid” VHA employees who are subject to both title 38 and title 5. See Veterans’ Health Care Amendments of 1983, Pub.L. No. 98-160, §§ 201, 203(a), 97 Stat. 993, 1000 (codified as amended at 38 U.S.C. §§ 7401(3), 7403(f)(1) & (f)(2)). In creating the category of “hybrid” personnel Congress sought to improve the VHA’s ability to recruit and retain certain kinds of health care workers apart from the “nonhybrid” employees governed exclusively by the title 38 personnel system. In 1988 Congress further amended the VHA personnel provisions expressly to provide greater collective bargaining rights for these hybrid employees. See Veterans’ Benefits and Services Act of 1988, Pub.L. No. 100-322, § 221,102 Stat. 487, 531 (codified at 38 U.S.C. § 7403(f)(3)). In 1991 Congress conferred, for the first time, certain collective bargaining rights upon nonhy-brid employees as well. See Department of Veterans Affairs Health-Care Personnel Act of 1991, Pub.L. No. 102 — 40, § 202, 105 Stat. 187, 200-01 (codified at 38 U.S.C. § 7422). This case involves only the collective bargaining rights of hybrid employees as expressly set forth in § 7403(f)(3). II. Discussion The FLRA and the VA do not dispute that under § 7403, the Secretary need not bargain over the substantive criteria governing appointment, promotion and advancement of hybrid employees, e.g., time-in-grade requirements or qualifications. Nor do they dispute that the Secretary must bargain over the mechanics of grievance procedures (ie., the filing, processing, or resolving of grievances) even when the grievance procedures include the resolution of promotion-related grievances. See Respondent’s Brief at 6-7; Petitioner’s Brief at 15-18 ; United States Dep’t of Veterans Affairs Medical Center, Newington, CT, 37 F.L.R.A. 111 (1990) (arbitration of promotion-related grievance permissible under title 38). The parties do disagree, however, about whether promotion procedures" }, { "docid": "12609230", "title": "", "text": "[the] threshold legal issue” of whether he had “authority to apply any § 7422(b) exclusion in the first place.” American Federation of Government Employees Local 3669 v. Shinseki, 648 F.Supp.2d 87, 98 (D.D.C.2009) (internal quotation mark and brackets omitted). The court remanded to the VA “for a determination as to whether the charges filed by the [Union] with the [FLRA] qualify as ‘collective bargaining’ or ‘grievance procedures provided under a collective bargaining agreement’ within the meaning of § 7422(b).” Id. at 94-95. On remand, the Under Secretary determined that the ULPs both qualified as collective bargaining and arose out of professional conduct or competence, except to the extent that VAMC management’s letters to and meetings with Galle and Rafter addressed issues other than their and Krehnke’s professional conduct. FLRA lacks authority to review the VA’s determination or to exercise jurisdiction over ULPs that the Under Secretary excludes from collective bargaining pursuant to § 7422(d). See, e.g., United States Department of Veterans Affairs, Veterans Affairs Medical Center, Asheville, N.C., 57 F.L.R.A. 681, 683 (Jan. 31, 2002). Therefore, the Union filed a complaint in the district court under the Administrative Procedure Act (“APA”) alleging, among other things, that the Under Secretary’s determination was outside the scope of his statutory authority. See 5 U.S.C. § 706(2)(C). The VA moved for dismissal, and the Union and the VA filed cross motions for summary judgment. The district court granted summary judgment in favor of the Union on the § 706(2)(C) count of its complaint, concluding that “the Under Secretary erred in determining that the Union’s unfair labor practice charges relate to matters of ‘collective bargaining’ as that term is used in the FSLMRS and 38 U.S.C. § 7422.” American Federation of Government Employees Local 3669 v. Shinseki, 821 F.Supp.2d 337, 350 (D.D.C.2011) {“Local 3669”). The VA Act only permits the Under Secretary to exclude certain matters from “collective bargaining (and any grievance procedures provided under a collective bargaining agreement).” 38 U.S.C. § 7422(b). The court explained that “alleged violations of the right to form, join, or assist a union without reprisal do not necessarily implicate" }, { "docid": "1991601", "title": "", "text": "specifically provided in this title, the authority of the Secretary to prescribe regulations [for nonhybrid employees] under section 7421 of this title is subject to the right of Federal employees to engage in collective bargaining with respect to conditions of employment through representatives chosen by them in accordance with chapter 71 of title 5 (relating to labor management relations). (b) Such collective bargaining (and any grievance procedures provided under a collective bargaining agreement) in the case of [non-hybrid] employees ... may not cover, or have any applicability to, any matter or question concerning or arising out of (1) professional conduct or competence, (2) peer review, or (3) the establishment, determination, or adjustment of employee compensation under this title. (d) An issue of whether a matter or question concerns or arises out of (1) professional conduct or competence, (2) peer review, or (3) the establishment, determination, or adjustment of employee compensation under this title shall be decided by the Secretary and is not itself subject to collective bargaining and may not be reviewed by any other agency. 38 U.S.C. § 7422(a), (b), (d). . We assume that in reenacting the VHA personnel provisions in 1991, Congress’ retention of relevant statutory terms included their judicial construction in Colorado Nurses. See Apex Hosiery Co. v. Leader, 310 U.S. 469, 488, 60 S.Ct. 982, 989, 84 L.Ed. 1311 (1940); Ankenbrandt v. Richards, - U.S. -, -, 112 S.Ct. 2206, 2213, 119 L.Ed.2d 468 (1992); Dart v. United States, 848 F.2d 217, 229 (D.C.Cir.1988). We know for certain that Congress was aware of this court’s interpretation of § 7403(c) in Colorado Nurses. See H.R. Rep. No. 466, 101st Cong., 2d Sess. 27-28 (1990), see also 137 Cong. Rec. S4542-43 (daily ed. Apr. 17, 1991) (statement of Sen. Cranston, Chairman of the Committee on Veterans' Affairs). . Title 38 itself defines grievance procedures similarly as \"procedures for the consideration of grievances” when setting forth the Secretary’s power to prescribe such procedures for nonhy- brid employees. 38 U.S.C. § 7463(a). See also id. at §§ 7462, 7464. . We are not concerned here with a requirement that" }, { "docid": "1991575", "title": "", "text": "without regard to “any law, Executive order, or regulation.” Pub.L. No. 79-293, § 7(b), 59 Stat. at 677 (codified as amended at 38 U.S.C. § 7421(a)). The specified personnel employed under this independent system are consequently referred to as “nonhybrid” employees because their employment is almost exclusively governed by title 38. • In 1978 Congress passed the Federal Service Labor-Management Relations Act of 1978, Pub.L. No. 95-154, 92 Stat. 1111 (codified at chapter 71 of title 5, 5 U.S.C. §§ 7101-7135), providing for collective bargaining rights of civil service employees generally, and establishing the FLRA in order to “carry[ ] out the purpose of ... chapter [71 of title 5].” 5 U.S.C. § 7105. Soon thereafter Congress amended title 38, adding § 4119 (now § 7425), to reemphasize that “where title 5 is ‘inconsistent \"with’ title 38, the latter governs.” American Fed’n of Gov’t Employees v. FLRA, 850 F.2d 782, 786 (D.C.Cir.1988) (quoting 38 U.S.C. § 4119 (Supp.IV 1980) (recodified at 38 U.S.C. § 7425)). See Veterans Administration Health-Care Amendments of 1980, Pub.L. No. 96-330, § 116(a)(1), 94 Stat. 1030, 1039 (1980). Nonhybrid VHA employees were not to enjoy the collective bargaining rights conferred upon civil service employees under title 5. Id. at 786-87; see also Colorado Nurses Ass’n v. FLRA, 851 F.2d 1486, 1491-92 (D.C.Cir.1988). In addition to these “nonhybrid” title 38 employees, Congress in 1983 created a new category of “hybrid” VHA employees who are subject to both title 38 and title 5. See Veterans’ Health Care Amendments of 1983, Pub.L. No. 98-160, §§ 201, 203(a), 97 Stat. 993, 1000 (codified as amended at 38 U.S.C. §§ 7401(3), 7403(f)(1) & (f)(2)). In creating the category of “hybrid” personnel Congress sought to improve the VHA’s ability to recruit and retain certain kinds of health care workers apart from the “nonhybrid” employees governed exclusively by the title 38 personnel system. In 1988 Congress further amended the VHA personnel provisions expressly to provide greater collective bargaining rights for these hybrid employees. See Veterans’ Benefits and Services Act of 1988, Pub.L. No. 100-322, § 221,102 Stat. 487, 531 (codified at 38 U.S.C." }, { "docid": "1991572", "title": "", "text": "Opinion for the Court filed by Circuit Judge WALD. WALD, Circuit Judge: The Department of Veterans Affairs (“Petitioner” or “VA”) challenges a determination by the Federal Labor Relations Authority (“FLRA” or “Respondent”) that certain collective bargaining proposals submitted to the VA by the National Association of Government Employees, Local Rl-109 (“Union”) are negotiable. The Union is the exclusive bargaining representative for, inter alia, “hybrid” employees of the Veterans Health Administration (“VHA”) at the VA’s Newington, Connecticut Medical Center. During mid-term negotiations over the parties’ collective bargaining agreement, the Union submitted to the VA twelve proposals concerning procedures to be followed by Professional Standards Boards in reviewing their peers for promotion. The VA refused to negotiate over the proposals, on the grounds that they infringed upon the exclusive authority of the Secretary of Veterans Affairs to “prescribe[ ]” regulations for the “promotion and advancement” of hybrid VHA employees. See 38 U.S.C. § 7403(f)(1)(B) (Supp. Ill 1991) (incorporating by reference 38 U.S.C. § 7403(e)). The Union filed a negotiability appeal and the FLRA ultimately concluded that the proposals were negotiable because they concerned “matters relating to ... grievance procedures” within the meaning of § 7403(f)(3)’s exception to the Secretary’s exclusive authority over promotions. See National Ass’n of Gov’t Employees, Local R1-109, 44 F.L.R.A. No. 29 (Mar. 13, 1992) (“NAGE, Local Rl-109”). The VA challenges this determination. In reviewing the FLRA’s determination that the Union’s proposals are negotiable under § 7403(f)(3), we examine more generally chapter 74 of title 38, 38 U.S.C. §§ 7401-7474, governing VHA personnel administration, and its relation to chapter 71 of title 5, 5 U.S.C. §§ 7101-7135, governing collective bargaining rights of civil service employees generally. While we analyze the interlocking provisions of title 38, our interpretive approach is ultimately quite simple: we seek to give meaning to § 7403(f)(3)’s express limitation of negotiability to “matters relating to adverse actions, disciplinary actions, and grievance procedures.” Because we agree with the VA that proposals relating to peer review promotion procedures rather than grievance procedures are nonnegotiable under § 7403, we remand to the FLRA for a determination of the negotiability" }, { "docid": "1991577", "title": "", "text": "§ 7403(f)(3)). In 1991 Congress conferred, for the first time, certain collective bargaining rights upon nonhy-brid employees as well. See Department of Veterans Affairs Health-Care Personnel Act of 1991, Pub.L. No. 102 — 40, § 202, 105 Stat. 187, 200-01 (codified at 38 U.S.C. § 7422). This case involves only the collective bargaining rights of hybrid employees as expressly set forth in § 7403(f)(3). II. Discussion The FLRA and the VA do not dispute that under § 7403, the Secretary need not bargain over the substantive criteria governing appointment, promotion and advancement of hybrid employees, e.g., time-in-grade requirements or qualifications. Nor do they dispute that the Secretary must bargain over the mechanics of grievance procedures (ie., the filing, processing, or resolving of grievances) even when the grievance procedures include the resolution of promotion-related grievances. See Respondent’s Brief at 6-7; Petitioner’s Brief at 15-18 ; United States Dep’t of Veterans Affairs Medical Center, Newington, CT, 37 F.L.R.A. 111 (1990) (arbitration of promotion-related grievance permissible under title 38). The parties do disagree, however, about whether promotion procedures themselves are negotiable, and more generally about the scope of the Secretary’s obligation under § 7403(f)(3) to bargain over “all matters relating to ... grievance procedures.” 38 U.S.C. § 7403(f)(3). We note preliminarily that we owe no deference to the FLRA’s statutory interpretation where it has endeavored to “reconcile its organic statute [ie., chapter 71 of title 5— the Federal Service Labor-Management Relations Act] with a[nother] statute [ie., title 38] not within its area of expertise.” Colorado Nurses, 851 F.2d at 1488 (citations omitted). Accord Library of Congress v. FLRA, 699 F.2d 1280, 1286 n. 29 (D.C.Cir.1983). Consequently, our review of the FLRA’s interpretation of the scope of § 7403(f)(3) is de novo. See also Professional Airways Sys. Specialists, MEBA v. FLRA, 809 F.2d 855, 857-58 & n. 6 (D.C.Cir.1987) (FLRA’s refusal to award back pay subject to de novo review where decision rested on interpretation of its organic statute and another general statute). In our interpretive exercise, we turn first to the language of the VHA personnel provisions. Because we find the text clear," }, { "docid": "12609224", "title": "", "text": "Opinion for the Court filed by Senior Circuit Judge SENTELLE. SENTELLE, Senior Circuit Judge. The American Federation of Government Employees, AFL-CIO, Local 3669 (“the Union”), asserted unfair labor practice charges against the Department of Veterans Affairs (“VA”) on behalf of two nurses at a VA medical center. The VA determined that the charges were covered by the nurses’ statutory right of “collective bargaining” but that they “ar[ose] out of ... professional conduct or competence” within the meaning of 38 U.S.C. § 7422(a)-(b). Therefore, the VA decided that the charges were excluded from review by the Federal Labor Relations Authority (“FLRA”). The Union brought suit, alleging that the VA misread its statutory authority. The district court granted summary judgment in the Union’s favor, and the VA appeals. Because we agree with the district court that the VA’s decision erroneously interpreted its statutory authority, we affirm. I. BACKGROUND A. Statutory Framework The Federal Service Labor-Management Relations Statute (“FSLMRS”) governs federal labor relations and is codified in title 5, chapter 71 of the U.S.Code. See 5 U.S.C. §§ 7101-35. FSLMRS gives federal employees various labor rights, including the right “to form, join, or assist any labor organization ... freely and without fear of penalty or reprisal,” the right “to act for a labor organization in the capacity of a representative,” and the right “to engage in collective bargaining.” Id. § 7102. To protect these rights, FSLMRS authorizes the FLRA to adjudicate unfair labor practice complaints based on rights protected by FSLMRS. See id. §§ 7104, 7118. A separate statutory scheme governs the labor rights of VA medical professionals, including “[rjegistered nurses.” 38 U.S.C. § 7421(b)(5); see id. §§ 7401-74. Under this scheme, “[notwithstanding any law, Executive order, or regulation, the Secretary shall prescribe by regulation the hours and conditions of employment and leaves of absence of’ VA medical professionals. Id. § 7421(a). In Colorado Nurses Ass’n v. FLRA, we held that this statute gave the VA Secretary “unfettered discretion to issue regulations concerning the working conditions of’ VA medical professionals and released the VA from any mandatory collective bargaining obligation. 851 F.2d 1486," }, { "docid": "12609233", "title": "", "text": "authority because the phrase “collective bargaining” should be read broadly to encompass all labor rights. Because we agree with the district court that “collective bargaining” has a narrower meaning and does not include the ULPs at issue, we affirm. As always, we begin with the text of the statute. See Milner v. Department of the Navy, — U.S.-, 181 S.Ct. 1259, 1264, 179 L.Ed.2d 268 (2011). Because we conclude that “Congress has directly spoken to the precise question at issue” and that the text is unambiguous, our analysis also ends with the text. Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). 38 U.S.C. § 7422(a) provides: Except as otherwise specifically provided in this title, the authority of the Secretary to prescribe regulations under section 7421 of this title is subject to the right of Federal employees to engage in collective bargaining with respect to conditions of employment through representatives chosen by them in accordance with chapter 71 of title 5 (relating to labor-management relations) [i.e., the FSLMRS]. Chapter 71 of title 5, in turn, defines “collective bargaining” as the performance of the mutual obligation of the representative of an agency and the exclusive representative of employees in an appropriate unit in the agency to meet at reasonable times and to consult and bargain in a good-faith effort to reach agreement with respect to the conditions of employment affecting such employees and to execute, if requested by either party, a written document incorporating any collective bargaining agreement reached. 5 U.S.C. § 7103(a)(12). We do not accord Chevron deference to the VA’s interpretation of the FSLMRS because the VA does not administer that statute. See Chevron, 467 U.S. at 842, 104 S.Ct. 2778. The VA does not dispute that the ULPs at issue are outside the scope of the FSLMRS’s definition of collective bargaining: the Union’s filing of ULPs based on the right to assist a labor union, 5 U.S.C. § 7102, does not fall within FSLMRS’s right to bargain. Instead, the VA asserts that § 7422(a) does not import" }, { "docid": "1991600", "title": "", "text": "concede that ... promotions are grieva-ble under title 5,” NAGE Local Rl-109, at 6, its brief to this court concedes that “the Union might, consistent with [title 38], submit a proposal relating to the filing, processing, or resolving of grievances concerning the VA's failure to adhere to its promulgated policy regarding the promotion or advancement of hybrid employees.\" Petitioner's Brief at 16-17 (footnote omitted). . Colorado Nurses was decided prior to recodifi-cation and significant amendment of title 38 in 1991. See Pub.L. No. 102-40, 105 Stat. 224 (1991). In 1991, 38 U.S.C. §§ 4106(c), 4106(g)(1), and 4106(g)(3) were repealed and reenacted without substantive change, as 38 U.S.C. §§ 7403(c), 7403(f)(1), and 7403(f)(3), respectively.. Quotations from the earlier codification are the same as in the recodified version. . Section 4108(a) provides: Notwithstanding any law, Executive order, or regulation, the [Secretary] shall prescribe by regulation the hours and conditions of employment ... [of nonhybrid employees].... 38 U.S.C. § 4108(a) (1988) (recodified at 38 U.S.C. § 7421(a)). . Section 7422 provides in relevant part: (a) Except as otherwise specifically provided in this title, the authority of the Secretary to prescribe regulations [for nonhybrid employees] under section 7421 of this title is subject to the right of Federal employees to engage in collective bargaining with respect to conditions of employment through representatives chosen by them in accordance with chapter 71 of title 5 (relating to labor management relations). (b) Such collective bargaining (and any grievance procedures provided under a collective bargaining agreement) in the case of [non-hybrid] employees ... may not cover, or have any applicability to, any matter or question concerning or arising out of (1) professional conduct or competence, (2) peer review, or (3) the establishment, determination, or adjustment of employee compensation under this title. (d) An issue of whether a matter or question concerns or arises out of (1) professional conduct or competence, (2) peer review, or (3) the establishment, determination, or adjustment of employee compensation under this title shall be decided by the Secretary and is not itself subject to collective bargaining and may not be reviewed by any other" }, { "docid": "12609225", "title": "", "text": "7101-35. FSLMRS gives federal employees various labor rights, including the right “to form, join, or assist any labor organization ... freely and without fear of penalty or reprisal,” the right “to act for a labor organization in the capacity of a representative,” and the right “to engage in collective bargaining.” Id. § 7102. To protect these rights, FSLMRS authorizes the FLRA to adjudicate unfair labor practice complaints based on rights protected by FSLMRS. See id. §§ 7104, 7118. A separate statutory scheme governs the labor rights of VA medical professionals, including “[rjegistered nurses.” 38 U.S.C. § 7421(b)(5); see id. §§ 7401-74. Under this scheme, “[notwithstanding any law, Executive order, or regulation, the Secretary shall prescribe by regulation the hours and conditions of employment and leaves of absence of’ VA medical professionals. Id. § 7421(a). In Colorado Nurses Ass’n v. FLRA, we held that this statute gave the VA Secretary “unfettered discretion to issue regulations concerning the working conditions of’ VA medical professionals and released the VA from any mandatory collective bargaining obligation. 851 F.2d 1486, 1492 (D.C.Cir.1988). Following Colorado Nurses, Congress passed the Department of Veterans Affairs Labor Relations Improvement Act of 1991, Pub. L. No. 102-40, title II, § 202, 105 Stat. 187, 200 (“VA Act”), which provides in relevant part: Except as otherwise specifically provided in this title, the authority of the Secretary to prescribe regulations under section 7421 of this title is subject to the right of Federal employees to engage in collective bargaining with respect to conditions of employment through representatives chosen by them in accordance with chapter 71 of title 5 (relating to labor-management relations). 38 U.S.C. § 7422(a). Thus, Congress extended a right of collective bargaining to VA medical professionals, but it imposed three limitations on this bargaining right: Such collective bargaining (and any grievance procedures provided under a collective bargaining agreement) in the case of [VA medical professionals] may not cover, or have any applicability to, any matter or question concerning or arising out of (1) professional conduct or competence, (2) peer review, or (3) the establishment, determination, or adjustment of employee compensation" }, { "docid": "12609239", "title": "", "text": "to VA medical personnel, for example ... by granting all VA medical personnel limited collective bargaining rights in 1991.” 73 F.3d at 395 (emphases added). Similarly, in United States Department of Veterans Affairs, Washington, D.C. v. FLRA, we differentiated the “right to negotiate collective bargaining agreements, or to administer such agreements through grievance arbitration procedures” from “other rights protected by the FSLMRS, including ‘the right to form, join, or assist a labor organization without fear of penalty or reprisal.’” 1 F.3d 19, 21 & n. 1 (D.C.Cir.1993) (quoting United States Department of Veterans Affairs, Veterans Administration Medical Center, San Francisco, Cal, 40 F.L.R.A. 290, 301 (April 19, 1991)); cf. FLRA v. United States Department of the Treasury, Financial Management Service, 884 F.2d 1446, 1449 (D.C.Cir.1989) (referring to “collective bargaining” as a “process” of “contract negotiation”); id. at 1461 (Sen-telle, J., concurring) (distinguishing between “collective bargaining” and “other representational activities”). Finally, the VA’s interpretation does violence to the statutory text. It would be nonsensical to read the phrase “engage in collective bargaining with respect to conditions of employment,” 38 U.S.C. § 7422(a), as “engage in labor rights with respect to conditions of employment.” Given the clear definition of collective bargaining, we hold that the district court correctly held that the VA Under Secretary lacked authority under § 7422(d) to exclude these ULPs from the FLRA’s jurisdiction. The VA acknowledges — indeed, argues — that the phrase “collective bargaining” should be read the same in § 7422(a) and § 7422(b). As we have shown, “collective bargaining” in § 7422(a) has a narrow definition focused on negotiating a labor agreement, so “collective bargaining” in § 7422(b) has the same narrow meaning. The VA also relies on legislative history, but that rebanee is fundamentally flawed. Legislative history cannot create ambiguity in a clear statutory text. See Milner, 131 S.Ct. at 1267. Congress’s intent is clear. “If the intent of Congress is clear, that is the end of the matter.” Chevron, 467 U.S. at 842, 104 S.Ct. 2778. A necessary predicate to holding that a § 7422(b) exception to collective bargaining appbes is that collective" }, { "docid": "19263478", "title": "", "text": "procedure shall be subject to binding arbitration which may be invoked by either the exclusive representative or the agency.” Id. at § 7121(b)(l)(C)(iii) (emphasis added). The grievance procedure in this case was the product of a CBA that the union, as labor’s “exclusive representative,” negotiated with the VA pursuant to 5 U.S.C. § 7114(a)(4). The United States Court of Appeals for the District of Columbia’s (“D.C.Circuit”) decision in Colorado Nurses Ass’n v. FLRA, 851 F.2d 1486 (D.C.Cir.1988), questioned whether the CSRA applied to the labor rights of VA medical professionals. In response to the Colorado Nurses decision, Congress enacted 38 U.S.C. § 7422 as part of the Department of Veterans Affairs Labor Relations Improvement Act of 1991 in an effort to grant VA medical professionals the title 5 collective bargaining rights enjoyed by other federal employees. While VA medical professionals now enjoy collective bargaining rights, including a grievance procedure, these rights are restricted by three significant exemptions designed to ensure adequate patient care and to prevent conflicts with statutorily established pay scales. The rights to grievance procedures provided by a CBA do not extend to three statutorily exempted types of disputes, relevantly including “any matter or question concerning or arising out of (1) professional conduct or competence ... or (3) the establishment, determination, or adjustment of employee compensation under this title.” Id. § 7422(b). Section 7422(d) provides that whether a matter concerns or arises from one of the exemptions of § 7422(b) “shall be decided by the Secretary and is not itself subject to collective bargaining and may not be reviewed by any other agency.” 38 U.S.C. § 7422(d). After exhausting the procedures of the negotiated grievance process, AFGE Local 2152, acting on Dr. Savlov’s behalf, sought to have the grievance resolved by a labor arbitrator, in accordance with the terms of the CBA. Before the dispute was finally submitted to the arbitrator, VA Under Secretary Roswell issued a “decision paper,” under the authority of 38 U.S.C. § 7422(d), determining that the grievance was exempt from the terms of the CBA because the grievance involved issues of “professional conduct or" }, { "docid": "12609226", "title": "", "text": "1492 (D.C.Cir.1988). Following Colorado Nurses, Congress passed the Department of Veterans Affairs Labor Relations Improvement Act of 1991, Pub. L. No. 102-40, title II, § 202, 105 Stat. 187, 200 (“VA Act”), which provides in relevant part: Except as otherwise specifically provided in this title, the authority of the Secretary to prescribe regulations under section 7421 of this title is subject to the right of Federal employees to engage in collective bargaining with respect to conditions of employment through representatives chosen by them in accordance with chapter 71 of title 5 (relating to labor-management relations). 38 U.S.C. § 7422(a). Thus, Congress extended a right of collective bargaining to VA medical professionals, but it imposed three limitations on this bargaining right: Such collective bargaining (and any grievance procedures provided under a collective bargaining agreement) in the case of [VA medical professionals] may not cover, or have any applicability to, any matter or question concerning or arising out of (1) professional conduct or competence, (2) peer review, or (3) the establishment, determination, or adjustment of employee compensation under this title. Id. § 7422(b). The VA Act gives the Secretary of Veterans Affairs exclusive authority to decide whether one of these limitations applies, see id. § 7422(d), though the Secretary can delegate this authority to the Under Secretary for Health, as he did here. This appeal turns on the meaning of the phrase “collective bargaining” in the VA Act. B. Factual and Procedural Background This case arose following a December 12, 2007, arbitration hearing in which the Union challenged the termination of a VA respiratory therapist. During the hearing, a VA nurse named Anita Krehnke testified in support of VA management. Two VA nurses and Union members, Barbara Galle and Karen Rafter, then allegedly testified that Krehnke’s performance as a nurse was substandard. A VA Medical Center (“VAMC”) staff attorney reported to the VAMC’s Nurse Executive, Christine Lund, that Galle and Rafter so testified. After receiving this report, Lund began an investigation into whether Galle and Rafter violated VAMC policy by failing to notify VAMC management that another nurse was providing substandard care." }, { "docid": "1991599", "title": "", "text": "National Ass’n of Gov’t Employees, Local Rl-109, 44 F.L.R.A. No. 29 at 12-14 (Mar. 13, 1992) • (Appendix). . Unless otherwise indicated, references to the United States Code are to the third supplement, 1991, and the parenthetical indication will be omitted. . See Department of Veterans Affairs HealthCare Personnel Act of 1991, Pub.L. No. 102-40, § 2, 105 Stat. 187. . \"Nonhybrid” employees are currently (i) physicians, (ii) dentists, (iii) podiatrists, (iv) optometrists, (v) nurses, (vi) physician assistants, and (vii) expanded-function dental auxiliaries. See 38 U.S.C. § 7403(a)(2). Since 1946 the retirement of all VHA employees has been subject to the title 5 retirement provision governing civil service employees. See Pub.L. No. 79-293, § 9, 59 Stat. at 678 (codified as amended at 38 U.S.C. § 7426). . All other VHA health care personnel, i.e., who are neither \"hybrid” nor \"nonhybrid\", are employed under the regular civil service system of title 5. See generally S. Rep. No. 215, 100th Cong., 1st Sess. 141-45 (1987). . While in the FLRA proceeding below, the VA did \"not concede that ... promotions are grieva-ble under title 5,” NAGE Local Rl-109, at 6, its brief to this court concedes that “the Union might, consistent with [title 38], submit a proposal relating to the filing, processing, or resolving of grievances concerning the VA's failure to adhere to its promulgated policy regarding the promotion or advancement of hybrid employees.\" Petitioner's Brief at 16-17 (footnote omitted). . Colorado Nurses was decided prior to recodifi-cation and significant amendment of title 38 in 1991. See Pub.L. No. 102-40, 105 Stat. 224 (1991). In 1991, 38 U.S.C. §§ 4106(c), 4106(g)(1), and 4106(g)(3) were repealed and reenacted without substantive change, as 38 U.S.C. §§ 7403(c), 7403(f)(1), and 7403(f)(3), respectively.. Quotations from the earlier codification are the same as in the recodified version. . Section 4108(a) provides: Notwithstanding any law, Executive order, or regulation, the [Secretary] shall prescribe by regulation the hours and conditions of employment ... [of nonhybrid employees].... 38 U.S.C. § 4108(a) (1988) (recodified at 38 U.S.C. § 7421(a)). . Section 7422 provides in relevant part: (a) Except as otherwise" }, { "docid": "1991573", "title": "", "text": "proposals were negotiable because they concerned “matters relating to ... grievance procedures” within the meaning of § 7403(f)(3)’s exception to the Secretary’s exclusive authority over promotions. See National Ass’n of Gov’t Employees, Local R1-109, 44 F.L.R.A. No. 29 (Mar. 13, 1992) (“NAGE, Local Rl-109”). The VA challenges this determination. In reviewing the FLRA’s determination that the Union’s proposals are negotiable under § 7403(f)(3), we examine more generally chapter 74 of title 38, 38 U.S.C. §§ 7401-7474, governing VHA personnel administration, and its relation to chapter 71 of title 5, 5 U.S.C. §§ 7101-7135, governing collective bargaining rights of civil service employees generally. While we analyze the interlocking provisions of title 38, our interpretive approach is ultimately quite simple: we seek to give meaning to § 7403(f)(3)’s express limitation of negotiability to “matters relating to adverse actions, disciplinary actions, and grievance procedures.” Because we agree with the VA that proposals relating to peer review promotion procedures rather than grievance procedures are nonnegotiable under § 7403, we remand to the FLRA for a determination of the negotiability of the Union’s proposals in light of the interpretation of § 7403 set forth in this opinion. I. STATUTORY BACKGROUND The Department of Medicine and Surgery, now the Veterans Health Administration, was created in 1946 “to provide a complete medical and hospital service for the medical care and treatment of veterans.” 38 U.S.C. § 7301(b). See Veterans’ Administration, Department of Medicine and Surgery, Pub.L. No. 79-293, 59 Stat. 675 (1946). Because at that time Congress was concerned that the civil service system was insufficiently flexible to accommodate the swift hiring necessary to satisfy the medical needs of returning World War II veterans, it created an independent personnel system for the VHA under title 38. Pub.L. No. 79-293, §§ 2-15, 59 Stat. at 675-79 (codified as amended at 38 U.S.C. §§ 7401-7474). See S.Rep. No. 858 (1945), reprinted in 1945 U.S. Code Cong. Serv. 956; S.Rep. No. 215, 100th Cong., 1st Sess. 145 (1987). The Secretary (then Administrator) of Veterans Affairs was authorized to “prescribe by regulation the hours and conditions of employment” of these employees" }, { "docid": "7263978", "title": "", "text": "establish convincingly that, in the particular setting, its position is the more reasonable one. III. Conclusion For the reasons stated, we affirm the FLRA’s dismissal of the unfair labor practice complaint brought against Fort Lewis, and affirm the FLRA’s rulings that AFGE committed unfair labor practices in its negotiations with the Navy and the ARDC. . 5 U.S.C. § 7116(a)(5), (b)(5). . 5 U.S.C. § 7105(a)(2)(G). . 5 U.S.C. § 7119(c)(5)(B)(iii), (c)(5)(C). . 5 U.S.C. § 7116(a)(6), (b)(6). Panel decisions are reviewable, first by the Authority, then in court in an unfair labor practice proceeding. See Department of the Treasury v. FLRA, 707 F.2d 574 at 577 n. 7 (D.C.Cir.1983). . 5 U.S.C. § 7121(a)(1). . 5 U.S.C. § 7121(b). . 5 U.S.C. § 7121(b)(3)(C). . “[Gjrievance” means any complaint— (A) by any employee concerning any matter relating to the employment of the employee; (B) by any labor organization concerning any matter relating to the employment of any employee; or (C) by any employee, labor organization, or agency concerning— (i) the effect or interpretation, or a claim of breach, of a collective bargaining agreement; or (ii) any claimed violation, misinterpretation,’or misapplication of any law, rule, or regulation affecting conditions of employment ____ 5 U.S.C. § 7103(a)(9). . The [subsections mandating a grievance procedure] shall not apply with respect to any grievance concerning— (1) any claimed violation of subchapter III of chapter 73 of this title (relating to prohibited political activities); (2) retirement, life insurance, or health insurance; (3) a suspension or removal under section 7532 of this title; (4) any examination, certification, or appointment; or (5) the classification of any position which does not result in the reduction in grade or pay of an employee. 5 U.S.C. § 7121(c). . The General Counsel investigates unfair labor practice charges and may press complaints on behalf of parties before the FLRA. See 5 U.S.C. § 7118(a)(1). . AFGE Local 3723, AFL-CIO and United States Dep’t of the Navy, 9 FLRA 744 (1982). . Id. at 750, Finding of Fact # 7. . Id., Finding of Fact # 9. . AFGE Local Union" } ]

[ { "docid": "20523521", "title": "", "text": "exceptional circumstances are present in only three types of cases: “ongoing state criminal prosecu tions,” “civil enforcement proceedings,” and “civil proceedings involving certain orders ... uniquely in furtherance of the state courts’ ability to perform their judicial functions.” Id. (ellipsis in original) (citations omitted). The third category, the only potentially applicable to the custody and divorce proceedings at issue here, requires that the state’s interest in maintaining the proceeding in question uninterrupted by the federal judiciary be “of sufficiently great import.” Juidice v. Vail, 430 U.S. 327, 335, 97 S.Ct. 1211, 51 L.Ed.2d 376 (1977). But in cases in which Younger’s requirements are met, our Court of Appeals has instructed, “district courts must abstain from exercising jurisdiction over a particular claim where resolution of that claim in federal court would offend principles of comity by interfering with an ongoing state proceeding.” Lazaridis v. Wehmer, 591 F.3d 666, 670 (3d Cir.2010) (emphasis added). This rule is consistent with the Supreme Court’s exhortation that “federal courts should abstain from interfering with the ongoing proceedings” where the Younger doctrine applies. Middlesex Cnty. Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423, 437, 102 S.Ct. 2515, 73 L.Ed.2d 116 (1982) (emphasis added). The Third Circuit Court of Appeals endeavors to demarcate the metes and bounds of this “elusive” doctrine by explaining that for it to apply (1) there must be ongoing state proceedings that are judicial in nature; (2) the state proceedings must implicate important state interests; and (3) the state proceedings must afford an adequate opportunity to raise federal claims. Even if the necessary three predicates exist, however, Younger abstention is not appropriate if the federal plaintiff can establish that (1) the state proceedings are being undertaken in bad faith or for purposes of harassment or (2) some other extraordinary circumstances exist such that deference to the state proceeding will present a significant and immediate potential for irreparable harm to the federal interests asserted. Anthony, 316 F.3d at 418 (alterations omitted) (quoting Scholl v. Joyce, 885 F.2d 101, 106 (3d Cir.1989)). The Third Circuit’s Anthony case both lays out the standard as" } ]

[ { "docid": "12429683", "title": "", "text": "to state civil enforcement proceedings to recover fraudulently-obtained welfare payments). Subsequently, in Middlesex County Ethics Committee v. Garden State Bar Association, 457 U.S. 423, 432, 102 S.Ct. 2515, 73 L.Ed.2d 116 (1982), the Court ruled that district courts should only abstain under Younger if: (1) there are ongoing state proceedings of a judicial nature; (2) these proceedings implicate important state interests; and (3) the state proceedings offer adequate opportunity to raise federal claims. See also Addiction Specialists, Inc. v. Township of Hampton, 411 F.3d 399, 408 (3d Cir.2005) (applying the three-prong test of Middlesex County). In Pennzoil v. Texaco, Inc., 481 U.S. 1, 107 S.Ct. 1519, 95 L.Ed.2d 1 (1987), however, the Court cautioned that it did “not hold that Younger abstention is always appropriate whenever a civil proceeding is pending in a state court. Rather ... we rely on the State’s interest in protecting ‘the authority of the judicial system, so that its orders and judgments are not rendered nugatory.’ ” Id. at 14 n. 12, 107 S.Ct. 1519 (citation omitted). Amplifying these limitations, the Third Circuit and district courts in the Third Circuit have consistently held that district courts should only abstain under Younger where the state proceedings are “coercive” and not merely “remedial.” See O’Neill v. City of Philadelphia, 32 F.3d 785, 791 n. 13 (3d Cir.1994) (citing Ohio Civil Rights Comm’n v. Dayton Christian Sch., Inc., 477 U.S. 619, 627 n. 2, 106 S.Ct. 2718, 91 L.Ed.2d 512 (1986)); see also Wyatt v. Keating, 130 Fed.Appx. 511, 514 (3d Cir.2005) (non-precedential); Smolow v. Hafer, 353 F.Supp.2d 561, 572 (E.D.Pa.2005) (DuBois, J.); Antonelli v. New Jersey, 310 F.Supp.2d 700, 711-12 (D.N.J. 2004); Francis v. Springfield Twp., No. 00-6330, 2002 WL 922110, at *4 (E.D.Pa. May 1, 2002) (DuBois, J.); Cohen v. Twp. of Cheltenham, 174 F.Supp.2d 307, 318-19 (E.D.Pa.2001) (DuBois, J.); Gentlemen’s Retreat, Inc. v. City of Philadelphia, 109 F.Supp.2d 374, 379 n. 5 (E.D.Pa.2000) (Robreno, J.); Remed Recovery Care Ctrs. v. Twp. of Worcester, No. 98-1799, 1998 WL 437272, at *2-3 (E.D.Pa. July 30, 1998) (Shapiro, J.); Assisted Living Assocs. of Moorestown, L.L.C. v. Moorestown Twp.," }, { "docid": "9201276", "title": "", "text": "exhaust state remedies before proceeding to federal court, see Alleghany Corp. v. McCartney, 896 F.2d 1138 (1990), Sprint urges that it filed the state suit as a protective measure. Failing to do so, Sprint explains, risked losing the opportunity to obtain any review, federal or state, should the federal court decide to abstain after the expiration of the Iowa statute of limitations. See Brief for Petitioner 7-8. As Sprint anticipated, the IUB filed a motion asking the Federal District Court to abstain in light of the state suit, citing Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). The District Court granted the IUB's motion and dismissed the suit. The IUB's decision, and the pending state-court review of it, the District Court said, composed one \"uninterruptible process\" implicating important state interests. On that ground, the court ruled, Younger abstention was in order. Sprint Communications Co. v. Berntsen, No. 4:11-cv-00183-JAJ (S.D.Iowa, Aug. 1, 2011), App. to Pet. for Cert. 24a. For the most part, the Eighth Circuit agreed with the District Court's judgment. The Court of Appeals rejected the argument, accepted by several of its sister courts, that Younger abstention is appropriate only when the parallel state proceedings are \"coercive,\" rather than \"remedial,\" in nature. 690 F.3d 864, 868 (2012) ; cf. Guillemard-Ginorio v. Contreras-Gómez, 585 F.3d 508, 522 (C.A.1 2009) (\"[P]roceedings must be coercive, and in most cases, state-initiated, in order to warrant abstention.\"). Instead, the Eighth Circuit read this Court's precedent to require Younger abstention whenever \"an ongoing state judicial proceeding ... implicates important state interests, and ... the state proceedings provide an adequate opportunity to raise [federal] challenges .\" 690 F.3d, at 867 (citing Middlesex County Ethics Comm. v. Garden State Bar Assn., 457 U.S. 423, 432, 102 S.Ct. 2515, 73 L.Ed.2d 116 (1982) ). Those criteria were satisfied here, the appeals court held, because the ongoing state-court review of the IUB's decision concerned Iowa's \"important state interest in regulating and enforcing its intrastate utility rates.\" 690 F.3d, at 868. Recognizing the \"possibility that the parties [might] return to federal court,\" however, the Court" }, { "docid": "12429682", "title": "", "text": "to the Sinclair case, and the Rooker-Feldman doctrine does not bar this Court’s exercise of jurisdiction. B. Younger Abstention 1. Standard of Review In Younger v. Harris, 401 U.S. 37, 41, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), the Supreme Court held that a federal court could not enjoin state criminal proceedings enforcing state law on the ground that the underlying state law was unconstitutional. See also Samuels v. Mackell, 401 U.S. 66, 69, 91 S.Ct. 764, 27 L.Ed.2d 688 (1971) (holding that Younger applies to declaratory judgments). The Court soon expanded the Younger holding to prohibit federal injunctions of certain civil proceedings which were quasi-criminal or in aid of state courts’ authority to enforce their orders. See, e.g., Huffman v. Pursue, Ltd., 420 U.S. 592, 604-05, 95 S.Ct. 1200, 43 L.Ed.2d 482 (1975) (applying Younger to state nuisance proceedings); Juidice v. Vail, 430 U.S. 327, 334-36, 97 S.Ct. 1211, 51 L.Ed.2d 376 (1977) (applying Younger to contempt proceedings); Trainor v. Hernandez, 431 U.S. 434, 444-46, 97 S.Ct. 1911, 52 L.Ed.2d 486 (1977) (applying Younger to state civil enforcement proceedings to recover fraudulently-obtained welfare payments). Subsequently, in Middlesex County Ethics Committee v. Garden State Bar Association, 457 U.S. 423, 432, 102 S.Ct. 2515, 73 L.Ed.2d 116 (1982), the Court ruled that district courts should only abstain under Younger if: (1) there are ongoing state proceedings of a judicial nature; (2) these proceedings implicate important state interests; and (3) the state proceedings offer adequate opportunity to raise federal claims. See also Addiction Specialists, Inc. v. Township of Hampton, 411 F.3d 399, 408 (3d Cir.2005) (applying the three-prong test of Middlesex County). In Pennzoil v. Texaco, Inc., 481 U.S. 1, 107 S.Ct. 1519, 95 L.Ed.2d 1 (1987), however, the Court cautioned that it did “not hold that Younger abstention is always appropriate whenever a civil proceeding is pending in a state court. Rather ... we rely on the State’s interest in protecting ‘the authority of the judicial system, so that its orders and judgments are not rendered nugatory.’ ” Id. at 14 n. 12, 107 S.Ct. 1519 (citation omitted). Amplifying these limitations," }, { "docid": "14989226", "title": "", "text": "in which federal-court abstention is required: When there is a parallel, pending state criminal proceeding, federal courts must refrain from enjoining the state prosecution.... Circumstances fitting within the Younger doctrine, we have stressed, are “exceptional”; they include, as catalogued in [New Orleans Public Service, Inc. v. Council of City of New Orleans, 491 U.S. 350, 109 S.Ct. 2506, 105 L.Ed.2d 298 (1989) (“NOPSI”) ], “state criminal prosecutions,” “civil enforcement proceedings,” and “civil proceedings involving certain orders that are uniquely in furtherance of the state courts’ ability to perform their judicial functions.” Id. at 367-68,109 S.Ct. 2506. Sprint Commc’ns, Inc. v. Jacobs, 571 U.S. 69, 134 S.Ct. 584, 588, 187 L.Ed.2d 505 (2013). The Third Circuit has stated that “Sprint offers a forceful reminder of the longstanding principle that-federal courts have a ‘virtually unflagging’ obligations -to hear and decide cases within their jurisdiction.” ACRA Turf Club, LLC v. Zanzuccki, 748 F.3d 127, 138 (3d Cir. 2014) (quoting Sprint, 134 S.Ct. at 591, and Colo. River Water Conservation Dist. v. United States, 424 U.S. 800, 817, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976)). The Third Circuit has also stated: In Middlesex [Cty. Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423, 102 S.Ct. 2515, 73 L.Ed.2d 116 (1982) ], the Court noted that abstention is appropriate where there is an ongoing state proceeding that (1) is judicial in nature, (2) implicates important state interests, and (3) provides an adequate opportunity to raise federal challenges. Middlesex, 457 U.S. at 432, 102 S.Ct. 2515.... In Sprint, the Court repudiated th[e] practice [in subsequent decisions of lower courts of “exclusively applying these three factors as if they were the alpha and omega of the abstention inquiry”], explaining that the Middlesex conditions were never intended to be independently dispositive, but “were, instead, additional factors appropriately considered by the federal courts before invoking Younger.” Sprint, 134 S.Ct. at 593 (emphasis in original). Gonzalez v. Waterfront Comm’n of N.Y. Harbor, 755 F.3d 176, 181 (3d Cir. 2014). Thus, Gonzalez ratifies the continuing validity of Younger abstention in the context of an ongoing criminal prosecution where there is" }, { "docid": "11630905", "title": "", "text": "States recently clarified the limited applicability of the Younger abstention doctrine in Sprint Commc’ns, Inc. v. Jacobs, — U.S. -, 134 S.Ct. 584, 591, 187 L.Ed.2d 505 (2013). The Supreme Court reversed the United States Court of Appeals for the Eighth Circuit’s decision applying the Younger doctrine, held the Eighth Circuit’s criteria for use of Younger abstention was overly permissible, and adopted a more restrictive test for application of the Younger doctrine. Sprint, 134 S.Ct. at 591. The Supreme Court held Younger abstention applies in only three categories of cases: First, Younger preclude^] federal intrusion into ongoing state criminal prosecutions. Second, certain civil enforcement proceedings warrant[] abstention. Finally, federal courts refrain[] from interfering with pending civil proceedings involving certain orders ... uniquely in furtherance of the state courts’ ability to perform their judicial functions. Id. at 591 (citations omitted). Prior to the decision in Sprint, the Younger abstention analysis in the Eighth Circuit revolved around the three-part test derived from the Supreme Court’s decision in Middlesex Cnty. Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423, 432-37, 102 S.Ct. 2515, 73 L.Ed.2d 116 (1982). In Middlesex, the court identified several factors that should lead to abstention under Younger: (1) the existence of an ongoing state judicial proceeding, (2) which implicates important state interests, and (3) which provides an adequate opportunity to raise constitutional challenges. Middlesex, 457 U.S. at 432, 102 S.Ct. 2515. However, in Sprint, the Supreme Court clarified that these three factors are “not dispositive; they [are] instead, additional factors appropriately considered by the federal court before invoking Younger which itself sets forth the three limited circumstances discussed above in which abstention is appropriate. Sprint, 134 S.Ct. at 593 (emphasis in original). Defendants assert abstention is appropriate under the second and third exceptional circumstances to federal jurisdiction discussed in Sprint as well as the factors established in Middlesex. (Dockets 34 at pp. 22-27; 59 at pp. 2-5). Plaintiffs argue none of the exceptional circumstances are applicable in this case. 1. Ongoing state criminal prosecution Although defendants do not expressly discuss the first exceptional circumstance, they imply in their" }, { "docid": "17562984", "title": "", "text": "relief, the scope of federal jurisdiction is determined by Congress. See New Orleans Pub. Serv. v. Council of New Orleans, 491 U.S. 350, 357-60, 109 S.Ct. 2506, 105 L.Ed.2d 298 (1989). Due to this division of authority, the doctrine of abstention is “an extraordinary and narrow exception to the duty of a District Court to adjudicate a controversy properly before it.... ” Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 813, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976) (quoting County of Allegheny v. Frank Mashuda Co., 360 U.S. 185, 188, 79 S.Ct. 1060, 3 L.Ed.2d 1163 (1959)). Younger abstention is applicable only when: 1) there are ongoing state proceedings that are judicial in nature; 2) the state proceedings implicate important state interests; and 3) the state proceedings afford an adequate opportunity to raise the federal claims. See Gwynedd Properties, Inc. v. Lower Gwynedd Township, 970 F.2d 1195, 1200 (3d Cir.1992) (citing Middlesex County Ethics Comm. v. Garden State Bar Assn., 457 U.S. 423, 432, 102 S.Ct. 2515, 73 L.Ed.2d 116 (1982)). In the action before us, the Plaintiffs have not challenged the zoning ordinance being applied in the state proceeding. They also have not requested that the state proceeding be enjoined as is the typical case in Younger abstention situations. For these reasons, we find that hearing the Plaintiffs’ claims would not interfere with the state’s interest in formulating and implementing its own land use policy as the case before us is not a land use case. For the most part, we also find that hearing the claims would not interfere with the state’s interest in adjudicating its cases without interruption by a federal court although we qualify this statement somewhat below. Essentially, however, the Plaintiffs’ claims are similar to those addressed by the Third Circuit in Gwynedd Properties, Inc. v. Lower Gwynedd Township, 970 F.2d 1195 (3d Cir.1992) and Heritage Farms, Inc. v. Solebury Township, 671 F.2d 743 (3d Cir.1982), cert. denied 456 U.S. 990, 102 S.Ct. 2270, 73 L.Ed.2d 1285 (1982), in that they challenge an ordinance’s application rather than its substance. Because of this" }, { "docid": "9444513", "title": "", "text": "federal court involvement in local land use decision-making, a result never intended by Congress in enacting § 1983 ... The essentially local character of this dispute and the availability of constitutional remedies in state court argue strongly against federal intervention, although the action is cast as a civil rights violation”). II. Abstention Although I have denied Plaintiffs’ preliminary injunction motion because Plaintiffs are unlikely to succeed on the merits, I note that Younger abstention also weighs in favor of denying Plaintiffs the remedy they seek. A. Standard ofRevieiu In Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), the Supreme Court established the principle that federal courts generally should not enjoin or interfere with ongoing state court proceedings. Younger held, specifically, that a federal court may not enjoin pending state court criminal proceedings absent bad faith, harassment or other unusual circumstances calling for equitable relief. In Middlesex County Ethics Committee v. Garden State Bar Ass’n, 457 U.S. 423, 102 S.Ct. 2515, 73 L.Ed.2d 116 (1982), the Court extended the reasoning of Younger to state administrative proceedings. Middlesex invoked a three-prong test for ab stention in non-criminal proceedings: (1) whether the administrative proceedings constitute ongoing state judicial proceedings; (2) whether the state proceedings implicate important state interests; and (3) whether state procedures are available that allow the plaintiff to raise his federal claim in state court. Middlesex, 457 U.S. 423, 432, 102 S.Ct. 2515, 2521, 73 L.Ed.2d 116 (1982). An affirmative finding of all three factors compels a district court to abstain unless the state proceeding was commenced in bad faith or was filed for the purpose of harassing the plaintiff, or if other unusual circumstances warrant the court’s intervention. Middlesex, 457 U.S. at 435, 102 S.Ct. at 2523. A district court should not abstain “where a prosecution or proceeding has been brought to retaliate for or to deter constitutionally protected conduct, or where a prosecution or proceeding is otherwise brought in bad faith or for the purpose to harass.” Cullen v. Fliegner, 18 F.3d 96, 103-04 (2d Cir.1994), cert. denied sub nom., 513 U.S. 985, 115" }, { "docid": "2473654", "title": "", "text": "unnecessary in a system of dual sovereigns, id. at 44, 91 S.Ct. 746, and it requires that federal courts dismiss such cases rather than intervene in state affairs. As the Supreme Court has recently emphasized, Younger abstention is called for in exactly three classes of cases: where federal jurisdiction would intrude into ongoing state criminal proceedings, or into certain civil enforcement proceedings (judicial or administrative) akin to criminal prosecutions, or into civil proceedings “that implicate a State’s interest in enforcing the orders and judgments of its courts.” Sprint Communications, Inc. v. Jacobs, — U.S.-, 134 S.Ct. 584, 588, 187 L.Ed.2d 505 (2013). Outside these three “exceptional” situations, Younger abstention is not appropriate even when there is a risk of litigating the same dispute in parallel and redundant state and federal proceedings. Id. at 591; Nader v. Keith, 385 F.3d 729, 732 (7th Cir.2004). (The problems posed by parallel state and federal proceedings are managed under the narrower abstention doctrine of Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976), which ordinarily calls for a stay rather than dismissal when it applies, but still prevents duplication.) In this case, the district court viewed the scheduled Election Board meeting and ongoing state lawsuit as the type of civil enforcement proceedings that are close enough to a criminal prosecution to warrant Younger abstention. See, e.g., Middlesex Cnty. Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423, 102 S.Ct. 2515, 73 L.Ed.2d 116 (1982) (administrative proceeding against attorney for violation of state ethics rules); Huffman v. Pursue, Ltd., 420 U.S. 592, 95 S.Ct. 1200, 43 L.Ed.2d 482 (1975) (civil enforcement of public nuisance statute). We review this decision de novo. Forty One News, Inc. v. County of Lake, 491 F.3d 662, 665 (7th Cir.2007). In our review under Younger, Mulhol-land’s state suit plays no role. Such parallel requests for relief by the same party are not subject to Younger abstention. We focus instead on the proceedings before the Board. See Sprint, 134 S.Ct. at 591-92 (fact that federal plaintiff also sought state court review" }, { "docid": "11424120", "title": "", "text": "have appealed Judge Bernstein’s dismissal of the absentee ballot challenge to the Pennsylvania Supreme Court. That appeal is currently pending. Marks has appealed the dismissal of the election contest to the Pennsylvania Senate which has scheduled no proceedings thereon. IV. ABSTENTION “[Fjederal courts lack the authority to abstain from the exercise of jurisdiction that has been conferred.” New Orleans Pub. Serv., Inc. v. New Orleans, 491 U.S. 350, 358, 109 S.Ct. 2506, 2512, 105 L.Ed.2d 298 (1989). “Underlying [this] assertion[] is the undisputed constitutional principle that Congress, and not the Judiciary, defines the scope of federal jurisdiction within the constitutionally permissible bounds.” Id. (citing Kline v. Burke Constr. Co., 260 U.S. 226, 234, 43 S.Ct. 79, 82, 67 L.Ed. 226 (1922)). “However, because federal courts do have discretion in determining whether to grant certain types of relief, abstention is appropriate in a few carefully defined situations.” Gwynedd Properties, Inc. v. Lower Gwynedd Township, 970 F.2d 1195, 1199 (3d Cir.1992). “Thus, there are some classes of cases in which the withholding of authorized equitable relief because of undue interference with state proceedings is ‘the normal thing to do.’ ” New Orleans Pub. Serv., 491 U.S. at 359, 109 S.Ct. at 2513 (quoting Younger v. Harris, 401 U.S. 37, 45, 91 S.Ct. 746, 751, 27 L.Ed.2d 669 (1971)). Abstention, nevertheless, is the exception and not the rule. “[T]he federal courts’ obligation to adjudicate claims within their jurisdiction [is] ‘virtually unflagging.’ ” Id. (citing Deakins v. Monaghan, 484 U.S. 193, 203, 108 S.Ct. 523, 530, 98 L.Ed.2d 529 (1988)). In Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), the Supreme Court held that federal courts should abstain from enjoining state criminal prosecutions absent extraordinary circumstances. The Supreme Court has since expanded the reach of Younger to noncriminal judicial proceedings in which important state interests are involved. Middlesex County Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 428, 432, 102 S.Ct. 2515, 2521, 73 L.Ed.2d 116 (1982). Younger abstention “reflects a strong federal policy against federal-court interference with pending state judicial proceedings.” Id. at 431, 102 S.Ct. at" }, { "docid": "4376604", "title": "", "text": "exercising jurisdiction over a particular claim where resolution of that claim in federal court would offend principles of comity by interfering with an ongoing state proceeding. Younger, 401 U.S. 37, 91 S.Ct. 746. However, “abstention rarely should be invoked,” Ankenbrandt v. Richards, 504 U.S. 689, 705, 112 S.Ct. 2206, 119 L.Ed.2d 468 (1992), and is only appropriate “in a few carefully defined situations,” Gwynedd Properties, 970 F.2d at 1199. Younger abstention is only appropriate where the following three requirements are satisfied: (1) there are ongoing state proceedings that are judicial in nature; (2) the state proceedings implicate important state interests; and (3) the state proceedings afford an adequate opportunity to raise the federal claims. Id. at 1200 (citing Middlesex County Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423, 432, 102 S.Ct. 2515, 73 L.Ed.2d 116 (1982); Schall v. Joyce, 885 F.2d 101, 106 (3d Cir.1989)). “We exercise plenary review over the legal determination of whether the requirements for abstention have been met. Once we determine that the requirements have been met, we review a district court’s decision to abstain under Younger abstention principles for abuse of discretion.” Gwynedd Properties, 970 F.2d at 1199 (citations omitted). In conducting this review, we are mindful that the mere existence of a pending state proceeding between the parties that parallels the facts of the federal action is not in itself sufficient. Id. at 1201. All three prongs must be satisfied in order for a federal court to properly abstain from exercising its jurisdiction over a particular complaint. C. Ongoing State Proceedings ASI first argues that the land use appeal is no longer “ongoing” because the Allegheny County court stayed proceedings in the land use appeal pending the outcome of the underlying federal proceedings. We disagree and find that the state proceedings are “ongoing” for Younger abstention purposes, notwithstanding the state court’s stay of proceedings, because the land use appeal was pending at the time ASI filed its initial complaint in federal court. In addressing a similar issue, the Ninth Circuit stated: It is irrelevant that the state mandamus action was stayed by" }, { "docid": "2473655", "title": "", "text": "L.Ed.2d 483 (1976), which ordinarily calls for a stay rather than dismissal when it applies, but still prevents duplication.) In this case, the district court viewed the scheduled Election Board meeting and ongoing state lawsuit as the type of civil enforcement proceedings that are close enough to a criminal prosecution to warrant Younger abstention. See, e.g., Middlesex Cnty. Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423, 102 S.Ct. 2515, 73 L.Ed.2d 116 (1982) (administrative proceeding against attorney for violation of state ethics rules); Huffman v. Pursue, Ltd., 420 U.S. 592, 95 S.Ct. 1200, 43 L.Ed.2d 482 (1975) (civil enforcement of public nuisance statute). We review this decision de novo. Forty One News, Inc. v. County of Lake, 491 F.3d 662, 665 (7th Cir.2007). In our review under Younger, Mulhol-land’s state suit plays no role. Such parallel requests for relief by the same party are not subject to Younger abstention. We focus instead on the proceedings before the Board. See Sprint, 134 S.Ct. at 591-92 (fact that federal plaintiff also sought state court review of agency decision did not itself implicate Younger; proper focus was on the agency proceeding); New Orleans Public Serv., Inc. v. Council of City of New Orleans, 491 U.S. 350, 369, 109 S.Ct. 2506, 105 L.Ed.2d 298 (1989) (same). We must determine, therefore, whether the Election Board’s planned hearing on Mulholland’s violation of the anti-slating statute calls for Younger abstention. Citing language in Middlesex, we have said that abstention is required when such state civil proceedings are “judicial in nature,” involve important state interests, and offer an adequate opportunity to review the federal claim. E.g., Majors v. Engelbrecht, 149 F.3d 709, 711 (7th Cir. 1998). This is the approach taken by the district court and largely followed in the parties’ briefs. After the district court’s decision and while briefing in this appeal was already underway, the Supreme Court rephrased the question, at least to some extent, in Sprint. There the Court reversed an appellate decision that had applied the same reading of Middlesex to hold that an adjudicative proceeding before the Iowa Utilities Board warranted" }, { "docid": "17177584", "title": "", "text": "determine “whether abstention is appropriate by weighing such factors as the availability of an adequate state remedy, the length of time the litigation has been pending, and the impact of delay on the litigants.” Id. (citing Artway v. Att’y Gen. of N.J., 81 F.3d 1235, 1270 (3d Cir.1996)). For Colorado River abstention to be appropriate, there must be parallel state and federal litigations that are “truly duplicative,” and the district court must consider the following: 1) which court first assumed jurisdiction over the relevant res, if any; 2) whether the federal court is inconvenient, 3) whether abstention would aid in avoiding piecemeal litigation; 4) whether state or federal law applies; and 5) whether the state proceedings will sufficiently protect the rights of the federal plaintiffs. Rycoline Prods., Inc. v. C & W Unlimited, 109 F.3d 883, 890 (3d Cir.1997). Younger abstention is appropriate if three requirements are met: 1) there are ongoing state proceedings that are judicial in nature; 2) the state proceedings implicate important state interests; and 3) the state proceedings afford an adequate opportunity to raise the federal claims. Gwynedd Props., Inc. v. Lower Gwynedd Twp., 970 F.2d 1195, 1200 (3d Cir.1992) (citing Middlesex County Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423, 432, 102 S.Ct. 2515, 73 L.Ed.2d 116 (1982)). “Even if this test is met, however, abstention is not appropriate if the plaintiff establishes that ‘extraordinary circumstances exist ... such that deference to the state proceeding will present a significant and immediate potential for irreparable harm to the federal interests asserted.’ ” Zahl v. Harper, 282 F.3d 204, 209 (3d Cir.2002) (quoting Schall v. Joyce, 885 F.2d 101, 106 (3d Cir.1989)). In support of its argument, the Borough relies upon Coles v. City of Philadelphia, 145 F.Supp.2d 646 (E.D.Pa.2001), which analyzed Burford abstention. “Bur-ford abstention is appropriate where a difficult question of state law is presented which involves important state policies or administrative concerns.” Heritage Farms, Inc. v. Solebwry Twp., 671 F.2d 743, 746 (3d Cir.1982) (citing Burford, 319 U.S. at 332-34, 63 S.Ct. 1098). In these situations, “a federal court may abstain to" }, { "docid": "15376463", "title": "", "text": "court may order abstention when the issue has been raised and briefed and requested by the federal defendants, even though the issue was not addressed by the district court in the first instance. See Ford Motor Co. v. Meredith Motor Co., 257 F.3d 67, 71 n. 3 (1st Cir.2001); cf. Swisher v. Brady, 438 U.S. 204, 213 n. 11, 98 S.Ct. 2699, 57 L.Ed.2d 705 (1978) (declining to. consider Younger abstention in a case where the defendants had not requested it). Although there are a variety of abstention doctrines, these doctrines “are not rigid pigeonholes into which federal courts must try to fit cases.” Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 11 n.9, 107 S.Ct. 1519, 95 L.Ed.2d 1 (1987); see also Rio Grande Cmty. Health Ctr., Inc., v. Rullan, 397 F.3d 56, 68 (1st Cir.2005). Nonetheless, “the categories do matter.” Rio Grande, 397 F.3d at 68. We think that abstention is warranted under the rubric of Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), for the Rossis’ constitutional claims. A. Younger Abstention on the Equitable Claims Younger abstention is most commonly applied to suits seeking injunctive or declaratory relief, see Rio Grande, 397 F.3d at 70, and we begin with the Rossis’ requests for these remedies. The Younger doctrine is based on principles of comity, and unless there are extraordinary circumstances, it instructs federal courts not to “interfere with ongoing state-court litigation, or, in some cases, with state administrative proceedings.” Maymó-Meléndez v. Álvarez-Ramírez, 364 F.3d 27, 31 (1st Cir.2004); see also Middlesex County Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423, 431, 102 S.Ct. 2515, 73 L.Ed.2d 116 (1982). Although the doctrine is frequently associated with state criminal prosecutions, it has been extended to certain “coercive” civil cases. See Maymó-Meléndez, 364 F.3d at 31 & n. 3. Following Supreme Court case law, see Middlesex County, 457 U.S. at 432, 102 S.Ct. 2515, we have articulated the basic analytical framework for Younger abstention. Abstention is appropriate when the requested relief would interfere (1) with an ongoing state judicial proceeding; (2) that implicates" }, { "docid": "5261414", "title": "", "text": "by Esso is beyond this court’s authority to provide since Younger v. Harris dictates abstention under these facts. I start with familiar principles. When a party is seeking to enjoin state judicial or quasi-judicial proceedings, principles of federalism and comity are implicated. In Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), the Court outlined a rule of abstention that among other things, seeks “to achieve a proper balance between sensitive federal and state interests.” Brooks v. N.H. Supreme Court, 80 F.3d 633, 637 (1st Cir.1996) (citing Younger v. Harris, 401 U.S. at 44, 91 S.Ct. 746). Thus, Younger ordinarily precludes a federal court from adjudicating the merits of a federal claim when doing so “would needlessly inject federal courts into ongoing state criminal prosecutions.” Id. The doctrine has, however, evolved to include within its ambit other types of state proceedings such as civil actions and administrative adjudications. Id.; see also Maymó-Meléndez v. Álvarez-Ramírez, 364 F.3d 27, 31 (1st Cir.2004) (observing that “the Younger doctrine has been extended to ‘coercive’ civil cases involving the state and to comparable state administrative proceedings that are quasi-judicial in character and implicate important state interests”). Indeed, the application of Younger is not a matter exclusive to criminal prosecutions anymore. See, e.g., New Orleans Pub. Serv., Inc. v. Council of New Orleans, 491 U.S. 350, 367-68, 109 S.Ct. 2506, 105 L.Ed.2d 298 (1989) (stating that federalism and comity concerns have led to the extension of the Younger protection beyond criminal prosecutions); Ohio Civil Rights Comm’n v. Dayton Christian Sch., Inc., 477 U.S. 619, 623-27, 106 S.Ct. 2718, 91 L.Ed.2d 512 (1986) (applying abstention under Younger to state administrative proceedings based on sex discrimination); Middlesex County Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423, 432-35, 102 S.Ct. 2515, 73 L.Ed.2d 116 (1982) (applying Younger abstention to state attorney disciplinary proceedings); Huffman v. Pursue, Ltd., 420 U.S. 592, 603-05, 95 S.Ct. 1200, 43 L.Ed.2d 482 (1975) (applying Younger to a civil action initiated by the state to enforce a nuisance statute). In Middlesex County Ethics Comm. v. Garden State Bar Ass’n," }, { "docid": "22531356", "title": "", "text": "exhaust state remedies before proceeding to federal court, see Alleghany Corp. v. McCartney, 896 F.2d 1138 (1990), Sprint urges that it filed the state suit as a protective measure. Failing to do so, Sprint explains, risked losing the opportunity to obtain any review, federal or state, should the federal court decide to abstain after the expiration of the Iowa statute of limitations. See Brief for Petitioner 7-8.4 As Sprint anticipated, the IUB filed a motion asking the Federal District Court to abstain in light of the state suit, citing Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). The District Court granted the IUB's motion and dismissed the suit. The IUB's decision, and the pending state-court review of it, the District Court said, composed one \"uninterruptible process\" implicating important state interests. On that ground, the court ruled, Younger abstention was in order. Sprint Communications Co. v. Berntsen, No. 4:11-cv-00183-JAJ (S.D.Iowa, Aug. 1, 2011), App. to Pet. for Cert. 24a. For the most part, the Eighth Circuit agreed with the District Court's judgment. The Court of Appeals rejected the argument, accepted by several of its sister courts, that Younger abstention is appropriate only when the parallel state proceedings are \"coercive,\" rather than \"remedial,\" in nature. 690 F.3d 864, 868 (2012); cf. Guillemard-Ginorio v. Contreras-Gómez, 585 F.3d 508, 522 (C.A.1 2009) (\"[P]roceedings must be coercive, and in most cases, state-initiated, in order to warrant abstention.\"). Instead, the Eighth Circuit read this Court's precedent to require Younger abstention whenever \"an ongoing state judicial proceeding ... implicates important state interests, and ... the state proceedings provide adequate opportunity to raise [federal] challenges.\" 690 F.3d, at 867 (citing Middlesex County Ethics Comm. v. Garden State Bar Assn., 457 U.S. 423, 432, 102 S.Ct. 2515, 73 L.Ed.2d 116 (1982)). Those criteria were satisfied here, the appeals court held, because the ongoing state-court review of the IUB's decision concerned Iowa's \"important state interest in regulating and enforcing its intrastate utility rates.\" 690 F.3d, at 868. Recognizing the \"possibility that the parties [might] return to federal court,\" however, the Court of Appeals vacated the" }, { "docid": "22366540", "title": "", "text": "the registration and enforcement of the 2004 and 2005 French custody orders. The District Court applied the Younger abstention doctrine to Lazaridis’s challenges to the registration and enforcement of the 2005 French order only. We conclude, however, that Younger requires the dismissal of Lazaridis’s first claim in its entirety. See Younger v. Harris, 401 U.S. 37 (1971). In certain circumstances, district courts must abstain from exercising jurisdiction over a particular claim where resolution of that claim in federal court would offend principles of comity by interfering with an ongoing state proceeding. See Middlesex County Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423, 437, 102 S.Ct. 2515, 73 L.Ed.2d 116 (1982). However, such abstention is appropriate only when the following three requirements are satisfied: (1) there are ongoing state proceedings that are judicial in nature; (2) the state proceedings implicate important state interests; and (3) the state proceedings afford an adequate opportunity to raise the federal claims. Addiction Specialists, Inc. v. Twp. of Hampton, 411 F.3d 399, 408 (3d Cir.2005). Lazaridis’s first claim satisfies each of these requirements. The state court actions regarding the registration of the French orders were pending when Lazaridis filed his federal court complaint on December 27, 2006, satisfying the test’s first prong. In August 2006, Lazaridis filed a motion with the Delaware Family Court seeking relief from the registration of the 2004 order, and on December 8, 2006, he filed a motion challenging the registration of the 2005 order. It is also clear that the Delaware state courts presented an adequate forum in which Lazaridis could pursue his claims regarding the constitutionality of Delaware statutes. See Juidice v. Vail, 430 U.S. 327, 337, 97 S.Ct. 1211, 51 L.Ed.2d 376 (1977) (stating that Younger requires only “an opportunity to present federal claims in a state proceeding”). The “burden on this point rests on the federal plaintiff to show that state procedural law barred presentation of its claims.” See Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 14-15, 107 S.Ct. 1519, 95 L.Ed.2d 1 (1987) (internal citation and quotation omitted). Lazaridis has failed to carry this" }, { "docid": "22890654", "title": "", "text": "On remand, however, we think the district court would be wise to reconsider whether it should abstain from further action in this case, particularly in connection with the injunctive relief it is asked to issue, in light of the pending state court action in which the County seeks a declaratory judgment affirming the County’s refusal to issue a building permit to Acierno. A party arguing in favor of abstention under the principles of Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), must show: (1) there are ongoing state proceedings involving the would-be federal plaintiffs that are judicial in nature, (2) the state proceedings implicate important state interests, and (3) the state proceedings afford an adequate opportunity to raise the federal claims.... Marks v. Stinson, 19 F.3d 873, 882 (3d Cir.1994) (citing Middlesex County Ethics Comm’n v. Garden State Bar Ass'n, 457 U.S. 423, 432, 102 S.Ct. 2515, 2521, 73 L.Ed.2d 116 (1982)). The existence of these facts, however, does not compel abstention. Id.; see also Gwynedd Properties, Inc. v. Lower Gwynedd Township, 970 F.2d 1195, 1201 (3d Cir.1992) (\"[Wjhere federal proceedings parallel but do not interfere with the state proceedings, the principles of comity underlying Younger abstention are not implicated.\"). Indeed, [a] federal plaintiff may pursue parallel actions in the state and federal courts so long as the plaintiff does not seek relief in the federal court that would interfere with the state judicial process. Moreover, since parallel proceedings always involve a likelihood that a final merits judgment in one will effectively terminate the other, it necessarily follows that the mere fact that a judgment in the federal suit might have collateral effects in the state proceeding is not interference for Younger purposes. Marks, 19 F.3d at 885 (footnote omitted) (citing Gwynedd Properties, Inc., 970 F.2d at 1200-03)." }, { "docid": "14989227", "title": "", "text": "S.Ct. 1236, 47 L.Ed.2d 483 (1976)). The Third Circuit has also stated: In Middlesex [Cty. Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423, 102 S.Ct. 2515, 73 L.Ed.2d 116 (1982) ], the Court noted that abstention is appropriate where there is an ongoing state proceeding that (1) is judicial in nature, (2) implicates important state interests, and (3) provides an adequate opportunity to raise federal challenges. Middlesex, 457 U.S. at 432, 102 S.Ct. 2515.... In Sprint, the Court repudiated th[e] practice [in subsequent decisions of lower courts of “exclusively applying these three factors as if they were the alpha and omega of the abstention inquiry”], explaining that the Middlesex conditions were never intended to be independently dispositive, but “were, instead, additional factors appropriately considered by the federal courts before invoking Younger.” Sprint, 134 S.Ct. at 593 (emphasis in original). Gonzalez v. Waterfront Comm’n of N.Y. Harbor, 755 F.3d 176, 181 (3d Cir. 2014). Thus, Gonzalez ratifies the continuing validity of Younger abstention in the context of an ongoing criminal prosecution where there is no barrier to raising the issue in the state court proceeding, suggesting also the continuing validity of the Middlesex analysis. No Third Circuit case of which this Court is aware has directly addressed the issue of whether Younger abstention is appropriate with regard to ancillary or collateral proceedings in a pending criminal case since Sprint was decided. Other federal courts, in cases both before and after Sprint, have ruled that abstention is inappropriate in cases challenging bail or other pretrial release conditions. See Hunt v. Roth, 648 F.2d 1148, 1154 (8th Cir. 1981) (rev’d on other grounds) (abstention inappropriate where declaratory judgment sought regarding non-bailable status of certain' offenses did “not interfere with the state’s orderly criminal prosecution” of plaintiff, plaintiffs claim that “bail has been unconstitutionally denied [wa]s no defense to the criminal charge[,]” and plaintiff had effectively no remedy in state court); Odonnell v. Harris Cty., Texas, 227 F.Supp.3d 706, 734-35 (S.D. Tex. 2016) (“Resolving [the legality of the challenged pre-trial detention] does not affect the merits of subsequent criminal prosecutions. The inability" }, { "docid": "4421301", "title": "", "text": "doctrine of abstention ... is an extraordinary and narrow exception to the duty of a district court to adjudicate a controversy properly before it.” Colorado River Water Conservation Disk v. United States, 424 U.S. 800, 813, 96 S.Ct. 1236, 1244, 47 L.Ed.2d 483 (1976) (quoting County of Allegheny v. Frank Mashuda Co., 360 U.S. 185, 188, 79 S.Ct. 1060, 1062, 3 L.Ed.2d 1163 (1959)). “Abstention rarely should be invoked.” Ankenbrandt v. Richards, — U.S. -, -, 112 S.Ct. 2206, 2215, 119 L.Ed.2d 468 (1992). In Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), the Supreme Court articulated the principle that federal courts should refrain from interfering with ongoing state criminal proceedings. This principle has been extended to ongoing civil and administrative proceedings. See Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 107 S.Ct. 1519, 95 L.Ed.2d 1 (1987) (civil proceedings); Ohio Civil Rights Comm’n v. Dayton Christian Schools, 477 U.S. 619, 106 S.Ct. 2718, 91 L.Ed.2d 512 (1986) (administrative proceedings). The district courts may abstain only when: (1) there are ongoing state proceedings that are judicial in nature; (2) the state proceedings implicate important state interests; and, (3) the state proceedings afford an adequate opportunity to raise the federal claims. Gwynedd Properties, Inc. v. Lower Gwynedd Township, 970 F.2d 1195, 1200 (3d Cir.1992) (citing Middlesex County Ethics Comm. v. Garden State Bar Ass ’n, 457 U.S. 423, 432, 102 S.Ct. 2515, 2521, 73 L.Ed.2d 116 (1982) and Schall v. Joyce, 885 F.2d 101, 106 (3d Cir.1989)). See also Ohio Civil Rights Comm’n, ill U.S. at 627, 106 S.Ct. at 2723 (Younger principles implicated with ongoing state administrative proceedings “in which important state interests are vindicated, so long as in the course of those proceedings the federal plaintiff would have a full and fair opportunity to litigate his constitutional claim”). Courts also may decline to abstain upon a showing of “bad faith, harassment, or some other extraordinary circumstance that would make abstention inappropriate.” Middlesex, 457 U.S. at 435, 102 S.Ct. at 2523. It appears from plaintiffs’ proposed Second Amended Complaint that some administrative proceeding took place" }, { "docid": "22366539", "title": "", "text": "proper basis for reconsideration, the District Court appropriately denied the motion. B. Dismissal of the Complaint We also have jurisdiction to review the District Court’s October 30, 2008 order dismissing Lazaridis’s complaint because his timely Rule 59(e) motion tolled the time to file a notice of appeal. See Fed. R.App. P. 4(a)(4)(A)(iv); Rauscher, 807 F.2d at 348 (internal quotation and citation omitted). Our standard of review is plenary. See Allah v. Seiverling, 229 F.3d 220, 223 (3d Cir.2000) (stating standard of review for dismissal under 28 U.S.C. § 1915(e)(2)); Gwynedd Properties, Inc. v. Lower Gwynedd, 970 F.2d 1195 (3d Cir.1992) (stating standard of review over legal determination as to whether Younger abstention requirements are met); Turner v. Crawford Square Apartments III, L.P., 449 F.3d 542, 547 (3d Cir.2006) (stating standard of review for dismissal under Rooker-Feldman doctrine). We may, however, affirm the District Court’s judgment on any basis found in the record. See Erie Telecomms. v. City of Erie, 853 F.2d 1084, 1089 n. 10 (3d Cir.1988). (1) Lazaridis first sets forth constitutional challenges to the registration and enforcement of the 2004 and 2005 French custody orders. The District Court applied the Younger abstention doctrine to Lazaridis’s challenges to the registration and enforcement of the 2005 French order only. We conclude, however, that Younger requires the dismissal of Lazaridis’s first claim in its entirety. See Younger v. Harris, 401 U.S. 37 (1971). In certain circumstances, district courts must abstain from exercising jurisdiction over a particular claim where resolution of that claim in federal court would offend principles of comity by interfering with an ongoing state proceeding. See Middlesex County Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423, 437, 102 S.Ct. 2515, 73 L.Ed.2d 116 (1982). However, such abstention is appropriate only when the following three requirements are satisfied: (1) there are ongoing state proceedings that are judicial in nature; (2) the state proceedings implicate important state interests; and (3) the state proceedings afford an adequate opportunity to raise the federal claims. Addiction Specialists, Inc. v. Twp. of Hampton, 411 F.3d 399, 408 (3d Cir.2005). Lazaridis’s first claim satisfies" } ]

[ { "docid": "22582093", "title": "", "text": "Simpson and because we believe that this case is distinguishable from Simpson both legally and factually, we reverse. Simpson v. Simpson was a civil suit under 18 U.S.C. § 2520 (1970), brought by a woman against her former husband. The husband, harboring uncertainties as to his wife’s faithfulness, attached a recording device to the telephone lines at their home and recorded conversations between his wife and another man which the Court described as “mildly compromising.” 490 F.2d at 804. He used the recordings to obtain an uncontested divorce. Id. Although the Simpson Court admitted that the “naked language” of Title III was all-inclusive, they concluded that Congress did not intend to intrude into domestic conflicts normally left to state law. Id. The Simpson Court reviewed the Act’s legislative history and based their conclusion on the lack of a positive expression of Congressional intent to include purely interspousal wiretaps within the Act’s prohibitions. Id. The Court distinguished electronic surveillance by a third-party, which they stated would violate the Act even if instigated by a spouse, because they viewed it as “an offense against a spouse’s privacy of a much greater magnitude than is personal surveillance by the other spouse.” 490 F.2d at 809. The Simpson Court concluded with a caveat: As should be obvious from the foregoing, we are not without doubts about our decision. However, we have concluded that the statute is not sufficiently definite and specific to create a federal cause of action for the redress of appellant’s grievances against her former husband. Our decision is, of course, limited to the specific facts of this case. No public official is involved, nor is any private person other than appellee, and the locus in quo does not extend beyond the marital home of the parties. 490 F.2d at 810 Ordinarily a court will not refer to legislative history in construing a statute which is clear on its face. See e. g., United States v. Oregon, 366 U.S. 643, 648, 81 S.Ct. 1278, 6 L.Ed.2d 575 (1961). The language of § 2511(l)(a) quite clearly expresses a blanket prohibition on all electronic" } ]

[ { "docid": "12102620", "title": "", "text": "course of its business, or by an investigative or law enforcement officer in the ordinary course of his duties. 18 U.S.C. § 2510(5)(a). Accordingly, when used by the subscriber or user in the ordinary course of its business, an extension telephone falls within the statutory exception and no “interception” of a conversation has occurred; otherwise evidence of a conversation overheard by means of an extension telephone is inadmissible. Campiti v. Walonis, 611 F.2d 387 (1st Cir. 1979); James v. Newspaper Agency Corp., 591 F.2d 579 (10th Cir. 1979); United States v. Harpel, 493 F.2d 346 (10th Cir. 1974). In Briggs v. American Air Filter Co., Inc., supra, the Court of Appeals raised — but did not decide — the question whether “a company policy against listening-in would affect whether an act of listening-in could be ‘in the ordinary course of business.’ ” Id. at 420 n.11. It appears clear to us that such a policy would be relevant in determining whether an extension was used “in the ordi nary course of business.” Likewise, service directives and policies should be considered in determining whether in the military community a telephone extension has been used “in the ordinary course of business.” The Appendix to Army Regulation 20-3, which concerns wiretap, investigative monitoring and eavesdrop activities (WIMEA) information, prohibits “[w]iretap[ping], investigative monitoring and eavesdropping] ... by or for Department of the Army worldwide” without “[a]dvance approval.” It defines [w]iretapping or investigative monitoring ... as the act of intercepting, listening to, or recording any telephonic conversation by use of any electronic, mechanical, or other device without the advance consent of all of the parties to the conversation.[ ] Para. 3a. “[Electronic, mechanical, or other device,” as used in this regulation, is a term of art defined in 18 U.S.C. § 2510(5), and presumably has the same meaning in both instances. If this is true, that term as used in AR 20-3 does not include an extension telephone when “being used ... in the ordinary course of its business.” A message of August 25, 1980 — subsequent to the trial in the case at bar" }, { "docid": "11413194", "title": "", "text": "(“We hold that Title III does apply to interspousal wiretapping within the marital home.”), cert. denied, — U.S. -, 112 S.Ct. 1514, 117 L.Ed.2d 651 (1992). However, the district court stated 'that the “undisputed facts” in this ease demonstrated that the tapes James made of telephone conversations between Benjamin and Lynn presented the court “with a parent who recorded the conversations of a minor child while that child resided in the parent’s home.” Scheib v. Grant, 814 F.Supp. 736, 739 (N.D.Ill.1993). The only question before the district court, then, was whether Title III should apply to such a situation. Relying upon Second and Tenth Circuit cases, the district court stated that the statute’s exemption for phone extensions used by a “subscriber or user in the ordinary course of its business” applies to the home as well as the marketplace. See 18 U.S.C. § 2510(5)(a)(i); Newcomb v. Ingle, 944 F.2d 1534 (10th Cir.1991) (holding that “a custodial parent tapping a minor child’s conversations within the family home” is “permitted by a broad reading of the exemption contained in § 2510(5)(a)(i)”), cert. denied, — U.S. -, 112 S.Ct. 903, 116 L.Ed.2d 804 (1992); Anonymous v. Anonymous, 558 F.2d 677, 679 (2d Cir.1977) (same). Thus, the district court held that James’ recording of Benjamin’s conversations was exempted from Title III. As a result, no unlawful use or disclosure violation, could be established against Joan and Burton Grant or Dorothy Johnson. . The district court then turned to the plaintiffs’ claim that the defendants had violated the Illinois Eavesdropping Statute, 720 ILCS 5/14-1 et seq. Assuming arguendo that the defendants had violated the statute, the district court held that, because the defendants’ disclosure of the tapes’ contents was “intimately associated” with the state court proceedings, the defendants were entitled to absolute immunity under Illinois law. Scheib, 814 F.Supp. at 740. The need for advocates to press vigorously their clients’ cases in court without fear of a lawsuit, the district court stated, was too great not to grant absolute immunity for judicially-related disclosures. The district court therefore granted Joan and Burton Grant’s motion for summary" }, { "docid": "11413200", "title": "", "text": "any kind of “inter-spousal” exemption is not at issue. See Ap-pellees’ (Grants’) Br. at 11 (conceding that “[sjpying on your spouse to gain dirt for a divorce case is never within the ordinary course of a spouse’s business”). Second, with respect to taping directed at Benjamin out of concern for his welfare, the plaintiffs state that the same reasoning supporting the absence of an “interspousal” exemption ought to control cases in which a party tapes the telephone conversations of any other person within the home, even a child not of majority age. In support of this eontention, the plaintiffs submit that the language in the § 2510(5)(a)(i) exemption (which states Title III does not extend to instruments “a subscriber or user” employs “in the ordinary course of its business”) does not apply outside the confines of strictly commercial activity. “Business,” the plaintiffs submit, “means business.” Further, the plaintiffs maintain that the cases which have construed the exemption in § 2510(5)(a)(i) to apply to situations in which a parent has recorded phone conversations of his or her child are distinguishable. In this regard, they point out that in both Newcomb v. Ingle, 944 F.2d 1534 (10th Cir.1991), and Anonymous v. Anonymous, 558 F.2d 677 (2d Cir.1977), the parent recording the minor’s conversations had custody of the child, unlike James, with whom Benjamin was only visiting. In any event, the plaintiffs assert, both cases were wrongly decided. We cannot accept the plaintiffs’ argument. At the outset, we note that, although the defendant-parent in both Newcomb and Anonymous had custody of the child whose conversations the parent recorded, we do not read either case as making the precise nature of the parent’s custodial status a factor, much less outcome-determinative, in the decision. Rather, both cases focus on the extension phone exemption of § 2510(5)(a)(i) and the need for parents with whom a minor child is living to obtain information concerning that child’s welfare. In Anonymous, the defendant-father had tape-recorded telephone conversations between his daughter, who was living \"with him at the time, and his estranged wife. The Second Circuit affirmed the dismissal of" }, { "docid": "15296168", "title": "", "text": "support, or so arbitrary, as to indicate that it is outside the universe of plausible, credible outcomes.” Id. In divining the reasonableness of the Appeals Court’s decision, we start by noting that the scope of the “ordinary course of business” exception has been the subject of a significant split in authority. Relying on legislative history concerning the extensive use of electronic surveillance in marital disputes, some courts have ruled that the intra-family use of an extension phone does not fall within the ordinary course of business exception, and hence any conversation heard by some family members when eavesdropping on other family members is inadmissible in court. See, e.g., Kempf v. Kempf, 868 F.2d 970, 973 (8th Cir.1989) (holding that no exception exists under federal wiretapping statute for instances of willful, unconsented-to electronic surveillance between spouses); Pritchard v. Pritchard, 732 F.2d 372, 374 (4th Cir.1984) (same); United States v. Jones, 542 F.2d 661, 673 (6th Cir.1976) (finding that the plain language of the statute and its legislative history compel the interpretation that the act includes interspousal wiretaps). Other courts, concerned about intruding on intra-family matters better left to state law, have ruled that eavesdropping by family members on an extension telephone falls within the ordinary course of the family member’s business and thus is not outlawed by the federal electronic surveillance statute. See, e.g., Scheib v. Grant, 22 F.3d 149, 153-4 (7th Cir.1994) (finding that father’s monitoring and recording conversations between his child and his ex-wife was encompassed within the ordinary course of business exception); Newcomb v. Ingle, 944 F.2d 1534, 1535-36 (10th Cir.1991) (ruling that custodial parent’s recording of child’s conversations with non-custodial parent was not an illegal interception under the statute); Anonymous v. Anonymous, 558 F.2d 677, 679 (2d Cir.1977) (quoting testimony from the legislative history to the effect that “nobody wants to make it a crime for a father to listen in on his teenage daughter or some such related problem”); Simpson v. Simpson, 490 F.2d 803, 810 (5th Cir.1974) (deciding that husband intercepting conversations between wife and another man did not fall within statute’s prohibitions). It seems" }, { "docid": "15296169", "title": "", "text": "wiretaps). Other courts, concerned about intruding on intra-family matters better left to state law, have ruled that eavesdropping by family members on an extension telephone falls within the ordinary course of the family member’s business and thus is not outlawed by the federal electronic surveillance statute. See, e.g., Scheib v. Grant, 22 F.3d 149, 153-4 (7th Cir.1994) (finding that father’s monitoring and recording conversations between his child and his ex-wife was encompassed within the ordinary course of business exception); Newcomb v. Ingle, 944 F.2d 1534, 1535-36 (10th Cir.1991) (ruling that custodial parent’s recording of child’s conversations with non-custodial parent was not an illegal interception under the statute); Anonymous v. Anonymous, 558 F.2d 677, 679 (2d Cir.1977) (quoting testimony from the legislative history to the effect that “nobody wants to make it a crime for a father to listen in on his teenage daughter or some such related problem”); Simpson v. Simpson, 490 F.2d 803, 810 (5th Cir.1974) (deciding that husband intercepting conversations between wife and another man did not fall within statute’s prohibitions). It seems to us that both positions are supportable. The Massachusetts Appeals Court’s conclusion that an objection under the federal wiretapping statute would have been overruled was therefore not an “unreasonable application” of federal law. Let us be clear. We are not deciding that, were the question presented to us, Marquise’s use of the telephone extension was done in the ordinary course of busi ness and thus was exempted from the federal wiretapping statute’s restrictions. Rather, we are holding only that the Massachusetts Appeals Court’s decision to that effect was not “contrary to” or “an unreasonable application of’ federal law. Consequently, its decision that Vieux’s lawyer was not constitutionally ineffective for failing to object on that basis was equally not contrary to or an unreasonable application of federal law. In essence, Vieux wants us to announce our views as to the scope of the ordinary business exception, and then apply the result, if favorable to him, to his trial in state court three years ago. We refuse to do so. As we said in O’Brien, Teague taught" }, { "docid": "11413201", "title": "", "text": "her child are distinguishable. In this regard, they point out that in both Newcomb v. Ingle, 944 F.2d 1534 (10th Cir.1991), and Anonymous v. Anonymous, 558 F.2d 677 (2d Cir.1977), the parent recording the minor’s conversations had custody of the child, unlike James, with whom Benjamin was only visiting. In any event, the plaintiffs assert, both cases were wrongly decided. We cannot accept the plaintiffs’ argument. At the outset, we note that, although the defendant-parent in both Newcomb and Anonymous had custody of the child whose conversations the parent recorded, we do not read either case as making the precise nature of the parent’s custodial status a factor, much less outcome-determinative, in the decision. Rather, both cases focus on the extension phone exemption of § 2510(5)(a)(i) and the need for parents with whom a minor child is living to obtain information concerning that child’s welfare. In Anonymous, the defendant-father had tape-recorded telephone conversations between his daughter, who was living \"with him at the time, and his estranged wife. The Second Circuit affirmed the dismissal of the wife’s Title III action because the father’s activities fell within § 2510(5)(a)(i)’s exemption: “Such a use of an extension phone in appellee’s own home would certainly be in the ‘ordinary course of [the user’s] business.’ ” Id. at 678-79; see also Janecka v. Franklin, 843 F.2d 110, 111 (2d Cir.1988) (per curiam) (affirming validity of Anonymous where defendant-father claimed he recorded mother-daughter phone conversations out of concern for daughter’s welfare). Similarly, in Newcomb, the Tenth Circuit affirmed summary judgment entered against a plaintiff-son who had brought a Title III action against his mother. She had recorded conversations between him and his father when he was living with his mother as a minor; the recordings had revealed that the son’s father, the mother’s ex-husband, had instructed the son to set fire to his mother’s home. Newcomb, 944 F.2d at 1535. The court stated that the “interception of a family member’s telephone conversations by use of an extension phone in the family house is arguably permitted by a broad reading of the exemption contained in 18" }, { "docid": "11413212", "title": "", "text": "the child whom the GAL represents. We believe that the Illinois Supreme Court would find this reasoning persuasive and grant a court-appointed GAL absolute immunity from lawsuits arising out of statements or conduct intimately associated with the GAL’s judicial duties. In this case, the record reflects that Dorothy Johnson, who was appointed by the court to serve as Benjamin’s GAL, merely listened to portions of the tape after being informed by James’ attorneys, the Grants, that the tapes concerned Benjamin’s well-being, and later opposed the motion in limine to exclude the tapes from the removal proceeding. Conduct so closely related to a GAL’s judicial duties cannot form the basis of a lawsuit if GALs are to continue to apprise courts of all relevant information concerning the GAL’s ward. Conclusion For the foregoing reasons, the judgment of the district court is affirmed. AFFIRMED. . The district court possessed federal jurisdiction over the Illinois state law claim even after disposing of the federal Title III claim because diversity jurisdiction existed pursuant to 28 U.S.C. § 1332(a)(1). See Scheib, 814 F.Supp. at 740 n. 2. . See Heggy v. Heggy, 944 F.2d 1537, 1539 (10th Cir.1991) (holding that “Title III does apply to interspousal wiretapping within the marital home”), cert. denied, - U.S. -, 112 S.Ct. 1514, 117 L.Ed.2d 651 (1992); Kempf v. Kempf, 868 F.2d 970, 973 (8th Cir.1989) (holding that \"the conduct of a spouse in wiretapping the telephone communications of the other spouse within the marital home, falls within [Title Ill's] purview”); Pritchard v. Pritchard, 732 F.2d 372, 374 (4th Cir.1984) (stating that there is \"no indication in the statutory language or in the legislative history that Congress intended to imply an exception to facts involving interspousal wiretapping”); United States v. Jones, 542 F.2d 661, 673 (6th Cir.1976) (holding that \"the plain language of [§ 2511] and the Act's legislative history compels interpretation of the statute to include inter-spousal wiretaps\"). But see Simpson v. Simpson, 490 F.2d 803, 805 (5th Cir.) (\"The naked language of Title III, by virtue of its inclusiveness, reaches this case. However, we are of the" }, { "docid": "11413193", "title": "", "text": "Before the state court entered the settlement order, however, it asked Lynn whether she planned to bring a lawsuit against James in connection with the tapes. She stated that she would not bring such a lawsuit against James and, indeed, she did not do so. Instead, she filed this action against James’ attorneys, Joan and Burton Grant, and against Benjamin’s GAL, Dorothy Johnson. The complaint alleged violations of Title III, 18 U.S.C. §§ 2510-2521, and the Illinois Eavesdropping Statute, 720 ILCS 5/14-1 et seq. B. District Court Proceedings In resolving Joan and Burton Grant’s motion for summary judgment, the district court first addressed Title III, the federal ■wiretapping statute. The court stated that, if the facts at issue had presented a scenario of so-called “interspousal” wiretapping, i.e., if the facts showed James to have recorded the conversations to obtain information about Lynn, the plaintiffs’ federal wiretapping cause of action would have had merit under the caselaw of a majority of the courts of appeals. See, e.g., Heggy v. Heggy, 944 F.2d 1537, 1538-41 (10th Cir.1991) (“We hold that Title III does apply to interspousal wiretapping within the marital home.”), cert. denied, — U.S. -, 112 S.Ct. 1514, 117 L.Ed.2d 651 (1992). However, the district court stated 'that the “undisputed facts” in this ease demonstrated that the tapes James made of telephone conversations between Benjamin and Lynn presented the court “with a parent who recorded the conversations of a minor child while that child resided in the parent’s home.” Scheib v. Grant, 814 F.Supp. 736, 739 (N.D.Ill.1993). The only question before the district court, then, was whether Title III should apply to such a situation. Relying upon Second and Tenth Circuit cases, the district court stated that the statute’s exemption for phone extensions used by a “subscriber or user in the ordinary course of its business” applies to the home as well as the marketplace. See 18 U.S.C. § 2510(5)(a)(i); Newcomb v. Ingle, 944 F.2d 1534 (10th Cir.1991) (holding that “a custodial parent tapping a minor child’s conversations within the family home” is “permitted by a broad reading of the exemption" }, { "docid": "475107", "title": "", "text": "2350, 80 L.Ed.2d 823 (1984), (case ultimately dismissed for failure to prove wife acted “willfully” within the meaning of the Act). In Citron, the wife placed a recording device on the telephone in the marital home to record her husband’s phone calls to gain information for her use in a divorce proceeding she planned to file. Like Mr. Nations, Mrs. Citron intercepted all incoming and outgoing calls invading the privacy of not only her spouse but countless other individuals as well. Thus, the Second Circuit allows a spouse to seek civil relief under section 2520 for interspousal wiretapping on facts truly identical to those presented by the dispute between Mr. and Mrs. Nations. The Fourth Circuit Court of Appeals joins the Second and Sixth Circuits in extending the prohibitions of Title III to inter-spousal wiretapping in a domestic relations context. In Pritchard v. Pritchard, 732 F.2d 372 (4th Cir.1984), the court examined both Simpson, supra, and Jones, supra, and concluded: Although we agree with Simpson to the extent that it stands for the narrow proposition that state and not federal courts are better suited to handle domestic conflicts [citation omitted], we find that Title III prohibits all wiretapping activities unless specifically excepted. There is no express exception for instances of willful, unconsented to electronic surveillance between spouses. Nor is there any indication in the statutory language or in the legislative history that Congress intended to imply an exception to facts involving interspousal wiretapping. 732 F.2d at 374. The Pritchard opinion followed Jones, supra, in recognizing congressional awareness of wiretapping in domestic relations matters. At page 374 of its opinion the court noted a comment made by Senator Long, the Chairman of the Subcommittee on Administrative Practice and Procedure of the Senate Judiciary Committee, “that the three major areas in which private electronic surveillance was widespread were ‘(1) industrial, (2) divorce cases, and (3) politics.’ ” While the Eighth Circuit has not been faced with the precise circumstances now before the court, it has dealt with wiretap surveillance by a private detective in the marital home at the instigation of one" }, { "docid": "15296167", "title": "", "text": "514, 94 S.Ct. 1820. And again, the quote fails to address the underlying question of whether Marquise’s eavesdropping was not an interception because she used an extension telephone in the ordinary course of her business. Hence the Supreme Court has not ruled directly on the scope of the ordinary business exception, and its more general pronouncements provide no guidance as to whether Marquise’s eavesdropping was done in the “ordinary course of business.” Consequently, we cannot say that the Massachusetts Appeals Court’s decision that counsel was not deficient because the objection would be futile was “contrary to” Supreme Court caselaw. We thus proceed to the second step of the inquiry: whether the state court ruling was an “unreasonable application” of the Court’s precedent. As we said in O’Brien, the issue “reduces to a question of whether the state court’s derivation of a case-specific rule from the Court’s generally relevant jurisprudence appears objectively reasonable.” O’Brien, 145 F.3d at 25. To find the state decision unreasonable, it must be “so offensive to existing precedent, so devoid of record support, or so arbitrary, as to indicate that it is outside the universe of plausible, credible outcomes.” Id. In divining the reasonableness of the Appeals Court’s decision, we start by noting that the scope of the “ordinary course of business” exception has been the subject of a significant split in authority. Relying on legislative history concerning the extensive use of electronic surveillance in marital disputes, some courts have ruled that the intra-family use of an extension phone does not fall within the ordinary course of business exception, and hence any conversation heard by some family members when eavesdropping on other family members is inadmissible in court. See, e.g., Kempf v. Kempf, 868 F.2d 970, 973 (8th Cir.1989) (holding that no exception exists under federal wiretapping statute for instances of willful, unconsented-to electronic surveillance between spouses); Pritchard v. Pritchard, 732 F.2d 372, 374 (4th Cir.1984) (same); United States v. Jones, 542 F.2d 661, 673 (6th Cir.1976) (finding that the plain language of the statute and its legislative history compel the interpretation that the act includes interspousal" }, { "docid": "5110796", "title": "", "text": "558 F.2d 677, 678-79 & n. 5 (2d Cir.1977). Section 2510(5)(a)(i) provides the so-called extension phone exemption from the federal wiretapping laws. It states that: (5) “electronic, mechanical, or other device” means any device or apparatus which can be used to intercept a wire or oral communication other than— (a) any telephone or telegraph instrument, equipment or facility, or any component thereof, (i) furnished to the subscriber or user by a communications carrier in the ordinary course of business and being used by the subscriber in the ordinary course of its business____ The Anonymous opinion apparently is the only interpretation of the extension phone exemption in this Circuit. It is of limited usefulness in the present case since the Court in Anonymous was faced with a purely domestic conflict in which the defendant husband had instructed his son to tape record all incoming telephone calls from his wife. The Court held that the defendant’s eavesdropping and recording of his wife’s and daughter’s conversations from an extension phone were in the ordinary course of business since the legislative history explicitly stated that such personal conversations overheard by family members were not intended to be punishable under the wiretapping statute. Moreover, the Court held that the use of a tape recording device to preserve a conversation on an extension phone in the absence of the husband did not make that eavesdropping unlawful. The defendant in Anonymous tape recorded the conversations by means of an automatic answering machine purchased from a local retail store. While such a device appears not to be an instrument furnished to the subscriber by a communications carrier as required by the statutory exemption, the Court nevertheless found the extension phone exemption applicable. Therefore, it appears that the means of intercepting the communication, as long as the device is attached to an extension phone outlet, is irrelevant except insofar as it relates to whether the interception is in the ordinary course of business. The other aspect of the statute which was not directly addressed in the Anonymous opinion was the clause “being used by the subscriber or user in" }, { "docid": "11413213", "title": "", "text": "Scheib, 814 F.Supp. at 740 n. 2. . See Heggy v. Heggy, 944 F.2d 1537, 1539 (10th Cir.1991) (holding that “Title III does apply to interspousal wiretapping within the marital home”), cert. denied, - U.S. -, 112 S.Ct. 1514, 117 L.Ed.2d 651 (1992); Kempf v. Kempf, 868 F.2d 970, 973 (8th Cir.1989) (holding that \"the conduct of a spouse in wiretapping the telephone communications of the other spouse within the marital home, falls within [Title Ill's] purview”); Pritchard v. Pritchard, 732 F.2d 372, 374 (4th Cir.1984) (stating that there is \"no indication in the statutory language or in the legislative history that Congress intended to imply an exception to facts involving interspousal wiretapping”); United States v. Jones, 542 F.2d 661, 673 (6th Cir.1976) (holding that \"the plain language of [§ 2511] and the Act's legislative history compels interpretation of the statute to include inter-spousal wiretaps\"). But see Simpson v. Simpson, 490 F.2d 803, 805 (5th Cir.) (\"The naked language of Title III, by virtue of its inclusiveness, reaches this case. However, we are of the opinion that Congress did not intend such a far-reaching result, one extending into areas normally left to states, those of the marital home and domestic conflicts.”), cert. denied, 419 U.S. 897, 95 S.Ct. 176, 42 L.Ed.2d 141 (1974). . We note that cases subsequent to Newcomb appear to create an ambiguily with respect to the contours of the rule in the Tenth Circuit. The source of that ambiguity is Thompson v. Dulaney, 970 F.2d 744 (10th Cir.1992). In Thompson, the court appeared to limit the principle announced in Newcomb on the basis of the plaintiff's identity: \"We distinguish Newcomb as did Heggy by noting that in Newcomb it was a minor child living at home at the time of the wiretap who was complaining, whereas here, as in Heggy, it is the spouse who is complaining.” Id. at 747 n. 4. It appears that the Thompson panel may have misread the earlier decision in Heggy v. Heggy, 944 F.2d 1537 (10th Cir.1991). Heggy concerned interspousal wiretapping and, in the course of its discussion, the court" }, { "docid": "9756856", "title": "", "text": "therefore ordered submitted without oral argument. . The statute has since been amended to substitute the word \"intentionally\" for the word \"willfully.” We proceed under the statute as in effect at the time of the alleged violation. .The circuits are split on this issue. Compare Anonymous v. Anonymous, 558 F.2d 677 (2d Cir.1977); Simpson v. Simpson, 490 F.2d 803 (5th Cir.), cert. denied, 419 U.S. 897, 95 S.Ct. 176, 42 L.Ed.2d 141 (1974); with Kempf v. Kempf 868 F.2d 970 (8th Cir.1989); Pritchard v. Pritchard, 732 F.2d 372 (4th Cir.1984); United States v. Jones, 542 F.2d 661 (6th Cir.1976). . 18 U.S.C. § 2510(5)(a)(i) provides that: \"electronic, mechanical, or other device\" means any device or apparatus which can be used to intercept a wire, oral, or electronic communication other than— (a) any telephone or telegraph instrument, equipment or facility, or any component thereof, (i) furnished to the subscriber or user by a provider of wire or electronic communication service in the ordinary course of its business and being used by the subscriber or user in the ordinary course of its business or furnished by such subscriber or user for connection to the facilities of such service and used in the ordinary course of its business; .... . While comments made during the legislative process are not in any sense controlling, nevertheless our holding above is reflective of what appears to be the general understanding of those involved in the legislative process regarding the scope of the statute in situations such as that present here. See, e.g., Anonymous, 558 F.2d at 679 (quoting from the Hearings on the Anti-Crime Program Before Subcomm. No. 5 of the House Judiciary Comm., 90th Cong., 1st Sess. 901 (1967): \"I take it nobody wants to make it a crime for a father to listen in on his teenage daughter or some such related problem.” Comment by Professor Herman Schwartz testifying for the A.C.L.U.)." }, { "docid": "2360027", "title": "", "text": "in a case where a divorced man tapped his own telephone for the purpose of recording conversations between his ex-wife and his eight-year-old daughter, of whom he had custody. Anonymous v. Anonymous, 558 F.2d 677 (2nd Cir.1977). In refusing to apply federal law to what it called a “pure domestic conflict,” the court noted that the statute creates an exception for the use of an extension telephone in overhearing telephone conversations, and found that the action taken in this case was similar enough to fall within that exception. There is only one appellate opinion the Court has found where no exception was found to exist under Title III for electronic surveillance between spouses sharing a marital home. Pritchard v. Pritchard, 732 F.2d 372 (4th Cir.1984). In this case, the wife attached a wiretapping device to the family telephone without her husband’s knowledge or consent. The court.agreed with Simpson, in that federal courts are not the suitable forums for domestic conflicts, but felt bound by the express wording of the statute. The court felt that the statute’s legislative history contained no implications suggesting that interspousal tapping should be exempted from the scope of the federal remedy. In the instant case, this Court elects to follow Simpson. Based on the precise facts presented, we find application of Title III would be in complete disharmony with the traditional practice of litigating domestic conflicts in the state courts. The Court realizes that taken at face value, Title III would appear to offer the plaintiff herein a remedy, but in view of the fact that the federal court system historically has not been receptive to domestic matters, the Court finds it necessary to take one more look at the statute’s legislative history. It is true, as the Jones court emphasized, that Congress was well aware that one prominent use of electronic surveillance was in preparation for divorce litigation. In one of a number of hearings leading to the revisions of the federal wiretapping laws, Senator Long, chairman of the Subcommittee on Administrative Practice and Procedure of the Senate Committee on the Judiciary, 89th Cong. 1st" }, { "docid": "2360026", "title": "", "text": "Throughout the opinion the court was careful in emphasizing that the domestic situation therein fell under the authority of Title III only to the extent that a civil cause of action was available to a spouse against the third-party detective. The question of whether a cause of action would be available against the other spouse was avoided. The Sixth Circuit applied Title III in a case where the husband had left the marital home and was under a restraining order from the Chancery Court which prevented him from “coming about” his wife. U.S. v. Jones, 542 F.2d 661 (6th Cir.1976). The husband entered his wife’s home and connected a wiretap device to her telephone. The court held that the husband’s conduct was subject to the federal law. The Jones court conceded that Simpson might very well have correctly decided on its facts, but distinguished the two cases because there was no “marital home” in Jones, as the parties were not living together at the time of the surveillance. The Second Circuit elected to follow Simpson in a case where a divorced man tapped his own telephone for the purpose of recording conversations between his ex-wife and his eight-year-old daughter, of whom he had custody. Anonymous v. Anonymous, 558 F.2d 677 (2nd Cir.1977). In refusing to apply federal law to what it called a “pure domestic conflict,” the court noted that the statute creates an exception for the use of an extension telephone in overhearing telephone conversations, and found that the action taken in this case was similar enough to fall within that exception. There is only one appellate opinion the Court has found where no exception was found to exist under Title III for electronic surveillance between spouses sharing a marital home. Pritchard v. Pritchard, 732 F.2d 372 (4th Cir.1984). In this case, the wife attached a wiretapping device to the family telephone without her husband’s knowledge or consent. The court.agreed with Simpson, in that federal courts are not the suitable forums for domestic conflicts, but felt bound by the express wording of the statute. The court felt that the" }, { "docid": "5110797", "title": "", "text": "the legislative history explicitly stated that such personal conversations overheard by family members were not intended to be punishable under the wiretapping statute. Moreover, the Court held that the use of a tape recording device to preserve a conversation on an extension phone in the absence of the husband did not make that eavesdropping unlawful. The defendant in Anonymous tape recorded the conversations by means of an automatic answering machine purchased from a local retail store. While such a device appears not to be an instrument furnished to the subscriber by a communications carrier as required by the statutory exemption, the Court nevertheless found the extension phone exemption applicable. Therefore, it appears that the means of intercepting the communication, as long as the device is attached to an extension phone outlet, is irrelevant except insofar as it relates to whether the interception is in the ordinary course of business. The other aspect of the statute which was not directly addressed in the Anonymous opinion was the clause “being used by the subscriber or user in the ordinary course of its business ____” By distinguishing several cases decided in other Circuits, the Anonymous opinion provided a tentative outline of the extension phone exception. The Court expressed approval of the holdings in United States v. Jones, 542 F.2d 661 (6th Cir.1976), and United States v. Schrimsher, 493 F.2d 848 (5th Cir.1974), which upheld the applicability of the wiretap statistics in situations where the defendants indiscriminately taped all incoming and outgoing calls of their wife or lover and thus “invaded the privacy of innumerable persons, known and unknown.” Id. at 679. At the same time, the Court rejected the broader holding of United States v. Harpel, 493 F.2d 346 (10th Cir.1974), that no eavesdropping over an extension phone without one party’s consent would be in the ordinary course of business. Id. at 679 n. 6. Therefore, the Anonymous case suggests that the extension phone exemption is not to be applied or rejected in a wholesale fashion, but rather the circumstances of the eavesdropping and the content of the overheard conversations must be examined" }, { "docid": "11037757", "title": "", "text": "cases, and (3) politics. So far, we have heard no real justification for continuance of snooping in these areas.”). Professor Robert Blakey, generally credited as the architect of Title III, testified that “private bugging in this country can be divided into two broad categories, commercial espionage and marital litigation.” Hearings on the Right to Privacy Act of 1967 Before the Subcomm. on Admin. Practice and Procedure of the Sen. Comm, on the Judiciary, 90th Cong., 1st Sess., part 2 at 413 (1967). Senator Hrus-ka, a co-sponsor of the bill, commenting on the scope of the statute, noted that “[a] broad prohibition is imposed on private use of electronic surveillance, particularly in domestic relations and industrial espionage situations.” S.Rep. No. 1097, 90th Cong., 2d Sess., reprinted in 1968 U.S.Code Cong. & Admin.News 2110, 2112, 2274. Moreover, and in light of the split of judicial authority, had it been the intent of Congress to keep interspousal wiretapping beyond the reach of Title III, Congress could have expressly excluded such wiretapping when it overhauled Title III in the Electronic Communications Privacy Act of 1986, Pub.L. No. 99-508, 100 Stat. 1848. Although the Privacy Act amendments touched nearly every section of Title III, Congress did not codify the judicially created exception for interspousal wiretapping found in Simpson. ... It is highly unlikely, as some courts have suggested, see Lizza v. Lizza, 631 F.Supp. 529, 533 (E.D.N.Y.1986), that applying Title III to interspousal wiretapping will result in increased federal regulation of domestic relations. Rather, the more likely result is a decrease in interspousal wiretapping. See Wiretapping and Modem Marriage, 91 Dick.L.Rev. at 882-83. Heggy v. Heggy, 944 F.2d at 1540-41 (footnotes omitted). Since the Anonymous court ruled, a series of decisions involving Title III and the telephone extension exemption in a family setting involving children have emerged. In Newcomb v. Ingle, supra, the act of a custodial parent in taping a minor child’s conversation within the family home was determined to be permitted by a broad reading of Section 2510(5)(a)(i). Scheib v. Grant, 22 F.3d 149 (7th Cir.), cert. denied, — U.S. —, 115 S.Ct." }, { "docid": "23603426", "title": "", "text": "(4) Extension phone analogy. An additional flaw in Simpson slavishly parroted in the defendants’ argument, is the court’s reliance on Title Ill’s so-called “extension phone exemption”, 18 U.S.C. § 2510(5)(a). That provision of the statute excludes from the definition of an “ ‘electronic, mechanical, or other device’ . which can be used to intercept a wire . communication” “(a) any telephone or telegraph instrument, equipment or facility, or any component thereof, (i) furnished to the subscriber or user by a communications common carrier in the ordinary course of its business and being used by the subscriber or user in the ordinary course of its business . . . ” The result of this definitional exemption is that eavesdropping accomplished by the use of such a telephone by a subscriber within the ordinary course of business is not prohibited by Title III. Judge Bell interpreted the extension phone exemption as follows: “First, it is clear that Congress did not intend to prohibit a person from intercepting a family member’s telephone conversations by use of an extension phone in the family home — subsection (5)(a)(i) of § 2510 directly covers this point. If there is a convincing distinction between this clearly acceptable overhear and the overhear accomplished by appellee, we fail to see it. In fact, we think the (5)(a)(i) exemption is indicative of Congress’s intention to abjure from deciding a very intimate question of familial relations, that of the extent of privacy family members may expect within the home vis-a-vis each other.” 490 F.2d at 809 (footnote omitted). We disagree with the defendants’ argument and with the Simpson court’s conclusion. First, Judge Bell’s reasoning that the extension phone exemption indicated a congressional intent to “abjure from deciding a very intimate question of familial relations” is illogical. When Congress enacted Title III, it was keenly aware of the use of electronic eavesdropping in domestic relations cases. The absence of a specific ex ception in the statute relating to such cases can only mean that Congress intended to create no exception for such cases. It is absurd to conclude, as Judge Bell does," }, { "docid": "11413202", "title": "", "text": "the wife’s Title III action because the father’s activities fell within § 2510(5)(a)(i)’s exemption: “Such a use of an extension phone in appellee’s own home would certainly be in the ‘ordinary course of [the user’s] business.’ ” Id. at 678-79; see also Janecka v. Franklin, 843 F.2d 110, 111 (2d Cir.1988) (per curiam) (affirming validity of Anonymous where defendant-father claimed he recorded mother-daughter phone conversations out of concern for daughter’s welfare). Similarly, in Newcomb, the Tenth Circuit affirmed summary judgment entered against a plaintiff-son who had brought a Title III action against his mother. She had recorded conversations between him and his father when he was living with his mother as a minor; the recordings had revealed that the son’s father, the mother’s ex-husband, had instructed the son to set fire to his mother’s home. Newcomb, 944 F.2d at 1535. The court stated that the “interception of a family member’s telephone conversations by use of an extension phone in the family house is arguably permitted by a broad reading of the exemption contained in 18 U.S.C. § 2510(5)(a)(i).” Id. at 1536. The court continued: There is no persuasive reason why Congress would exempt a business extension and not one in the home. The difference between listening on the extension and tapping the line within the home in the context here is not material. “[W]e think the (5)(a)(i) exemption is indicative of Congress’s intention to abjure from deciding a very intimate question of familial relations, that of the extent of privacy family members may expect within the home vis-a-vis each other.” Id. (citation omitted). In our view, the plaintiffs have presented no persuasive reason why we ought to depart from the reasoning of the other circuits. The language of § 2510(5)(a)(i) juxtaposes the terms “subscriber” and “user” with the phrase “in the ordinary course of its business.” Although the latter phrase might be used to distinguish commercial life from personal life, in the context presented here, it must be read in conjunction with the terms “subscriber” and “user.” These terms certainly do not have exclusively market-oriented connotations. Reading this extension phone" }, { "docid": "11037758", "title": "", "text": "Electronic Communications Privacy Act of 1986, Pub.L. No. 99-508, 100 Stat. 1848. Although the Privacy Act amendments touched nearly every section of Title III, Congress did not codify the judicially created exception for interspousal wiretapping found in Simpson. ... It is highly unlikely, as some courts have suggested, see Lizza v. Lizza, 631 F.Supp. 529, 533 (E.D.N.Y.1986), that applying Title III to interspousal wiretapping will result in increased federal regulation of domestic relations. Rather, the more likely result is a decrease in interspousal wiretapping. See Wiretapping and Modem Marriage, 91 Dick.L.Rev. at 882-83. Heggy v. Heggy, 944 F.2d at 1540-41 (footnotes omitted). Since the Anonymous court ruled, a series of decisions involving Title III and the telephone extension exemption in a family setting involving children have emerged. In Newcomb v. Ingle, supra, the act of a custodial parent in taping a minor child’s conversation within the family home was determined to be permitted by a broad reading of Section 2510(5)(a)(i). Scheib v. Grant, 22 F.3d 149 (7th Cir.), cert. denied, — U.S. —, 115 S.Ct. 320, 130 L.Ed.2d 280 (1994), presents a variation of the civil litigation spawned by the provisions of Title III. A mother, Lynn Scheib, brought an action against the father’s attorneys and her child’s guardian ad litem seeking damages for violations of both Title III and Illinois eavesdropping statutes. The parents were involved in a custody and visi tation dispute as the mother, who had custody, prepared to leave Illinois with the child. Her husband’s emergency motion for injunc-tive relief had prevented the departure of the child. The father had temporary custody by way of visitation rights and used a telephone answering machine attached to an extension phone to record at least two phone conversations between the mother and child. The father’s attorneys agreed with the father that the taped conversations showed that harm was being done to the child and the tapes were delivered to the guardian ad litem. After the mother’s lawyers learned of the existence and content of the tapes, they successfully prevented the use of the tapes in the state proceedings and" } ]

[ { "docid": "21101319", "title": "", "text": "fair compensation. See 4F U.S.C. §§ 251-52. The Act directs the ILECs and CLECs to negotiate in good faith to reach an agreement over the terms of the interconnection. See id. §§ 251(c)(1), 252(a). If an ILEC and a CLEC are unable to agree, the Act provides for binding arbitration conducted under the aegis of the state public utilities commission. See id. § 252(b). After a state commission approves an arbitrated agreement, any party to the agreement may bring an action in district court “to determine whether the agreement ... meets the requirements” of the Act. Id. § 252(e)(6). In Oregon, U.S. West is an ILEC; AT & T, MCI, and WorldCom are CLECs; and the Oregon Public Utilities Commission (“OPUC”) is the state agency charged with arbitrating and approving interconnection agreements. Following unsuccessful negotiations with U.S. West, all three CLECs petitioned OPUC for arbitration. OPUC arbitrated and ratified interconnection agreements between the parties. US West challenged the agreements in district court. The cases were consolidated and heard by consent before a magistrate judge who decided them at summary judgment, upholding some provisions of the agreements and invalidating others. US West appealed, and AT & T, MCI, and WorldCom cross-appealed. US West subsequently dismissed its appeals. Only the cross-appeals remain. We review de novo the district court’s grant of summary judgment. See U.S. West Communications v. MFS Intelenet, Inc., 193 F.3d 1112, 1117 (9th Cir.1999). In reviewing the district court’s decision, we “apply the same standard the district court should apply” in reviewing OPUC’s decision. Id. The Act vests district courts with jurisdiction to “determine whether the agreement^] ... meet[ ] the requirements” of the Act. 47 U.S.C. § 252(e)(6). We therefore “consider[ ] de novo whether the agreements are in compliance with the Act and the implementing regulations, and consider[ ] all other issues under an arbitrary and capricious standard.” MFS Intelenet, 193 F.3d at 1117 (footnote and internal citations omitted). II Four issues are raised in these cross-appeals: (1) May U.S. West be prevented from obtaining reciprocal access to the CLECs’ poles, ducts, conduits, and rights-of-way under 47" } ]

[ { "docid": "13964530", "title": "", "text": "Steele v. Thiokol Carp., 241 F.3d 1248, 1252 (10th Cir.2001). We review de novo whether-the state commission properly interpreted and applied the Act and its regulations. Southwestern Bell Tel. Co. v. Apple, 309 F.3d 713, 717 (10th Cir.2002). Once we determine that the state commission properly interpreted the Act and its regulations, we apply an arbitrary and capricious standard to review the commission’s application of that law to the facts of the case. Id. The parties agree that they are bound by a partially negotiated, partially arbitrated IA. The crux of the dispute is whether a specific term-the call termination rate for calls to ISPs-was arbitrated or negotiated, e.spire contends that the rate was negotiated while Appellees argue that the rate was arbitrated, e.spire further argues that NMPRC incorrectly interpreted the IA and decided that the (allegedly negotiated) call termination rate set forth therein was interim instead of permanent. Because this query involves determinations of fact and because there is no meritorious argument that NMPRC incorrectly interpreted and applied the Act itself, we apply an arbitrary and capricious standard of review. See id. Therefore, the specific question on appeal is whether NMPRC was arbitrary and capricious in its factual findings and resultant interpretation of the IA. Based on this deferential standard of review and the record on appeal, we hold that NMPRC was not arbitrary and capricious in its determination that the rate set forth in the IA was interim. Section 252 of the Act expressly gives state commissions the authority to approve or reject interconnection agreements, but it does not specifically address the interpretation and enforcement of interconnection agreements after their initial approval. See 47 U.S.C. §§ 252(a)(2), (b)(1), (e)(1). However, “[t]his grant to the state commissions to approve or reject and mediate or arbitrate interconnection agreements necessarily implies the authority to interpret and enforce specific provisions contained in those agreements.” Southwestern Bell Tel. Co. v. Brooks Fiber Communications of Okla., Inc., 235 F.3d 493, 497 (10th Cir.2000); see also Bell-South Telecomm., Inc. v. MCImetro Access Transmission Servs., Inc., 317 F.3d 1270, 1274 (11th Cir.2003). The Act gives state" }, { "docid": "7930866", "title": "", "text": "“actual service” of the same geographic area was a question of law to be reviewed de novo. See Hamilton, 224 F.3d at 1052 (stating that courts consider de novo a state commission’s interpretation of the Act and the FCC’s regulations). We agree with the argument advanced by Ameritech that the district court should have conducted a de novo review of the IURC’s interpretation of the regulation in question. See, e.g., MCI Telecomms. Corp., 79 F.Supp.2d at 791 (applying a de novo standard of review to the new entrant’s challenge to the state commission’s interpretation of 47 C.F.R. § 51.711(a)(3)). However, we affirm the district court judge’s decision because the IURC interpreted the regulation correctly to mean that the tandem reciprocal rate applies when the new market entrant’s network has the ability to serve, although may not yet be actually serving, the same geographic area as the incumbent. There is precious little case law interpreting 47 C.F.R. § 51.711(a)(3), and the few district court cases dealing specifically with the issue before us are either inapposite or unpersuasive. For guidance, we turn to the Memorandum Opinion and Order issued by the Chief of the Wireline Competition Bureau, acting with authority delegated by the FCC to forge an interconnection agreement between telecommunications providers in Virginia. See In re Petition of WorldCom, Inc., 17 FCC Rcd. 27,039 (Jul. 17, 2002) (“Virginia Arbitration Order”). There, the FCC delegated authority to the chief of one of its subdivisions, the Wireline Competition Bureau (“WCB”), to arbitrate interconnection agreement disputes between Verizon, the incumbent local telephone service provider, and three new entrants — AT & T Communications of Virginia, Inc., WorldCom, Inc. and Cox Virginia Telcom, Inc. — when the Virginia State Corporation Commission refused to do so. Virginia Arbitration Or der, 17 FCC Rcd at 27,044-45, ¶¶ 6, 7; see also 47 U.S.C. § 252(e)(5) (giving the FCC authority to preempt the arbitration authority of state commissions). The purpose of the WCB is to “advise[] and make[] recommendations to the Commission, or act [] for the Commission under delegated authority, in all matters pertaining to the regulation" }, { "docid": "14229879", "title": "", "text": "service orders imposed obligations only on Ameri- tech. The administrative law judge also stated that, even if the agreement imposed an obligation on MCI to submit orders electronically, MCI could accept telephone service under Ameritech’s retail tariff. MCI and Ameritech filed cross-motions for review. On January 3, 2000, the Commission concluded Ameritech was not required to accept faxed retail service orders under terms of the Agreement, but must allow MCI to purchase services under the terms of the Michigan tariffs. Ameritech appealed, and the district court reversed the Commission’s decision, granting Ameritech’s motion. The district court interpreted interconnection agreements in the Act as “binding” to mean that such agreements are the exclusive means by which competing carriers can obtain interconnection and access to service. The court stated that if a party to an interconnection agreement is unilaterally allowed to rely upon more favorable tariff provisions when the agreement provisions are not economically feasible, the Act’s preference for negotiated contracts would be undermined. Because the provisions in the agreement constituted the entire agreement between Ameritech and MCI, the district court concluded that MCI could not exercise Ameritech’s tariff terms and that the Commission’s interpretation of the agreement was arbitrary and capricious. III. ANALYSIS Standard of Review We review de novo district court orders granting summary judgment. Avery v. King, 110 F.3d 12, 13 (6th Cir.1997). When reviewing state public service commission orders under the Act, this court is “limited to determining whether the order is consistent with sections 251 and 252 of the Act.” Mich. Bell Tel. Co. v. Strand, 305 F.3d at 586. We review the Commission’s interpretation of the Act de novo as well, according little deference to the Commission’s interpretation of the Act. Id. Furthermore, because the Commission “is not an ‘agency within the meaning of the Administrative Procedure Act, see 5 U.S.C. § 701(b)(1)’, so the standards provided by the APA are not directly applicable.” Mich. Bell at 586. With respect to the Commission’s findings of fact, we apply the arbitrary and capricious standard. Id. The arbitrary and capricious standard is the most deferential standard of judicial" }, { "docid": "7930887", "title": "", "text": "least equal” mandated only that the quality be equal, not superior. Id. at 812-13. “In other words, it establishes a floor below which the quality of the interconnection may not go.” Id. at 812. The regulation, on the other hand, inappropriately substituted the ceiling (superior quality) for the floor (equal quality), by requiring superior quality upon request. The Eighth Circuit reaffirmed its position on the superior quality rules in IUB III, 219 F.3d at 758. As already explained, the roles — and the authority — of the state commissions and the FCC are distinct under the Act. Hence, we do not agree with the premise advanced by Ameritech that because the FCC may not implement a blanket regulation requiring superior quality, the IURC may not require acceptance testing when, after individualized review, it finds it to be in the public interest and a means of promoting competition in Indiana. The Eighth Circuit’s prohibition of superior quality mandates applied only to the FCC in its role as federal regulator, not to the IURC in its role as state regulator. We find that the IURC’s imposition of the acceptance testing requirement does not conflict with the spirit and purpose of the Act and is an appropriate use of the state law authority left to it under the Act. Further, the IURC’s requirement that Ameritech provide acceptance testing does not “violate” the plain meaning of the Act, since the Act states that the quality provided by the incumbent must be “at least equal.” 47 U.S.C. § 251(c)(2)(C). The “at least” indicates that something more than equal is allowable. See IUB I, 120 F.3d at 812; see also MCI Telecomms. Corp. v. N.Y. Tel. Co., 134 F.Supp.2d 490, 506 (N.D.N.Y.2001) (determining that Act’s “at least equal” language allows state commissions to set quality guidelines superior to those the incumbent provides itself); AT & T Communications of the S. States, Inc. v. GTE Fla., Inc., 123 F.Supp.2d 1318, 1329 (N.D.Fla.2000) (upholding imposition of superior quality interconnection in part because Act’s “at least equal” provision does not mean “no greater than”). Because the IURC acted under" }, { "docid": "7930859", "title": "", "text": "in arbitration is to uphold the Act and the FCC regulations promulgated under it, ensuring that the interconnection agreement works to foster competition and benefit the public, without discriminating against other would-be entrants. See 47 U.S.C. § 252(c)(1). After a state commission arbitrates the open issues, the parties submit their interconnection agreement reflecting the arbitrated resolutions to the state commission for approval. 47 U.S.C. § 252(e). If either or both parties disagree with the interconnection agreement arbitrated by the state commission, they may seek review in federal district court, as Ameritech did here. 47 U.S.C. § 252(e)(6). The district court’s sole responsibility is to determine whether the interconnection agreement meets the requirements of sections 251 and 252 of the Act. Id. On appeal, we review the district court’s interpretation of the Act de novo. US W. Communications v. Jennings, 304 F.3d 950, 956 (9th Cir.2002). II. Analysis We turn now to the issues before us on appeal. Each of these issues was contested during the IURC arbitration and decided by the arbitrator, then ordered to become part of the interconnection agreement between the parties. Ameritech argues that the district court erred when it affirmed (1) the IURC’s decision to award AT & T the “tandem reciprocal compensation rate” rather than the lower “end-office rate;” and (2) the IURC’s determination that Ameritech must splice “dark fiber” for AT & T upon request. As we lay out below, we affirm the district court on both issues appealed by Ameritech. AT & T appeals three of the district court’s decisions. First, AT & T argues that the district court erred in remanding for further findings the agreement provisions requiring Ameritech to provide AT & T with combinations of network elements that Ameritech ordinarily combines for itself as well as combinations that it ordinarily does not combine for itself. Second, AT & T states that the district court erred in enjoining the portion of the interconnection agreement requiring Ameritech to perform “acceptance testing” before opening a loop circuit requested by AT & T. Third, AT & T contests the district court’s order remanding for" }, { "docid": "7930860", "title": "", "text": "become part of the interconnection agreement between the parties. Ameritech argues that the district court erred when it affirmed (1) the IURC’s decision to award AT & T the “tandem reciprocal compensation rate” rather than the lower “end-office rate;” and (2) the IURC’s determination that Ameritech must splice “dark fiber” for AT & T upon request. As we lay out below, we affirm the district court on both issues appealed by Ameritech. AT & T appeals three of the district court’s decisions. First, AT & T argues that the district court erred in remanding for further findings the agreement provisions requiring Ameritech to provide AT & T with combinations of network elements that Ameritech ordinarily combines for itself as well as combinations that it ordinarily does not combine for itself. Second, AT & T states that the district court erred in enjoining the portion of the interconnection agreement requiring Ameritech to perform “acceptance testing” before opening a loop circuit requested by AT & T. Third, AT & T contests the district court’s order remanding for further findings the IURC’s decision requiring Ameritech to unbundle packet switching. While we affirm the district court’s remand on issues one (combination of network elements) and three (packet switching), we reverse on issue two, reinstating the IURC’s decision with respect to acceptance testing. A. Ameritech’s Appeal 1. Tandem Reciprocal Compensation Rate One term of the interconnection agreement between Ameritech and AT & T covers the price to be paid when a telecommunication (e.g. telephone call, facsimile, modem dial-up, etc.) originates on the network Ameritech built but terminates on AT & T’s equipment. Under the Act, not only can AT & T pay to use certain elements of Ameritech’s vast telecommunications network, AT & T can build switches of its own, which Ameritech then must allow to interconnect with its network. That way, consumers who use AT & T as their local telephone service provider may call consumers who use Ameritech as their local telephone service provider. However, AT & T must pay Ameritech for its costs in allowing the call to travel through its switch" }, { "docid": "1562947", "title": "", "text": "a question of law, must be reviewed de novo. See Michigan Bell Tel. Co. v. Strand, 305 F.3d 580, 586 (6th Cir.2002). IV. DISCUSSION Although PUCO’s and the district court’s decisions are somewhat equivocal, the court accepts SBC’s proposition that both PUCO and the district court issued their decisions, awarding MCI tandem reciprocal compensation, based upon an interpretation of Rule 711(a)(3) that merely requires MCI’s switch to have the ability to serve a comparable geographic area rather than a requirement that MCI actually serve customers over the same geographic area. Rule 711(a)(3) provides: Where the switch of a carrier other than an incumbent LEC serves a geographic area comparable to the area served by the incumbent LEC’s tandem switch, the appropriate rate for the carrier other than an incumbent LEC is the incumbent LEC’s tandem interconnection rate. 47 C.F.R. § 51.711(a)(3). The court must decide whether this rule requires the new entrant to be actually serving customers over a comparable geographic area before charging the tandem interconnection rate or whether the new entrant’s capability to serve customers over a comparable geographic area suffices. For the reasons set forth below, we affirm the district court’s decision and interpret Rule 711(a)(3) as requiring the new entrant’s switch to be capable of serving a comparable geographic area, as opposed to a requirement that the new entrant actually serve customers in that area. First, the language of Rule 711(a)(3) does not require the switch to be serving customers dispersed over a certain geographic area. As MCI notes, “[njothing in the text of Rule 711(a)(3) refers to the physical location of a carrier’s customers. The grammatical object of the regulation’s language — the thing ‘served’ by the competing carrier’s switch — is the ‘geographic area,’ not particular customers.” The focus of Rule 711(a)(3) is on the switch’s ability to transmit communication over a certain area. If a new entrant can offer a comparable area for switching and terminating calls that originate on the incumbent’s network, the tandem interconnection rate applies so that the new entrant may recoup its approximate costs. As a practical matter, a" }, { "docid": "7930881", "title": "", "text": "AT & T posits that such a limitation should be read into the agreement based on certain findings by the IURC in the arbitration order and based on testimony accepted by the IURC in making those findings. We decline to do so. The interconnection agreement as approved is inconsistent with the Act as interpreted in Verizon, and should be remanded to the IURC for reconsideration. 2. Acceptance testing AT & T next argues that the district court’s finding that Ameritech need not perform “acceptance testing” at AT & T’s request because it results in providing AT & T with a network superior in quality to Ameritech’s own was in error. Acceptance testing involves Ameritech’s field technician conducting a noise and frequency response test prior to opening a loop circuit requested by AT & T. The purpose of the acceptance test is to ensure the line is error-free, resulting in better quality and reliability for customers. Ameritech argued before the IURC that because it doesn’t provide acceptance testing for its own retail customers, it shouldn’t have to provide it for AT & T. The IURC ordered Ameritech to perform acceptance testing anyway, finding it to be in the public interest because it could reduce the need for later line maintenance, would ensure reliable, quality service to customers, and would promote competition. In doing so, the IURC acknowledged that such a requirement made Am-eritech provide AT & T with better service than it provides for its own customers and that the Eighth Circuit voided the FCC rule requiring incumbents to provide superior quality networks to new entrants. See IURC Arbitration Order, No. 40571-INT-03, p. 76 (Nov. 20, 2000); IUB I, 120 F.3d at 812-13; see also IUB III, 219 F.3d at 758. To avoid the federal ban on superior quality requirements, the IURC relied on its authority under state law as preserved by the Act to independently impose the acceptance testing requirement on Ameritech. IURC Arbitration Order at 76-77 (relying upon 47 U.S.C. § 251(d)(3) and citing MCI Telecomms. Corp. v. U.S. W. Communications, 204 F.3d 1262, 1265 (9th Cir.2000)). It stated:" }, { "docid": "7930888", "title": "", "text": "as state regulator. We find that the IURC’s imposition of the acceptance testing requirement does not conflict with the spirit and purpose of the Act and is an appropriate use of the state law authority left to it under the Act. Further, the IURC’s requirement that Ameritech provide acceptance testing does not “violate” the plain meaning of the Act, since the Act states that the quality provided by the incumbent must be “at least equal.” 47 U.S.C. § 251(c)(2)(C). The “at least” indicates that something more than equal is allowable. See IUB I, 120 F.3d at 812; see also MCI Telecomms. Corp. v. N.Y. Tel. Co., 134 F.Supp.2d 490, 506 (N.D.N.Y.2001) (determining that Act’s “at least equal” language allows state commissions to set quality guidelines superior to those the incumbent provides itself); AT & T Communications of the S. States, Inc. v. GTE Fla., Inc., 123 F.Supp.2d 1318, 1329 (N.D.Fla.2000) (upholding imposition of superior quality interconnection in part because Act’s “at least equal” provision does not mean “no greater than”). Because the IURC acted under authority preserved by the Act and required Am-eritech to provide superior quality access allowed under the Act, the district court’s determination otherwise must be reversed. 3. Packet Switching As we have discussed, the Act is dynamic legislation, subject to ever-evolving interpretation based on FCC and court pronouncements. The parties’ dispute with regard to the IURC’s “packet switching” unbundling requirement highlights the fluidity of the law, resulting in our affirmance of the learned district judge’s remand order on this issue, but on different grounds. The IURC considered “packet switching,” a type of network element, to be one that must be made available by Ameritech to AT & T on an unbundled basis. According to the FCC regulations in effect at the time the parties entered into the interconnection agreement, packet switching unbundling was required only when four specific conditions were met. 47 C.F.R. § 51.319(c)(5)(i)-(iv). The district court observed that the ITJRC did not appear to consider those four factors in ordering the unbundling of packet switching and remanded so that the proper inquiry could be" }, { "docid": "7930894", "title": "", "text": "the caveats, discussed above. We REVERSE the district court’s determination on acceptance testing, reinstating that provision of the interconnection agreement as a valid exercise of state authority preserved under the Act. . The Telecommunications Act of 1996, Pub.L. 104-104, 110 Stat. 56 (1996) is codi-fled as amended in scattered sections of Title 47, United States Code. . The IURC actually arbitrated two agreements — one between AT & T Communications of Indiana, GP and Ameritech and the other between TCG Indianapolis and Ameritech. Both agreements are identical in all material respects and are challenged on identical grounds. For simplicity’s sake, we will follow the parties' and district court's lead and refer to the agreements at issue in the singular. . The IURC Commissioners, although named in the underlying complaint for declaratory and injunctive relief and appealing separately here, provided no briefing or oral argument separate from AT & T's. References in this opinion to AT & T as a party should also be understood to include the Commissioners. . In the parlance of the Act, incumbent local telephone service providers are called \"incumbent local exchange carriers,” abbreviated 'ILECs” or ''incumbent LECs.” 47 U.S.C. § 251(h); see MCI Telecomms. Corp. v. Mich. Bell Tel. Co., 79 F.Supp.2d 768, 772 (E.D.Mich.1999). . Similarly, new market entrants are commonly referred to as \"competing local exchange carriers,” abbreviated \"CLECs” or \"competing LECs.” See MCI Telecomms. Corp.,79 F.Supp.2d at 772. . Local exchange networks consist of local loops (the cables that connect telephones to switches), switches (computers that direct calls to their destinations), and transport facilities (equipment that directs calls between switches). Id. at 771. . Rule 711(a)(3) reads in full: Where the switch of a carrier other than an incumbent LEC serves a geographic area comparable to the area served by the incumbent LEC's tandem switch, the appropriate rate for the carrier other than an incumbent LEC is the incumbent LEC’s tandem interconnection rate. . In refusing to arbitrate the providers’ interconnection agreement disputes, the Virginia State Corporation Commission stated that it could not apply federal standards as required by the Act in arbitrating" }, { "docid": "7930893", "title": "", "text": "further findings should be guided by the Triennial Review Order, not the now invalid 47 C.F.R. § 51.319(c)(5) as ordered by the district court. That said, we observe that only in very limited circumstances, which we cannot now imagine, will a state be able to craft a packet switching unbundling requirement that will comply with the Act. As stated by the FCC: If a decision pursuant to state law were to require the unbundling of a network element for which the Commission has either found no impairment — and thus has found that unbundling that element would conflict with the limits in section 251(d)(2) — or otherwise declined to require unbundling on a national basis, we believe it unlikely that such a decision would fail to conflict with and “substantially prevent” implementation of the federal regime, in violation of section 251(d)(3)(c). Id. at *311, ¶ 195. III. Conclusion We Affirm the district court’s determinations as to tandem reciprocal compensation rates, dark fiber, new combinations of network elements, and packet switching on the grounds, and with the caveats, discussed above. We REVERSE the district court’s determination on acceptance testing, reinstating that provision of the interconnection agreement as a valid exercise of state authority preserved under the Act. . The Telecommunications Act of 1996, Pub.L. 104-104, 110 Stat. 56 (1996) is codi-fled as amended in scattered sections of Title 47, United States Code. . The IURC actually arbitrated two agreements — one between AT & T Communications of Indiana, GP and Ameritech and the other between TCG Indianapolis and Ameritech. Both agreements are identical in all material respects and are challenged on identical grounds. For simplicity’s sake, we will follow the parties' and district court's lead and refer to the agreements at issue in the singular. . The IURC Commissioners, although named in the underlying complaint for declaratory and injunctive relief and appealing separately here, provided no briefing or oral argument separate from AT & T's. References in this opinion to AT & T as a party should also be understood to include the Commissioners. . In the parlance of the Act," }, { "docid": "7930863", "title": "", "text": "is a lower rate that compensates Ameritech for the cost of end-office switching alone. But, if Ameritech must route the call through a tandem switch, then AT & T pays Ameritech the higher “tandem rate.” The tandem rate compensates Am-eritech for (1) the tandem switching it performs to route the call to the end-office switch; (2) the transport between the tandem switch and the end-office switch; and (3) the end-office switching that delivers the call to the customer. See MCI Telecomms. Corp., 79 F.Supp.2d at 790 (E.D.Mich.1999). New entrants cannot hope to replicate the incumbents’ network switch for switch but, as stated before, have the advantage of newer technology. Thus, a new entrant can typically deploy a single switch in a central location, then lease various elements from the incumbent in order to connect the new entrant’s customers to its central switch and the incumbent’s end-office switches. In this way, the new entrant is able to serve with one switch a geographic area that the incumbent would serve with a minimum of ten-to-fifteen end-office switches. The new entrant’s central switch and leased transport facilities, therefore, “perform functions similar to those performed by an [incumbent’s] tandem switch.” Local Competition Order, 11 FCC Red. at 16,042, ¶ 1090. Hence, if a new entrant can show that its one switch “serves a geographic area comparable to the area served by the [incumbents’] tandem switch,” 47 C.F.R. § 51.711(a)(3) (2003), then the new entrant can charge the incumbent the higher tandem rate for calls terminating on the new entrant’s network. Otherwise, the new entrant receives the lower end-office rate. The IURC determined that AT & T met the geographic coverage test established by 47 C.F.R. § 51.711(a)(3) and that Am- eritech owed AT & T the tandem rate for calls terminating on AT & T’s network. Ameritech argues that in awarding AT & T the higher tandem reciprocal compensation rate, the IURC misinterpreted Rule 711(a)(3) to mean that AT & T only had to have the ability to serve and not actually be serving the same geographic area as Ameritech. Because of this purported" }, { "docid": "1562946", "title": "", "text": "from the filed rate doctrine). Neither of these principles are threatened in this case, nor is there a potential that SBC is vying for a lower rate in some unfair manner or for some ulterior motive. Rather, SBC merely wants the court to review PUCO’s and the district court’s interpretation (and possibly application) of the regulations. The filed rate doctrine does not reach a circumstance such as this one, and thus SBC is entitled to seek retroactive relief. III. STANDARD OF REVIEW We review the district court's interpretation of Rule 711(a)(3) de novo and its ultimate factual findings under the arbitrary and capricious standard of review. Although the district court reviewed P1500's arbitration decision strictly under the arbitrary and capricious standard of review, the primary issue before that court, and currently before this court, is a question of law-whether FCC Rule 711(a)(3) requires that the new market entrant's switch actually serve customers across a comparable geographic area in order for the new entrant to charge the incumbent's tandem interconnection rate. The interpretation of the rule, a question of law, must be reviewed de novo. See Michigan Bell Tel. Co. v. Strand, 305 F.3d 580, 586 (6th Cir.2002). IV. DISCUSSION Although PUCO’s and the district court’s decisions are somewhat equivocal, the court accepts SBC’s proposition that both PUCO and the district court issued their decisions, awarding MCI tandem reciprocal compensation, based upon an interpretation of Rule 711(a)(3) that merely requires MCI’s switch to have the ability to serve a comparable geographic area rather than a requirement that MCI actually serve customers over the same geographic area. Rule 711(a)(3) provides: Where the switch of a carrier other than an incumbent LEC serves a geographic area comparable to the area served by the incumbent LEC’s tandem switch, the appropriate rate for the carrier other than an incumbent LEC is the incumbent LEC’s tandem interconnection rate. 47 C.F.R. § 51.711(a)(3). The court must decide whether this rule requires the new entrant to be actually serving customers over a comparable geographic area before charging the tandem interconnection rate or whether the new entrant’s capability to" }, { "docid": "7930871", "title": "", "text": "agency delegates authority to a subdivision, “the decision of the subdivision is entitled to the same degree of deference as if it were made by the agency itself.” MCIMetro Access Transmission Servs., Inc. v. Bell-South Telecomms., Inc., 352 F.3d 872, 880 n. 8 (4th Cir.2003) (citing Ford Motor Credit Co. v. Milhollin, 444 U.S. 555, 566 n. 9, 100 S.Ct. 790, 63 L.Ed.2d 22 (1980)). Although we recognize that actions decided by delegation of authority are subject to review by the FCC under 47 U.S.C. § 155(c) and 47 C.F.R. § 1.115, we do not believe, as Ameritech urges, that this deprives the Virginia Arbitration Order of the FCC’s imprimatur as outlined above in 47 U.S.C. § 155(c)(3) and 47 C.F.R. § 0.203. Unless and until the FCC modifies the Order, it remains in effect and is entitled to our deference. 47 C.F.R. § 1.102(b) (stating that non-hearing actions such as the Virginia Arbitration Order are effective upon release and are not stayed pending a petition for reconsideration by the FCC, except in limited circumstances not present here). See also MCIMetro Access Transmission Servs., Inc., 352 F.3d at 880 n. 8 (according the Virginia Arbitration Order the same deference as if it had been rendered by the FCC itself). Ameritech does not make the alternative argument that even if the IURC applied the test appropriately, -which we have found it did, the evidence presented by AT & T fails to establish that its switches have the ability to serve the same areas served by the Ameritech tandem switches. Indeed, Ameritech concedes that AT & T provided evidence supporting the IURC’s findings on this issue. (See, e.g., App. Opening Br. p. 20.) Because the IURC correctly interpreted the geographic coverage test established in Rule 711(a)(3), and because Ameritech does not contest the IURC’s findings of fact showing that AT & T met the test, the district court’s decision upholding the IURC’s determination that AT & T is entitled to the tandem reciprocal compensation rate was correct. 2. Dark Fiber “Dark fiber” is excess cable laid in anticipation of future use, but" }, { "docid": "1562939", "title": "", "text": "served by Ameritech’s tandem switch. We turn our attention to MCI’s conditional certificate approved in Case No. 94-2012-TP-ACE, wherein the Commission granted MCI authority to provide local telecommunications service in Cuyahoga, Franklin, and Montgomery counties. We will presume, given the start-up nature of MCI’s operations, that MCI shall serve the area for which we found it worthy of a certificate. In our view, that is a comparable service area. In the Matter of Petition of MCI Telecommunications Corp. for Arbitration Pursuant to Section 252(b) of the Telecommunications Act of 1996 to Establish an Interconnection Agreement with Am-eritech Ohio, No. 96-888-TP-ARB (Jan. 9, 1997) (“PUCO Arbitration”). PUCO based its decision on the “best information” it had and asked the parties to “provide regular reports to the Commission’s telecommunications staff so that [it] may receive ongoing information.” (Id.) Appeal of The Arbitration Decision Pursuant to 47 U.S.C. § 252(e)(6), SBC sought review of the arbitration determination in the United States District Court (S.D.Ohio), challenging various aspects of PUCO’s decision, including the reciprocal compensation rate finding. SBC claimed that, to the extent MCI was permitted to charge the tandem reciprocal compensation rate, the agreement (entered into after the arbitration) violated 47 U.S.C. § 252(d)(2) because MCI had not shown that its switch actually served customers in a comparable geographic area as SBC. On March 21, 2003, the district court affirmed PUCO’s decision awarding MCI the tandem reciprocal compensation rate. The court concluded that PUCO applied the correct legal test because it considered the appropriate regulation, 47 C.F.R. § 51.711(a). It then went on to conclude, under the arbitrary and capricious standard, that PUCO did not err in finding that “MCI had the capacity to serve a region in northeastern Ohio for which it had applied and obtained a Certificate of Operation.” (03/19/03 Order at 11.) The court deferred to PUCO’s previous determination that “MCI [was] able to serve the area in question” and the issuance of an operating license to MCI. (Id.) Accordingly, SBC’s claim was dismissed. II. JURISDICTION This case arises under the Telecommunications Act of 1996, which permits a party to" }, { "docid": "7930861", "title": "", "text": "further findings the IURC’s decision requiring Ameritech to unbundle packet switching. While we affirm the district court’s remand on issues one (combination of network elements) and three (packet switching), we reverse on issue two, reinstating the IURC’s decision with respect to acceptance testing. A. Ameritech’s Appeal 1. Tandem Reciprocal Compensation Rate One term of the interconnection agreement between Ameritech and AT & T covers the price to be paid when a telecommunication (e.g. telephone call, facsimile, modem dial-up, etc.) originates on the network Ameritech built but terminates on AT & T’s equipment. Under the Act, not only can AT & T pay to use certain elements of Ameritech’s vast telecommunications network, AT & T can build switches of its own, which Ameritech then must allow to interconnect with its network. That way, consumers who use AT & T as their local telephone service provider may call consumers who use Ameritech as their local telephone service provider. However, AT & T must pay Ameritech for its costs in allowing the call to travel through its switch and arrive at its customer’s receiver and vice versa. See Ill. Bell Tel. Co., 179 F.3d at 568; 47 U.S.C. § 251(b)(5). The compensation paid by AT & T and Ameritech to each other for transport and termination of telecommunications is called “reciprocal compensation.” 47 U.S.C. § 251(b)(5). Problems in calculating the reciprocal compensation rate arise because, as the FCC has recognized, new entrants design their networks and deploy their switches differently than incumbents due to changes in technology. See In re Implementation of the Local Competition Provisions of the Telecomms. Act of 1996, 11 FCC Red. 15,499, 16,042, ¶ 1090 (Aug. 8, 1996) (“Local Competition Order”). Incumbents, which usually have older networks and thus older technology, typically route calls from new entrants’ customers either through an “end-office switch” (a computer that directly serves the Ameri-tech customer being called) or a “tandem switch” (a computer hub that connects end-office switches). If Ameritech routes an AT & T customer’s call directly through Ameritech’s end-office switch, AT & T is charged the “end-office rate.” The end-office rate" }, { "docid": "7930872", "title": "", "text": "not present here). See also MCIMetro Access Transmission Servs., Inc., 352 F.3d at 880 n. 8 (according the Virginia Arbitration Order the same deference as if it had been rendered by the FCC itself). Ameritech does not make the alternative argument that even if the IURC applied the test appropriately, -which we have found it did, the evidence presented by AT & T fails to establish that its switches have the ability to serve the same areas served by the Ameritech tandem switches. Indeed, Ameritech concedes that AT & T provided evidence supporting the IURC’s findings on this issue. (See, e.g., App. Opening Br. p. 20.) Because the IURC correctly interpreted the geographic coverage test established in Rule 711(a)(3), and because Ameritech does not contest the IURC’s findings of fact showing that AT & T met the test, the district court’s decision upholding the IURC’s determination that AT & T is entitled to the tandem reciprocal compensation rate was correct. 2. Dark Fiber “Dark fiber” is excess cable laid in anticipation of future use, but not currently-connected to electronics, or “lit,” enabling it to carry telecommunications signals. In re Implementation of the Local Competition Provisions of the Telecommunications Act of 1996, 15 FCC Rcd. 3696, 3776, ¶ 174 (Nov. 5, 1999) (“UNE Remand Order ”). The act of connecting dark fiber to electronics so that it can carry a signal is called “splicing.” Ameritech conceded in one of its several Federal Rule of Appellate Procedure 28(j) letters that the FCC’s newest formal rulemaking, the Triennial Review Order, released August 21, 2003, was “inconsistent” with its appeal arguing that it was not required to splice dark fiber upon AT & T’s request because to do so would be concomitant to providing AT & T with superior, not just nondiscriminatory, access to Ameritech’s network. The Triennial Review Order foreclosed that argument by explicitly stating: We require incumbent LECs to make routine network modifications to unbundled transmission facilities used by requesting carriers where the requested transmission facility has already been constructed. By “routine network modifications” we mean that incumbent LECs must perform those" }, { "docid": "7930864", "title": "", "text": "The new entrant’s central switch and leased transport facilities, therefore, “perform functions similar to those performed by an [incumbent’s] tandem switch.” Local Competition Order, 11 FCC Red. at 16,042, ¶ 1090. Hence, if a new entrant can show that its one switch “serves a geographic area comparable to the area served by the [incumbents’] tandem switch,” 47 C.F.R. § 51.711(a)(3) (2003), then the new entrant can charge the incumbent the higher tandem rate for calls terminating on the new entrant’s network. Otherwise, the new entrant receives the lower end-office rate. The IURC determined that AT & T met the geographic coverage test established by 47 C.F.R. § 51.711(a)(3) and that Am- eritech owed AT & T the tandem rate for calls terminating on AT & T’s network. Ameritech argues that in awarding AT & T the higher tandem reciprocal compensation rate, the IURC misinterpreted Rule 711(a)(3) to mean that AT & T only had to have the ability to serve and not actually be serving the same geographic area as Ameritech. Because of this purported misapplication of the geographic coverage test, Ameritech argued below that the portion of the interconnection agreement establishing AT & T’s entitlement to the tandem reciprocal compensation rate should be enjoined. The district court disagreed and affirmed the IURC’s determination. Ameritech first challenges the affirmance of the tandem reciprocal compensation rate award on the basis that the district court applied the wrong standard of review. The district court found that whether AT & T met the geographic coverage test established by 47 C.F.R. § 51.711(a)(3) was a question of fact to be overturned only if the IURC’s determination was arbitrary or capricious. Questions of fact, Ameritech agrees, are reviewed by the district court under the arbitrary and capricious standard. Southwestern Bell Tel. Co. v. Apple, 309 F.3d 713, 717-18 (10th Cir.2002); US W. Communications, Inc. v. Hamilton, 224 F.3d 1049, 1052 (9th Cir.2000). But, Ameritech argues, whether the IURC properly interpreted the FCC regulation to require an examination into AT & T’s “ability to serve” the same geographic area as Ameritech rather than AT & T’s" }, { "docid": "7930882", "title": "", "text": "to provide it for AT & T. The IURC ordered Ameritech to perform acceptance testing anyway, finding it to be in the public interest because it could reduce the need for later line maintenance, would ensure reliable, quality service to customers, and would promote competition. In doing so, the IURC acknowledged that such a requirement made Am-eritech provide AT & T with better service than it provides for its own customers and that the Eighth Circuit voided the FCC rule requiring incumbents to provide superior quality networks to new entrants. See IURC Arbitration Order, No. 40571-INT-03, p. 76 (Nov. 20, 2000); IUB I, 120 F.3d at 812-13; see also IUB III, 219 F.3d at 758. To avoid the federal ban on superior quality requirements, the IURC relied on its authority under state law as preserved by the Act to independently impose the acceptance testing requirement on Ameritech. IURC Arbitration Order at 76-77 (relying upon 47 U.S.C. § 251(d)(3) and citing MCI Telecomms. Corp. v. U.S. W. Communications, 204 F.3d 1262, 1265 (9th Cir.2000)). It stated: Therefore, while the FCC is limited to promulgating rules that are not contrary to the plain meaning of the Act, as a state commission we must only prescribe regulations that are consistent with the Act. States can “raise the bar” of the telecommunications providers[’] standards, provided the bar does not conflict with the Act. Id. at 77-78 (emphasis in original). The district court disagreed with the IURC’s interpretation of the power granted to it under the Act in this instance and reversed the acceptance testing requirement as being in conflict with the Act, relying upon IUB Ill’s statement that “[s]uperior quality requirements ‘violate the plain language of the Act.’ ” (Dist. Ct. Op. at 16) (quoting IUB III, 219 F.3d at 758). The district court criticized the IURC for advancing the seemingly incompatible theorem that “state commissions can order requirements that ‘violate’ the Act, as long as the requirements do not ‘conflict’ with the Act.” Id. (citing IURC Arbitration Order at 77-78). The IURC’s recitation of the role reserved for it under the Act was," }, { "docid": "7930865", "title": "", "text": "misapplication of the geographic coverage test, Ameritech argued below that the portion of the interconnection agreement establishing AT & T’s entitlement to the tandem reciprocal compensation rate should be enjoined. The district court disagreed and affirmed the IURC’s determination. Ameritech first challenges the affirmance of the tandem reciprocal compensation rate award on the basis that the district court applied the wrong standard of review. The district court found that whether AT & T met the geographic coverage test established by 47 C.F.R. § 51.711(a)(3) was a question of fact to be overturned only if the IURC’s determination was arbitrary or capricious. Questions of fact, Ameritech agrees, are reviewed by the district court under the arbitrary and capricious standard. Southwestern Bell Tel. Co. v. Apple, 309 F.3d 713, 717-18 (10th Cir.2002); US W. Communications, Inc. v. Hamilton, 224 F.3d 1049, 1052 (9th Cir.2000). But, Ameritech argues, whether the IURC properly interpreted the FCC regulation to require an examination into AT & T’s “ability to serve” the same geographic area as Ameritech rather than AT & T’s “actual service” of the same geographic area was a question of law to be reviewed de novo. See Hamilton, 224 F.3d at 1052 (stating that courts consider de novo a state commission’s interpretation of the Act and the FCC’s regulations). We agree with the argument advanced by Ameritech that the district court should have conducted a de novo review of the IURC’s interpretation of the regulation in question. See, e.g., MCI Telecomms. Corp., 79 F.Supp.2d at 791 (applying a de novo standard of review to the new entrant’s challenge to the state commission’s interpretation of 47 C.F.R. § 51.711(a)(3)). However, we affirm the district court judge’s decision because the IURC interpreted the regulation correctly to mean that the tandem reciprocal rate applies when the new market entrant’s network has the ability to serve, although may not yet be actually serving, the same geographic area as the incumbent. There is precious little case law interpreting 47 C.F.R. § 51.711(a)(3), and the few district court cases dealing specifically with the issue before us are either inapposite or" } ]

[ { "docid": "11489191", "title": "", "text": "inference sufficient to defeat the defendant’s later claim of laches? (iii) Is the defense of laches also available to “customer defendants,” i.e., companies accused only of using an infringing product, as opposed to manufacturing and/or selling it? I. The facts pertinent to the laches analysis are essentially undisputed and easily summarized. Odetics, Inc. (“Odetics”) filed this action on June 29, 1995, alleging that various automated tape libraries (“ATLs”) manufactured and sold by defendant Storage Technology Corporation (“Storagetek”) infringed Odetics’ United States Patent No. 4,779,151 (“151 patent”). Crestar Bank, Visa International Service Association, Inc., and Visa USA, Inc. (collectively, “customer defendants”) were also named as defendants because of their use of the accused Storage-tek products, chiefly in connection with the ubiquitous automated teller machines that have revolutionized consumer banking over the past decade. The 151 patent issued on October 18,1988. By this time, Storagetek had already been producing and marketing its ATLs to the public for about a year. Indeed, Odetics became aware of the introduction of the ACS 4400, Storagetek’s first ATL, in 1987. Thus, Timothy Crabtree, a co-inventor of the 151 patent, recalls seeing trade journal articles about the Storagetek ATL product circulated at Odetics sometime in 1987. In fact, Crab-tree admitted that “the articles were circulated, because obviously this was somewhat similar technology to what we are working on, although in an entirely different industry.” Specifically, Crabtree recalled thinking “Oh, someone else is doing something similar to what we are doing for a different purpose.” Crabtree also knew at this time that the silos or library modules of the Storagetek ATL could be interconnected. The trade journal articles circulated at Odetics were only part of Storagetek’s marketing efforts in connection with the new ACS 4400. These efforts also included circulation of the original ACS 4400 system manual. This manual contains references to, and diagrams of, the system’s pass-thru port, the ’151 patent element on which Odetics’ infringement claims focus. It also explicitly states that the pass-thru port rotates. Unlike the trade journal articles, however, it is unclear whether anyone at Odetics read the manual during this time period." } ]

[ { "docid": "22447668", "title": "", "text": "to consider a patentability issue without having cross-appealed the jury’s verdicts on patentability.” Id. We ordered that the case be remanded only as to the issue of “infringement vel non, under a proper claim construction,” while leaving open the laches question. Id. at *1. STK petitioned this court to recall the Odetics II mandate, suggesting that the court modify the remand order to allow further consideration of the “102(g) defense.” After briefing on the issue from Odetics, this court denied the petition. See Odetics, Inc. v. Storage Tech., Inc., Nos. 96-1261, -1301 (Fed. Cir., order filed Feb. 27, 1998). STK offers no reason why we should now alter our holding — clearly stated in Odetics II-that STK’s failure to appeal the judgment of no invalidity precluded the continued litigation of that issue. The entry of a distinct judgment of no invalidity after the first jury trial unquestionably put the patentability of the T51 patent in play when the overall judgment of liability was appealed. See Engel, 166 F.3d at 1383-84, 49 U.S.P.Q.2d at 1622 (noting the appeal on liability put issues of both infringement and contractual liability in play); accord Radio Steel & Mfg. Co. v. MTD Prods., Inc., 731 F.2d 840, 844, 221 U.S.P.Q. 657, 660 (Fed.Cir.1984) (a prevailing party seeking to challenge either validity or infringement must, if those judgments are distinct, file a cross-appeal). The issue of whether the T51 patent was valid was plainly within the scope of the judgment appealed from in the first appeal. STK chose not to cross-appeal that issue, thereby precluding further consideration of the issue. We so held in Odetics II. We do so again today. The district court was correct in refusing to entertain further invalidity arguments. IX STK further cross-appeals the district court’s exclusion of certain evidence. Specifically, STK argues that the district court acted improperly in excluding evidence of STK’s avowed reliance on its “102(g) defense” and its victory in the first trial— both of which, STK suggests, are highly relevant to the issue of willful infringement. STK also argues that the district court erred in excluding evidence" }, { "docid": "22447625", "title": "", "text": "Opinion for the court filed by Circuit Judge CLEVENGER. Dissenting opinion filed by Circuit Judge LOURIE. CLEVENGER, Circuit Judge. On March 27, 1998, a jury impaneled in the United States District Court for the Eastern District of Virginia concluded that automated storage library systems manufactured and sold by Storage Technology Corporation, and used by Visa International Service Association, Inc., Visa USA, Inc., and Crestar Bank, Inc. (collectively, “STK”) literally infringed United States Patent No. 4,779,151 (“the T51 patent”) owned by the plaintiff, Odetics, Inc. (“Odetics”). Finding willful infringement, the jury awarded $70.6 million in damages. After initially denying STK’s renewed motion for Judgment as a Matter of Law (“JMOL”), the district court sua sponte reconsidered, granting the JMOL and ordering that judgment be entered in favor of STK. The district court deemed its reconsidered decision to be “mandat[edj” by “the analytical framework established” by this court’s opinion in Chiuminatta Concrete Concepts, Inc. v. Cardinal Indus., Inc., 145 F.3d 1303, 46 U.S.P.Q.2d 1752 (Fed.Cir.1998). See Odetics, Inc. v. Storage Tech. Corp., 14 F.Supp.2d 807, 809, 47 U.S.P.Q.2d 1923, 1924 (ED.Va.1998) (“Odetics VII”). Odetics appeals the reconsideration judgment, as well as earlier judgments partially denying its request for a permanent injunction, see Odetics, Inc. v. Storage Tech. Corp., 14 F.Supp.2d. 785, 47 U.S.P.Q.2d 1573 (E.D. Va.1998) (“Odetics V”), excluding certain time periods from the willful infringement verdict, see Odetics, Inc. v. Storage Tech. Corp., No. 95-881-A, slip op. at 2 (E.D.Va. Feb. 12, 1998) (“Odetics IV”), and denying its request for enhanced damages, see Odetics, Inc. v. Storage Tech. Corp., 14 F.Supp.2d 800 (E.D.Va.1998) (“Odetics VI”). STK cross-appeals the district court s holding that its validity defense, based on 35 U.S.C. § 102(g), was barred as within the scope of this court’s mandate in an earlier appeal of this case, Odetics, Inc. v. Storage Tech. Corp., 116 F.3d 1497, 1997 WL 357598 (Fed.Cir.1997) (Table) (“Odetics II”). See Odetics, Inc. v. Storage Tech. Corp., No. 95-881-A, slip op. at 1 (E.D.Va. Dec. 3, 1997), as clarified by No. 95-881-A, slip op. at 3-4 (Jan. 8, 1998) (“Odetics III”). STK also appeals the district" }, { "docid": "22447629", "title": "", "text": "is rotatable from a first position in which the opening of at least one holding bin is accessible from outside of the housing to a second position in which the opening of at least one holding bin is accessible from inside of the housing; and cassette manipulator means located within the housing for selectively moving cassettes between the rotary means, said storage bins and said tape transports. Claim 14 is identical in all relevant aspects. The critical “rotary means” claim element is in means-plus-function form, requiring that it “be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.” 35 U.S.C. § 112, ¶ 6 (1994). In Odetics II, this court held that the structure corresponding to the “rotary means” element was “the components that receive the force and rotate as a result of that force (ie., the rod, gear, and rotary loading and loading mechanisms).” 1997 WL 357598, at *6. This court noted that this structure could be seen in Fig. 3 of the 151 patent, except that the structure did not include the motor (52) or its gear (54). Thus, the structure corresponding to the “rotary means” element, as depicted in Fig. 3 of the ’151 patent, is a set of tape holders or bins, a rod providing the axis of rotation, and a gear capable of receiving a force sufficient to cause the structure to accomplish the claimed “rotary” function. STK manufactures and sells Library Storage Modules (“libraries”) to companies, such as Visa and Crestar, that require large quantities of automated data storage. Library systems sold by STK are scaleable: that is, additional libraries may be added to increase the amount of storage space. When libraries are added, STK uses a device known as a “pass-thru port” to link the libraries, allowing data tapes to be passed from library to library. The pass-thru ports bridge the gaps between the libraries using a “bin array” — a box-like set of tape slots or holders — that slides linearly along a short track. As the bin arrays move from library to library, they" }, { "docid": "22447631", "title": "", "text": "rotate to allow tapes to be manipulated from within the library housings. This rotation is accomplished by the use of “cam followers,” or pins, that are affixed to the bottom of the bin array. As a bin array moves along its track, the pins come into contact with angled structures, or “cams,” that exert force against the pins, causing the bin array to rotate about a rod that forms its axis. The “bin array” in the accused devices, then, comprises a set of tape holders or bins, a rod, and pins. B In 1995, Odetics sued STK, claiming that three of STK’s commercial storage library offerings (known as the ACS 4400, the PowderHorn, and the WolfCreek) infringed claims 8, 9, and 14 of its ’151 patent. On cross-motions for summary judgment, the district court found as a matter of law that the claims were not literally infringed, and partially granted STK’s motion for summary judgment on the issue of laches. See Odetics, Inc. v. Storage Tech., 919 F.Supp. 911, 38 U.S.P.Q.2d 1873 (E.D.Va.1996) (“Odetics I”). After receiving instructions from the district court regarding the meaning of disputed terms, a jury considering the issues of validity and infringement under the doctrine of equiva lents found the asserted claims of the ’151 patent not invalid and not infringed. In late 1996, Odetics appealed. We held that the district court’s claim construction was erroneous, and therefore vacated the judgment entered by the district court, remanding the case for further proceedings in light of the correct claim interpretation. See Odetics II, 1997 WL 357598, at *7. The case returned to the district court, where a second jury trial commenced on March 23, 1998, resulting in a verdict of willful infringement on March 27, and an award of $70.6 million in damages. In post-trial motions, the district court, on May 1, 1998, denied STK’s motion for JMOL and alternative motion for a new trial. See Odetics, No. 95-881-A (E.D.Va. order filed May 1, 1998). Sometime in May or June 1998, the district court, “[a]f-ter denying the motions [for JMOL and a new trial] ... learned" }, { "docid": "22447664", "title": "", "text": "damages, closely tracking the nine factors highlighted in Read, 970 F.2d at 827-28, 23 U.S.P.Q.2d at 1435-36. See Odetics VI, 14 F.Supp.2d at 803-04. Odetics, however, addresses only three of the nine factors, arguing: (1) that the district court erred by considering STK’s avowed belief that the ’151 patent was invalid; (2) that the case was, contrary to the district court’s conclusion, not close; and, (3) that the ten-year duration of the infringement should not have been tempered by the recognition of the laches defense. Odetics does not address the remaining four factors that the district court found weighed in favor of STK, namely that: STK had not copied the invention; STK engaged in no misconduct during litigation; STK had evinced no motivation to harm Odetics; and, STK had not attempted to conceal its infringement. Further, Odetics does not address that the district court stated that, given the closeness of the case, it would have denied enhanced damages even if STK had not “mounted a good faith and substantial challenge to the existence of infringement.” 14 F.Supp.2d at 805 n. 9. Our review of the district court’s reasoning is mindful that, in this context, a “broad range of discretion is reposed in the trial court, founded on [the] need to weigh and balance multiple factors in determining a just remedy.” SRI, 127 F.3d at 1469, 44 U.S.P.Q.2d at 1427. We think the district court adequately explained its reasons for failing to award enhanced damages, and find no abuse of discretion in having done so. For similar reasons, we also conclude that the district court did not abuse its discretion in refusing to award attorney’s fees to Odetics. VII Prior to the second jury trial, the district court determined that, as a matter of law, the period between the judgment of noninfringement in the first trial and this court’s subsequent overturning of that judgment could not be included in the calculation of additional damages flowing from any possible finding of willful infringement on the part of STK. See Odetics IV, No. 95-881-A, slip op. at 2 (E.D.Va. Feb. 12, 1998). The" }, { "docid": "22447652", "title": "", "text": "*5. C STK’s second alternative ground to support the grant of JMOL is that — as a matter of law — the “bin array” of the accused devices are never in the claimed “first position” and thus do not meet the claim. STK contends that claims 9 and 14 of the T51 patent require the “rotary means” structure to be mounted within the library unit, and thus be inside the library unit when it is in the “first position in which the opening of at least one holding bin is accessible from outside the housing.” ’151 Pat., claims 9, 14. Because it is undisputed that the accused devices are not located in the library unit when in the “first position,” STK argues that they escape infringement as a matter of law. This argument was made to this court, and rejected, in the first appeal. There, STK explicitly argued that “the ‘rotary means’ or ‘loading housing’ must be capable of rotating from the first position to the second recited position while rotatably ‘mounted’ or ‘carried’ unthin the library. The accused [devices] are not capable of performing this function.” Odetics II, Appellee’s Br., p. 41 (emphasis in original). In response, this court noted that under the proper claim interpretation, “[a]ll that is required by the claims is that the means be capable of rotating, that it be mounted within the library, and that it provide access to the library by rotating from a first position to a second position. A device need not be located within the library throughout its operation to meet those requirements.” Odetics II, 1997 WL 357598, at *6. Thus, STK’s argument was made, considered, and disposed of by the earlier appeal; STK’s attempts to resuscitate this issue must fail. See Engel Indus., Inc. v. Lockformer Co., 166 F.3d 1379, 1383, 49 U.S.P.Q.2d 1618, 1621 (Fed.Cir.1999) (“Unless remanded by this court, all issues within the scope of the appealed judgment are deemed incorporated within the mandate and thus are precluded from further adjudication.”). Further, even if STK’s “first position” argument somehow survived the disposition in Odetics II, it was" }, { "docid": "11489221", "title": "", "text": "can draw an inference it clearly knows to be false. The only other Fromson inference available is that Storagetek did not fulfill its affirmative obligation to obtain an opinion with respect to infringement of the ’151 patent. This inference, too, is illogical, given that Storagetek did obtain an opinion, in fact two of them, of noninfringement. Odetics argues that Storagetek did not obtain an opinion with regard to whether its pass-thru, port (as opposed to the cartridge access port) infringed the ’151 patent. Even giving Odet-ics the benefit of the doubt on this point, Storagetek’s lack of specificity in requesting an infringement opinion is insufficient to sully Storagetek’s hands and defeat the laches defense. Fromson, closely examined, compels this conclusion. In Fromson, the court drew a negative inference as to wilful infringement from the fact that the defendant did not rely on advice of counsel at trial. Indeed, the defendant there refused to answer interrogatories asking whether it had even obtained an opinion as to infringement of the plaintiff’s patent. There is a significant distinction between (i) inferring, in Fromson circumstances, that a defendant already found guilty of infringing activity wilfully engaged in that activity, and (ii) inferring from these circumstances—in particular, the fact that Storagetek did not specifically request an opinion about its pass-thru port—some fact that would defeat Storagetek’s laches defense. Certainly, if Storagetek had obtained an opinion that its products infringed the 151 patent, but went on producing its ATLs anyway, its hands would be unclean and the laches claim would fail. It might even be proper to accuse Storagetek of having unclean hands had it completely failed in its duty to inquire as to whether its product infringed the Odetics patent. Here, however, Storagetek obtained from counsel an opinion of non-infringement with respect to its device as a whole. In this circumstance, the fact that Storagetek may not have specifically asked counsel to consider its pass-thru port vis-a-vis the 151 patent does not warrant a negative inference sufficient to establish unclean hands. Odetics further asserts that the determination of wilfullness is an issue for the jury," }, { "docid": "22447630", "title": "", "text": "the structure did not include the motor (52) or its gear (54). Thus, the structure corresponding to the “rotary means” element, as depicted in Fig. 3 of the ’151 patent, is a set of tape holders or bins, a rod providing the axis of rotation, and a gear capable of receiving a force sufficient to cause the structure to accomplish the claimed “rotary” function. STK manufactures and sells Library Storage Modules (“libraries”) to companies, such as Visa and Crestar, that require large quantities of automated data storage. Library systems sold by STK are scaleable: that is, additional libraries may be added to increase the amount of storage space. When libraries are added, STK uses a device known as a “pass-thru port” to link the libraries, allowing data tapes to be passed from library to library. The pass-thru ports bridge the gaps between the libraries using a “bin array” — a box-like set of tape slots or holders — that slides linearly along a short track. As the bin arrays move from library to library, they rotate to allow tapes to be manipulated from within the library housings. This rotation is accomplished by the use of “cam followers,” or pins, that are affixed to the bottom of the bin array. As a bin array moves along its track, the pins come into contact with angled structures, or “cams,” that exert force against the pins, causing the bin array to rotate about a rod that forms its axis. The “bin array” in the accused devices, then, comprises a set of tape holders or bins, a rod, and pins. B In 1995, Odetics sued STK, claiming that three of STK’s commercial storage library offerings (known as the ACS 4400, the PowderHorn, and the WolfCreek) infringed claims 8, 9, and 14 of its ’151 patent. On cross-motions for summary judgment, the district court found as a matter of law that the claims were not literally infringed, and partially granted STK’s motion for summary judgment on the issue of laches. See Odetics, Inc. v. Storage Tech., 919 F.Supp. 911, 38 U.S.P.Q.2d 1873 (E.D.Va.1996) (“Odetics I”)." }, { "docid": "22447662", "title": "", "text": "case, the jury determined that a reasonable royalty was four percent of the total price of the storage library systems. Assuming that a shift to a noninfringing storage library system would cost significantly more than four percent of the original price, Odetics would stand to benefit from its unexcused delay-in bringing suit. Under these circumstances, laches could become a weapon to be wielded rather than a defense to be avoided. In short, if laches is to retain vitality with respect to patented products, it must result, as we noted above, in the abrogation of the right to exclude products sold prior to the filing of the complaint. The district court correctly denied the injunction against the pre-complaint products. IV Upon a finding of willful infringement, a district court may, at its discretion, grant up to treble damages. See 35 U.S.C. § 284 (1994); Read Corp. v. Portec, Inc., 970 F.2d 816, 826, 23 U.S.P.Q.2d 1426, 1434-35 (Fed.Cir.1992), abrogated on other grounds by Markman v. Westview Instruments, Inc., 52 F.3d 967, 975, 34 U.S.P.Q.2d 1321, 1326 (Fed.Cir.1995) (en banc). Here, although the jury found that STK infringed willfully, the district court declined to grant enhanced damages. See Odetics VI, 14 F.Supp.2d 800 (E.D.Va.1998). Odetics appeals this decision. The law is clear that while willful infringement may allow enhanced damages, such a finding does not compel the district court to grant them. See Read, 970 F.2d at 826, 23 U.S.P.Q.2d at 1435. Instead, the decision to grant or deny enhanced damages remains firmly within the scope of the district court’s reasoned discretion, informed by the totality of the circumstances. See State Indus., Inc. v. Mor-Flo Indus., Inc., 948 F.2d 1573, 1576, 20 U.S.P.Q.2d 1738, 1740 (Fed.Cir.1991). We review, then, the denial of enhanced damages for abuse of discretion. See SRI Int’l, Inc. v. Advanced Tech. Lab., Inc., 127 F.3d 1462, 1469, 44 U.S.P.Q.2d 1422, 1427 (Fed.Cir.1997). In this case, we discern no abuse of discretion. As required, see Jurgens v. CBK, Ltd., 80 F.3d 1566, 1572, 38 U.S.P.Q.2d 1397, 1401 (Fed.Cir.1996), the district court provided detailed reasons for the denial of enhanced" }, { "docid": "11489216", "title": "", "text": "delay period show that it would indeed be injured if forced to change or discontinue production of the accused products. And, as Odetics has not presented even a scintilla of evidence that Storagetek would have made these investments if it had been faced with an earlier infringement suit by Odetics, it appears that this prejudice resulted from Odetics’ long delay in filing suit. In sum, because Odetics has not come forward with facts sufficient to raise a question as to the reasonableness of its delay or Storagetek’s resulting prejudice, the six-year presumption of laches remains in effect. IV. Even were the presumption not applicable, however, application of the laches doctrine would still be appropriate in this case. A1992 memorandum from the head of the Odetics ATL product group to its Vice President Bartholet stated: “STK [Storage-tek] now offers a rotary load/unload bin on their ATL. We may have a patent issue to resolve there also, and it could create negotiating leverage/ineentive to do midrange business.” This document reflects Odetics’ actual knowledge of potential infringement by Storagetek at least by April 1992, and the laches clock should therefore begin running no later than that date. See Motorola, Inc. v. CBS, Inc., 672 F.Supp. 1033, 1035 (N.D.Ill. 1986) (interoffice memorandum recognizing existence of number of unnamed infringing companies sufficient to begin laches period). Odetics claims that the infringement concern reflected in this memo referenced Sto-ragetek’s cartridge access port—essentially the door to the ATL—rather than its pass-thru port. This argument misses the point. Regardless of the specific concern, Odetics clearly had a duty at that point to take steps to protect its patent by investigating the Storagetek ATLs. While Odetics chose not to investigate, its apparent reason for doing so—namely, a strategic decision to use the possibility of infringement as “leverage”—is clearly insufficient to prevent the commencement of the laches period at least as of the date of the memorandum, if not years earlier. The remaining question is whether this three-year delay worked a hardship on Storagetek so severe as to justify application of the laches doctrine. Odetics’ inaction was inexcusable, apparently based" }, { "docid": "22447666", "title": "", "text": "jury did find willful infringement, and Odetics now appeals this ruling, arguing that the exclusion of the post-trial but pre-appeal period was in error. However, in light of our determination that the district court did not abuse its discretion in refusing to award enhanced damages, the span of time available for the calculation of such damages — that is, whether the post-trial but pre-appeal period should be included — has become moot. We thus need not, and do not, express any view regarding the correctness of the limitation of the willfulness finding. VIII STK cross-appeals the district court’s holding, entered on the basis of our mandate in Odetics II, 116 F.3d 1497, 1997 WL 357598 (Fed.Cir.1997) (Table), that STK could not further litigate issues of invalidity, including what it describes as its “102(g) defense.” See Odetics III, No. 95-881-A, slip op. at 1 (E.D.Va. Dec. 3, 1997), as clarified by No. 95-881-A, slip op. at 3-4 (Jan. 8, 1998) (holding that the district court has “no jurisdiction to entertain the § 102(g) defense”). STK argues that the district court improperly interpreted our mandate in Odetics II, suggesting that because the jury did not specifically find facts related to the “102(g) defense,” the Odetics II mandate could not have foreclosed further litigation on this issue. We are unpersuaded. We review the interpretation of our own mandate de novo. See Engel Indus., Inc. v. Lockformer Co., 166 F.3d 1379, 1382, 49 U.S.P.Q.2d 1618, 1621 (Fed.Cir.1999). See also Laitram Corp. v. NEC Corp., 115 F.3d 947, 950, 42 U.S.P.Q.2d 1897, 1899 (Fed.Cir.1997). “Unless remanded by this court, all issues within the scope of the appealed judgment are incorporated within the scope of the mandate and are thus precluded from further adjudication.” Engel, 166 F.3d at 1383, 49 U.S.P.Q.2d at 1621. In Odetics II, we noted that the jury in the first trial had specifically found that the claims of the ’151 patent were not invalid, i.e., neither anticipated nor obvious. See 1997 WL 357598, at *6. We therefore declined to consider STK’s section 102(g) invalidity arguments, noting that “STK in essence asks us" }, { "docid": "11489204", "title": "", "text": "principles guide the laches analysis in the instant case. III. The starting point in analysis of this case is to determine when the laches period began to run. Odetics contends that, while it knew of the existence of the Storagetek ATLs before 1988, it did not know that these ATLs included the element central to the current infringement claim, namely, the so-called “pass-thru port” that rotates to transport tapes between the separate silos or modules of the Storagetek product. Yet, the undisputed facts suggest that, at least as of the time the ’151 patent issued in October 1988, Odetics should be charged with a duty to make reasonable inquiry about Storage-tek’s ATL system, which inquiry would have placed them on notice of the very features of the Storagetek products they now claim constitute infringement. Thus, Odetics was aware of both the introduction of the ACS 4400 (Storagetek’s first ATL) in 1987 and some of Storagetek’s marketing efforts in connection with that machine. A co-inventor of the ’151 patent admittedly saw articles about the Storagetek ATL product circulated at Odetics around that time. In fact, the articles were circulated because Odetics’ employees recognized that the ACS 4400 contained technology similar to that on which they were then working. Second, the co-inventor also knew that the silos or library modules of the Storagetek ATL could be interconnected. Third, Storagetek’s sales literature included the original ACS 4400 system manual, which contained references to, and diagrams of, the system’s pass-thru port. The manual also explicitly stated that the pass-thru port rotates. In sum, Odetics had actual knowledge of the ACS 4400 and knew it embodied technology similar to the ’151 patent, and therefore had reason to investigate the matter further. A modest investigation would have produced the ACS 4400 system manual, which, in turn, would have revealed to Odetics the very facts and features central to its infringement suit, features that Odetics claims not to have discovered until late 1993. Odetics seeks to avoid this conclusion by contending that despite its knowledge of the Storagetek ATL system, it had no reason to investigate the" }, { "docid": "11489203", "title": "", "text": "despite implied notice of patentee’s intent to enforce patent rights, as investments were therefore “simply a business decision to capitalize on a market opportunity”). Thus, where a patentee gives an accused infringer notice of infringement, any subsequent delay in bringing suit is unlikely to result in the type of economic prejudice that warrants application of the laches doctrine. Both laches elements, the reasonableness of the delay and the resulting prejudice to the defendant, play a further role in the laches analysis. The length of unexcused delay considered sufficient to invoke the lach-es doctrine varies according to the circumstances. In determining whether a certain period of delay should bar a plaintiff from recovering damages for past infringement, courts balance the equities, including the length of the delay, the reasonableness of the plaintiffs excuses, and the seriousness of the prejudice to the defendant. See Aukerman, 960 F.2d at 1034. The ultimate question is then whether, under the circumstances as a whole, the “patentee dealt unfairly with the alleged infringer by not promptly bringing suit.” Id. These general principles guide the laches analysis in the instant case. III. The starting point in analysis of this case is to determine when the laches period began to run. Odetics contends that, while it knew of the existence of the Storagetek ATLs before 1988, it did not know that these ATLs included the element central to the current infringement claim, namely, the so-called “pass-thru port” that rotates to transport tapes between the separate silos or modules of the Storagetek product. Yet, the undisputed facts suggest that, at least as of the time the ’151 patent issued in October 1988, Odetics should be charged with a duty to make reasonable inquiry about Storage-tek’s ATL system, which inquiry would have placed them on notice of the very features of the Storagetek products they now claim constitute infringement. Thus, Odetics was aware of both the introduction of the ACS 4400 (Storagetek’s first ATL) in 1987 and some of Storagetek’s marketing efforts in connection with that machine. A co-inventor of the ’151 patent admittedly saw articles about the Storagetek ATL" }, { "docid": "22447667", "title": "", "text": "that the district court improperly interpreted our mandate in Odetics II, suggesting that because the jury did not specifically find facts related to the “102(g) defense,” the Odetics II mandate could not have foreclosed further litigation on this issue. We are unpersuaded. We review the interpretation of our own mandate de novo. See Engel Indus., Inc. v. Lockformer Co., 166 F.3d 1379, 1382, 49 U.S.P.Q.2d 1618, 1621 (Fed.Cir.1999). See also Laitram Corp. v. NEC Corp., 115 F.3d 947, 950, 42 U.S.P.Q.2d 1897, 1899 (Fed.Cir.1997). “Unless remanded by this court, all issues within the scope of the appealed judgment are incorporated within the scope of the mandate and are thus precluded from further adjudication.” Engel, 166 F.3d at 1383, 49 U.S.P.Q.2d at 1621. In Odetics II, we noted that the jury in the first trial had specifically found that the claims of the ’151 patent were not invalid, i.e., neither anticipated nor obvious. See 1997 WL 357598, at *6. We therefore declined to consider STK’s section 102(g) invalidity arguments, noting that “STK in essence asks us to consider a patentability issue without having cross-appealed the jury’s verdicts on patentability.” Id. We ordered that the case be remanded only as to the issue of “infringement vel non, under a proper claim construction,” while leaving open the laches question. Id. at *1. STK petitioned this court to recall the Odetics II mandate, suggesting that the court modify the remand order to allow further consideration of the “102(g) defense.” After briefing on the issue from Odetics, this court denied the petition. See Odetics, Inc. v. Storage Tech., Inc., Nos. 96-1261, -1301 (Fed. Cir., order filed Feb. 27, 1998). STK offers no reason why we should now alter our holding — clearly stated in Odetics II-that STK’s failure to appeal the judgment of no invalidity precluded the continued litigation of that issue. The entry of a distinct judgment of no invalidity after the first jury trial unquestionably put the patentability of the T51 patent in play when the overall judgment of liability was appealed. See Engel, 166 F.3d at 1383-84, 49 U.S.P.Q.2d at 1622 (noting" }, { "docid": "11489222", "title": "", "text": "between (i) inferring, in Fromson circumstances, that a defendant already found guilty of infringing activity wilfully engaged in that activity, and (ii) inferring from these circumstances—in particular, the fact that Storagetek did not specifically request an opinion about its pass-thru port—some fact that would defeat Storagetek’s laches defense. Certainly, if Storagetek had obtained an opinion that its products infringed the 151 patent, but went on producing its ATLs anyway, its hands would be unclean and the laches claim would fail. It might even be proper to accuse Storagetek of having unclean hands had it completely failed in its duty to inquire as to whether its product infringed the Odetics patent. Here, however, Storagetek obtained from counsel an opinion of non-infringement with respect to its device as a whole. In this circumstance, the fact that Storagetek may not have specifically asked counsel to consider its pass-thru port vis-a-vis the 151 patent does not warrant a negative inference sufficient to establish unclean hands. Odetics further asserts that the determination of wilfullness is an issue for the jury, and that therefore any determination of laches at this stage is premature. This argument is unsound. If this were correct, laches would be a dead-letter defense: in order to defeat it, a plaintiff could merely allege wilful infringement, in which event the trial court would be unable to rule on the laches question until the trier of fact had made a finding as to wilfulness. Odetics has pointed to no authority, nor has the Court discovered any, suggesting that a court must wait for trial on the issue of wilfulness to decide the laches question. VI. The final issue with respect to the application of laches in this ease is whether Storagetek’s customers are entitled to benefit from the defense. Odetics argues that the customer defendants should not be permitted to benefit from any laches defense Storagetek may have, as laches is a “personal defense.” This argument ignores the indemnity arrangements Storagetek has with its customers, and the importance of this fact to the equitable purposes of laches. If the benefit of laches is not" }, { "docid": "22447632", "title": "", "text": "After receiving instructions from the district court regarding the meaning of disputed terms, a jury considering the issues of validity and infringement under the doctrine of equiva lents found the asserted claims of the ’151 patent not invalid and not infringed. In late 1996, Odetics appealed. We held that the district court’s claim construction was erroneous, and therefore vacated the judgment entered by the district court, remanding the case for further proceedings in light of the correct claim interpretation. See Odetics II, 1997 WL 357598, at *7. The case returned to the district court, where a second jury trial commenced on March 23, 1998, resulting in a verdict of willful infringement on March 27, and an award of $70.6 million in damages. In post-trial motions, the district court, on May 1, 1998, denied STK’s motion for JMOL and alternative motion for a new trial. See Odetics, No. 95-881-A (E.D.Va. order filed May 1, 1998). Sometime in May or June 1998, the district court, “[a]f-ter denying the motions [for JMOL and a new trial] ... learned of the Federal Circuit’s decision in Chiuminatta Concrete Concepts, Inc. v. Cardinal Indus., Inc., 145 F.3d 1303, [46 U.S.P.Q.2d 1752] (Fed.Cir.1998).” Odetics VII, 14 F.Supp.2d at 810, 47 U.S.P.Q.2d at 1925. The district court, concluding that Chiuminatta “potentially counseled a contrary result in the disposition of[ ] the JMOL motion” ordered the parties to file supplemental memoranda discussing the impact of the opinion on this case. Id. After receiving such briefing and conducting a hearing, the district court reversed its earlier denial of STK’s motion for JMOL, holding that Chiuminatta “mandatefs] entry of judgment as a matter of law in favor of the defendants.” Id. at 807, 47 U.S.P.Q.2d at 1924. This appeal followed, vesting us with jurisdiction pursuant to 28 U.S.C. § 1295(a)(1) (1994). II We review a grant of JMOL without deference to the district court. See, e.g., Texas Instruments Inc. v. Cypress Semiconductor Corp., 90 F.3d 1558, 1563, 39 U.S.P.Q.2d 1492, 1496 (Fed.Cir.1996); Markman v. Westview Instruments, Inc., 52 F.3d 967, 975, 34 U.S.P.Q.2d 1321, 1326 (Fed.Cir.1995) (en banc), aff'd, 517 U.S." }, { "docid": "11489192", "title": "", "text": "Timothy Crabtree, a co-inventor of the 151 patent, recalls seeing trade journal articles about the Storagetek ATL product circulated at Odetics sometime in 1987. In fact, Crab-tree admitted that “the articles were circulated, because obviously this was somewhat similar technology to what we are working on, although in an entirely different industry.” Specifically, Crabtree recalled thinking “Oh, someone else is doing something similar to what we are doing for a different purpose.” Crabtree also knew at this time that the silos or library modules of the Storagetek ATL could be interconnected. The trade journal articles circulated at Odetics were only part of Storagetek’s marketing efforts in connection with the new ACS 4400. These efforts also included circulation of the original ACS 4400 system manual. This manual contains references to, and diagrams of, the system’s pass-thru port, the ’151 patent element on which Odetics’ infringement claims focus. It also explicitly states that the pass-thru port rotates. Unlike the trade journal articles, however, it is unclear whether anyone at Odetics read the manual during this time period. Notwithstanding its knowledge of the Sto-ragetek ATL, including that the ACS 4400 embodied “similar technology” to the ’151 patent to accomplish a similar result, Odetics did not begin to investigate the possibility of infringement until late 1993. In November of that year, Storagetek approached Odetics regarding a potential sale of its subsidiary, Lago Systems, to Odetics. As a part of those sales discussions, Storagetek provided Odetics with documentation of Lago’s ATL. Two months later, in January 1994, Odetics retained legal counsel to help assess the Sto-ragetek products vis-a-vis the T51 patent, thereby taking the first legal steps on the road to the filing of this suit in June 1995. II. Laches is a seasoned, settled doctrine, firmly rooted in the foundational soils of equity and justice. It is based on the Latin maxim, “vigilantibus non dormienti-bus aequitas subvenit,” which means “equity aids the vigilant, not those who sleep on their rights.” The doctrine of laches may be applied to limit the judicial relief available to a plaintiff who waits an unreasonable amount of time before" }, { "docid": "22447656", "title": "", "text": "request for a permanent injunction, arguing that the judgment of laches (which it does not appeal) should not prevent an injunction against the use, service, or repair of machines that STK manufactured and sold during the laches period. Before the district court granted JMOL, thereby mooting Odetics’s aspirations for a permanent injunction, the court rejected this argument, holding that the machines sold during the laches period were free from liability from infringement, and thus acquired an implied license allowing their service and repair. See Odetics V, 14 F.Supp.2d 785 (ED.Va.1998). Section 283 of Title 35 authorizes district courts, upon a finding of infringement, to impose a permanent injunction “in accordance with the principles of equity.”- Thus, while we have stated the general rule that an injunction should follow an infringement verdict, see, e.g., Richardson v. Suzuki Motor Co., 868 F.2d 1226, 1247, 9 U.S.P.Q.2d 1913, 1929 (Fed.Cir.1989), we also recognize that district courts, as befits a question of equity, enjoy considerable discretion in determining whether the facts of a situation require it to issue an injunction, see Roche Prods., Inc. v. Bolar Pharm. Co., 733 F.2d 858, 865, 221 U.S.P.Q. 937, 942 (Fed.Cir.1984), superseded on other grounds by 35 U.S.C. § 271(e)(1) (1994); see also 35 U.S.C. § 283 (1994). We review, then, a denial of an injunction for abuse of discretion. See Johns Hopkins Univ. v. Cellpro, Inc., 152 F.3d 1342, 1354, 47 U.S.P.Q.2d 1705, 1713 (Fed.Cir.1998); Ortho Pharm. Corp. v. Smith, 959 F.2d 936, 945, 22 U.S.P.Q.2d 1119, 1127 (Fed.Cir.1992). For the reasons that follow, we agree with the district court. Prior to the first jury trial, the district court granted summary judgnent that Odetics had committed laches in inexcusably failing to assert its rights under the ’151 patent prior to filing the complaint in 1995. See Odetics I, 919 F.Supp. 911, 927, 38 U.S.P.Q.2d 1873, 1885 (ED.Va.1996). Storage Technology sold co-defendants Crestar and Visa fourteen infringing devices during the pre-complaint laches period. It is undisputed, of course, that Odetics cannot recover damages for such sales. See A.C. Aukerman Co. v. R.L. Chaides Constr. Co., 960 F.2d 1020," }, { "docid": "4965283", "title": "", "text": "MEMORANDUM OPINION ELLIS, District Judge. Section 102(g) of Title 35 sets forth, in two sentences, the rule of priority of invention as a condition of patentability. The first sentence establishes that a person is not entitled to a patent if the invention was made earlier by someone else who did not abandon, suppress, or conceal it. The second sentence is an instruction on how to determine priority of invention. This summary judgment motion presents the novel question whether the second sentence is applicable in infringement suits, as well as in interference proceedings. I. The relevant facts are undisputed. Plaintiff Odetics, Inc. (“Odetics”), a Delaware corporation, holds United States Patent No. 4,779,151 (the “151 patent”), entitled “Robotic Tape Cassette Handling System With Rotary Loading and Unloading Mechanism.” This patent covers an automated tape library (“ATL”) system for handling and storing video or computer cartridges. Specifically, the Odetics ATL system includes a storage library with bins for tape cartridges, a rotary mechanism for providing access to the library, and a robot for moving cartridges between the storage bins and the1 rotating mechanism or to tape transports (i.e., tape players). Storage Technology Corporation (“Stora-getek”), also a Delaware corporation, holds United States Patent No. 4,864,511 (the “’511 patent”) in connection with its own ATL, which it calls an automated cartridge system. The Storagetek system contains a rotatable pass-thru port that permits the exchange of cartridges between storage modules within a library or from one library to an adjacent library. It also includes a robot that moves tapes between the storage bins and the pass-thru port or from the bins to a tape transport. On June 29, 1995, Odetics filed this suit against Storage Technology Corporation, Visa International Service Association, Inc., Visa USA, Inc., and Crestar Bank, Inc. (collectively, the “Storagetek defendants”), claiming infringement of the ’151 patent. The Storagetek defendants respond, inter alia, by asserting a defense under 35 U.S.C. § 102(g). More precisely, the Storagetek defendants claim that Storagetek conceived of the invention described in the 151 patent before Odetics and diligently reduced the invention to practice, and that this prior invention is" }, { "docid": "22447663", "title": "", "text": "(Fed.Cir.1995) (en banc). Here, although the jury found that STK infringed willfully, the district court declined to grant enhanced damages. See Odetics VI, 14 F.Supp.2d 800 (E.D.Va.1998). Odetics appeals this decision. The law is clear that while willful infringement may allow enhanced damages, such a finding does not compel the district court to grant them. See Read, 970 F.2d at 826, 23 U.S.P.Q.2d at 1435. Instead, the decision to grant or deny enhanced damages remains firmly within the scope of the district court’s reasoned discretion, informed by the totality of the circumstances. See State Indus., Inc. v. Mor-Flo Indus., Inc., 948 F.2d 1573, 1576, 20 U.S.P.Q.2d 1738, 1740 (Fed.Cir.1991). We review, then, the denial of enhanced damages for abuse of discretion. See SRI Int’l, Inc. v. Advanced Tech. Lab., Inc., 127 F.3d 1462, 1469, 44 U.S.P.Q.2d 1422, 1427 (Fed.Cir.1997). In this case, we discern no abuse of discretion. As required, see Jurgens v. CBK, Ltd., 80 F.3d 1566, 1572, 38 U.S.P.Q.2d 1397, 1401 (Fed.Cir.1996), the district court provided detailed reasons for the denial of enhanced damages, closely tracking the nine factors highlighted in Read, 970 F.2d at 827-28, 23 U.S.P.Q.2d at 1435-36. See Odetics VI, 14 F.Supp.2d at 803-04. Odetics, however, addresses only three of the nine factors, arguing: (1) that the district court erred by considering STK’s avowed belief that the ’151 patent was invalid; (2) that the case was, contrary to the district court’s conclusion, not close; and, (3) that the ten-year duration of the infringement should not have been tempered by the recognition of the laches defense. Odetics does not address the remaining four factors that the district court found weighed in favor of STK, namely that: STK had not copied the invention; STK engaged in no misconduct during litigation; STK had evinced no motivation to harm Odetics; and, STK had not attempted to conceal its infringement. Further, Odetics does not address that the district court stated that, given the closeness of the case, it would have denied enhanced damages even if STK had not “mounted a good faith and substantial challenge to the existence of infringement.”" } ]

[ { "docid": "15498871", "title": "", "text": "out, Jones had, shortly before the Court was advised of his having expressed dissatisfaction with counsel’s cross-examination of a witness, advised the Court that his counsel spoke for him. Unlike Brown, Jones was personally addressed by the Court soliciting reasons for his apparent desire not to personally participate further in the trial. The issues in the instant case, unlike Brown, do not go to whether Jones had a right to dispense with the services of his counsel and proceed in propria persona. The contention here goes not to the right to have his counsel relieved but whether the Court failed to make appropriate inquiry as to the grounds of dissatisfaction, if any, and whether under the circumstances the Court erred in failing to, sua sponte, advise him of his right to proceed in propria persona. That Jones had a right to so proceed is unquestioned. See United States v. Dougherty, 154 U.S.App.D.C. 76, 473 F.2d 1113 (1973). See also Brown v. United States, supra, at 369 — 70 (Washington, J., dissenting); Adams v. United States ex rel. McCann, 317 U.S. 269, 279, 63 S.Ct. 236, 87 L.Ed. 268 (1942); and 28 U.S.C. § 1654. The right to proceed in propria persona, whether it be founded on a constitutional or statutory right, is one which must be timely asserted and accompanied by a valid waiver of counsel. See United States v. Dougherty, supra, at 1123. Neither element is present here. Not the slightest issue referring to counsel arose until the Government had rested its case. The record is devoid of any indication that there was further evidence to be adduced by either the prosecution or the defense. Jones, after being personally advised by the Court of his right to testify or to remain silent, chose the latter. He gave no indication of a desire that his counsel be removed; hence it follows there was no duty on the Court under the circumstances of this case to advise him of his right to proceed propria persona and this be so regardless of its source. To hold otherwise would be to require that" } ]

[ { "docid": "23339954", "title": "", "text": "frequently given reason is that the decision is a matter of trial strategy between the defendant and counsel; the court should not interfere. See, e.g., McKenzie, 303 A.2d at 418; Johnson, 425 N.W.2d at 189; Bogus, 538 A.2d at 1286. There is also a danger that the judge will appear to encourage the defendant to invoke or to waive this right. See Commonwealth v. Waters, 399 Mass. 708, 506 N.E.2d 859, 865 (1987); Bogus, 538 A.2d at 1286. This danger is of great significance because the right not to testify counterpoises the right to testify, and the exercise of one is the waiver of the other. Waters, 506 N.E.2d at 865. Where a defendant foregoes his personal and fundamental right to represent himself and proceeds with counsel, it is not the norm for the record to show that by proceeding with counsel the defendant has knowingly and understanding^ waived his right to represent himself. On the contrary, the presumption is made that when an accused proceeds with counsel he has elected to have counsel represent him. All courts reaching the question have uniformly and explicitly held that absent a request from the defendant a court has no duty sua sponte to advise him of his right to self-representation, nor any duty to ensure on the record that waiver of this right was knowing and intelligent. While no federal cases post-dating Faretta squarely address the issue, several pre-Faretta cases reach this conclusion. E.g., United States v. Jones, 514 F.2d 1331 (D.C.Cir.1975); United States ex rel. Maldonado v. Denno, 348 F.2d 12, 15-16 (2d Cir.1965); see also United States ex rel. Soto v. United States, 504 F.2d 1339 (3d Cir.1974) (rejecting constitutional right to proceed pro se, but holding that even if right is constitutional, no need for court sua sponte to advise defendant of right). State courts have uniformly come to the same conclusion. See, e.g., State v. Rickman, 148 Ariz. 499, 715 P.2d 752, 756 (1986); People v. Salazar, 74 Cal.App.3d 875, 887-88, 141 Cal.Rptr. 753 (1977), citing with approval, People v. Enciso, 25 Cal.App.3d 49, 55-57, 101 Cal.Rptr. 590" }, { "docid": "23339955", "title": "", "text": "him. All courts reaching the question have uniformly and explicitly held that absent a request from the defendant a court has no duty sua sponte to advise him of his right to self-representation, nor any duty to ensure on the record that waiver of this right was knowing and intelligent. While no federal cases post-dating Faretta squarely address the issue, several pre-Faretta cases reach this conclusion. E.g., United States v. Jones, 514 F.2d 1331 (D.C.Cir.1975); United States ex rel. Maldonado v. Denno, 348 F.2d 12, 15-16 (2d Cir.1965); see also United States ex rel. Soto v. United States, 504 F.2d 1339 (3d Cir.1974) (rejecting constitutional right to proceed pro se, but holding that even if right is constitutional, no need for court sua sponte to advise defendant of right). State courts have uniformly come to the same conclusion. See, e.g., State v. Rickman, 148 Ariz. 499, 715 P.2d 752, 756 (1986); People v. Salazar, 74 Cal.App.3d 875, 887-88, 141 Cal.Rptr. 753 (1977), citing with approval, People v. Enciso, 25 Cal.App.3d 49, 55-57, 101 Cal.Rptr. 590 (1972); State v. Carter, 200 Conn. 607, 513 A.2d 47, 50-51 (1986); Torres-Arboledo v. State, 524 So.2d 403 at 411 (Fla.1988); Russell v. State, 270 Ind. 55, 383 N.E.2d 309, 312-13 (1978); State v. Stinson, 424 A.2d 327 (Me.1981); State v. McCafferty, 587 S.W.2d 611, 612 (Mo.App.1979); People v. McIntyre, 36 N.Y.2d 10, 18, 364 N.Y.S.2d 837, 844, 324 N.E.2d 322 (1974), applied in People v. Burton, 106 A.D.2d 652, 482 N.Y.S.2d 909, 910-11 (App.Div.1984); Felts v. State, 588 P.2d 572, 575-76 (Okla.Cr.1978); State v. Garcia, 92 Wash.2d 647, 600 P.2d 1010, 1014-15 (1979); State v. Sheppard, 310 S.E.2d 173, 187 (W.Va.1983); Williams v. State, 655 P.2d 273, 274-76 (Wyo.1982). Among the reasons given are that (1) the exercise of the right of self-representation is actually to the detriment of the defendant as well as to the orderly administration of justice (as could also be said of the right to testify); (2) the right to self-representation is unlike the right to counsel, which itself protects other fundamental rights; (3) a defendant with counsel has not" }, { "docid": "6436438", "title": "", "text": "U.S. 980, 108 S.Ct. 478, 98 L.Ed.2d 492 (1987); Wilson v. Mintzes, 761 F.2d 275, 278 (6th Cir.1985), has never determined whether a district court has to inform a defendant of his right to self-representation. In essence, Martin’s claim that she should have been informed of this right is an assertion that the right to self-representation can only be waived upon a knowing and intelligent waiver. However, “[a]knost without exception, the requirement of a knowing and intelligent waiver has been applied only to those rights which the Constitution guarantees to a criminal defendant in order to preserve a fair trial.” Schneckloth v. Bustamonte, 412 U.S. 218, 237, 93 S.Ct. 2041, 2052-53, 36 L.Ed.2d 854 (1973). See also United States ex rel. Soto v. United States, 504 F.2d 1339, 1345 n. 16 (3d Cir.1974). It is well-established that a defendant can reject his right to counsel only by a knowing and intelligent waiver. Faretta, 422 U.S. at 835, 95 S.Ct. at 2541; Miller, 910 F.2d at 1324. While the right to self-representation is related to the right to counsel, the right to self-representation is grounded more in considerations of free choice than in fair trial concerns. Faretta, 422 U.S. at 834, 95 S.Ct. at 2540. Thus, the right to self-representation does not implicate constitutional fair trial considerations to the same extent as does an accused’s right to counsel. See Stano v. Dugger, 921 F.2d 1125, 1143 (11th Cir.) (“The right to counsel ... is preeminent over the right to self-representation because the former attaches automatically and must be waived affirmatively to be lost, while the latter does not attach unless and until it is asserted.”) (internal quotation omitted), cert. denied, - U.S. -, 112 S.Ct. 116, 116 L.Ed.2d 85 (1991). As the constitutional basis of the right to self-representation does not require a knowing and intelligent waiver of that right, the district court need not advise a defendant of her right to proceed pro se prior to assertion of such a right. The decision in United States ex rel. Maldonado v. Denno, 348 F.2d 12, 15 (2d Cir.1965), cert. denied, 384" }, { "docid": "23567487", "title": "", "text": "district court erred by allowing him to represent himself at trial, claiming that his waiver of the right to counsel was not made knowingly and intelligently. “We review constitutional challenges de novo.” United States v. Walker, 148 F.3d 518, 528 (5th Cir.1998) (citation omitted). A defendant in a criminal trial has a constitutional right to proceed without counsel, but only when he knowingly and intelligently elects to do so. See Faretta v. California, 422 U.S. 806, 833-35, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975); see also Dunn, 162 F.3d at 307 (citations and internal quotation omitted). A defendant who wishes to waive the right to counsel “‘should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that “he knows what he is doing and his choice is made with his eyes open.” ’ ” Dunn, 162 F.3d at 307 (quoting Faretta, 422 U.S. at 835, 95 S.Ct. 2525 (quoting Adams v. United States ex rel. McCann, 317 U.S. 269, 279, 63 S.Ct. 236, 87 L.Ed. 268 (1942))). In determining whether a defendant has effectively waived the right to counsel, the district court must consider various factors, including defendant’s age, education, background, experience, and conduct. United States v. Davis, 269 F.3d 514, 518 (5th Cir.2001) (citation omitted). The court must ensure that the waiver is not the result of coercion or mistreatment, and must be satisfied that the accused understands the nature of the charges, the consequences of the proceedings, and the practicality of waiving the right to counsel. Id. (citation omitted). On the morning of trial, Joseph’s appointed defense counsel, Mr. George Chaney, Jr., informed the court that Joseph did not wish to be represented by counsel because Joseph lacked confidence in his counsel. After expressing a desire to proceed pro se, the court explained to Joseph the disadvantages of self-representation. The court provided: “I seriously recommend to you that you allow Mr. Chaney and his assistant to represent you ... because they are very good lawyers.” After informing Joseph that Mr. Chaney would remain as stand-by counsel, the court reiterated its warning:" }, { "docid": "17516340", "title": "", "text": "course of these, two proceedings, the district court established that Torres understood her rights, knew her options, was aware of the risks and voluntarily waived her right to counsel. Refusal to Participate Torres contends that “[allowing [her] to proceed without counsel in the face of her stated intention to withdraw from the proceedings” violated her Sixth Amendment right to counsel. She maintains that a decision to proceed pro se is inconsistent with her decision not to participate, and that, therefore, the district court should have appointed counsel on her behalf. These arguments are unavailing. We recognize that a defendant’s decision not to participate in the proceedings may cast doubt on whether her waiver was knowing and intelligent. See, e.g., Montilla v. INS, 926 F.2d 162, 170 (2d Cir.1991) (waiver of counsel may not be inferred solely from defendant’s silence); United States v. Allen, 895 F.2d 1577, 1578-79 (10th Cir.1990) (defendant’s rejection of appointed counsel, failure to retain counsel, non-participation at trial, and failure to present a defense was invalid in light of court’s failure to determine whether his waiver was knowing or intelligent). But a court need not inquire into the defendant’s knowledge of the law, whether she will testily in her own defense, or how or why she will conduct her defense. See Faretta, 422 U.S. at 834, 95 S.Ct. at 2540-41; United States ex. rel. Maldonado v. Denno, 348 F.2d 12, 15 (2d Cir.1965). At least unless the defendant’s action results in a non-adversarial proceeding, a court’s Faretta inquiry should only focus on whether the defendant “has the requisite capacity to understand and sufficient knowledge to make a rational choice.” Tracy, 12 F.3d at 1192. Furthermore, once a defendant has knowingly and intelligently waived her right to counsel, a district court should not interfere with the defendant’s choice, even though it “may sometimes seem woefully foolish to the judge.” United States v. Curdo, 694 F.2d 14, 25 (2d Cir.1982). Just as district courts should not “compel a defendant to accept a lawyer [she] does not want,” Faretta, 422 U.S. at 833, 95 S.Ct. at 2540, they should not" }, { "docid": "23339953", "title": "", "text": "of each choice. For the court to discuss the choice with the defendant would intrude into the attorney-client relationship protected by the sixth amendment. Id., citing United States v. Goodwin, 770 F.2d 631, 637 (7th Cir.1985). Every case of which we are aware has reached this same conclusion. See, e.g., Knowles v. State, 364 So.2d 712, 713-14 (Ala.Cr.App.1978); People v. Vargas, 195 Cal.App.3d 1385, 241 Cal.Rptr. 360 (1987); People v. Longwith, 125 Cal.App.3d 400, 178 Cal-Rptr. 136 (1981); People v. Thomas, 43 Cal.App.3d 862, 866-68, 118 Cal.Rptr. 226 (1974); People v. Mozee, 723 P.2d 117 (Colo.1986); State v. LoSacco, 12 Conn.App. 481, 531 A.2d 184, 187 (1987); State v. McKenzie, 17 Md.App. 563, 303 A.2d 406 (Md.Spec.App.1973); Martin v. State, 73 Md.App. 597, 535 A.2d 951, 952-53 (Md. App.1988) (collecting cases); People v. Johnson, 168 Mich.App. 581, 425 N.W.2d 187, 189 (1988); State v. Bogus, 223 N.J.Super. 409, 538 A.2d 1278, 1287-88 (1988) (collecting cases); State v. Poindexter, 69 N.C.App. 691, 318 S.E.2d 329, cert. denied, 312 N.C. 497, 322 S.E.2d 563 (1984). The most frequently given reason is that the decision is a matter of trial strategy between the defendant and counsel; the court should not interfere. See, e.g., McKenzie, 303 A.2d at 418; Johnson, 425 N.W.2d at 189; Bogus, 538 A.2d at 1286. There is also a danger that the judge will appear to encourage the defendant to invoke or to waive this right. See Commonwealth v. Waters, 399 Mass. 708, 506 N.E.2d 859, 865 (1987); Bogus, 538 A.2d at 1286. This danger is of great significance because the right not to testify counterpoises the right to testify, and the exercise of one is the waiver of the other. Waters, 506 N.E.2d at 865. Where a defendant foregoes his personal and fundamental right to represent himself and proceeds with counsel, it is not the norm for the record to show that by proceeding with counsel the defendant has knowingly and understanding^ waived his right to represent himself. On the contrary, the presumption is made that when an accused proceeds with counsel he has elected to have counsel represent" }, { "docid": "19983406", "title": "", "text": "mental disease that would render him incompetent for trial. In any event, Dr. Cunic’s examination was more recent, and just as a “district court may rely on one of two competing competency opinions given by qualified experts,” Ghane, 490 F.3d at 1040, it may also credit a recent psychiatric evaluation over older information, so long as its conclusion is supported by sufficient evidence. We see no clear error in the district court’s decision to credit Dr. Cunic’s contemporaneous expert opinion and to conclude that Kiderlen was competent to proceed. B. Kiderlen also argues that even if he was competent to stand trial, his decision to waive the right to counsel and proceed pro se was not knowing, intelligent, and voluntary. We review de novo the district court’s decision to allow the defendant to waive his right to counsel. United States v. Mahasin, 442 F.3d 687, 691 (8th Cir.2006). The Sixth Amendment grants an accused both the right to counsel and the alternative right to proceed pro se. Faretta v. California, 422 U.S. 806, 807, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). To represent himself, an accused must “knowingly and intelligently” waive his constitutional right to counsel. Id. at 835, 95 S.Ct. 2525. Because of “the enormous importance and role that an attorney plays at a criminal trial,” the Supreme Court has “imposed the most rigorous restrictions on the information that must be conveyed to a defendant, and the procedures that must be observed, before permitting him to waive his right to counsel at trial.” Patterson v. Illinois, 487 U.S. 285, 298, 108 S.Ct. 2389, 101 L.Ed.2d 261 (1988). In Faretta, the Court said that “[although a defendant need not himself have the skill and experience of a lawyer in order competently and intelligently to choose self-representation, he should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that ‘he knows what he is doing and his choice is made with eyes open.’ ” 422 U.S. at 835, 95 S.Ct. 2525 (quoting Adams v. United States ex rel. McCann, 317 U.S. 269, 279, 63" }, { "docid": "8584132", "title": "", "text": "Kentucky Revised Statute § 527.040 and to trigger an enhanced punishment under the persistent felony offender statute violated his constitutional guarantee against double jeopardy, and (3) whether his conviction as a persistent felony offender violated the Sixth and Fourteenth amendments because of the prosecutor’s use of uncounseled pri- or felony convictions to support the conviction. A. Robards says that he was improperly denied his constitutional right to conduct his own trial. He also argues that his request to proceed pro se was timely because it had been made before the trial began and before the jury was selected. Robards further contends that the District Court erred in finding that the Supreme Court of Kentucky had found that his request to proceed pro se was not in good faith. Finally, he asserts that even if the state court had reached such a conclusion, it would not have been supported by the record. Robards relies upon Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), in which the Supreme Court, after recognizing that a criminal defendant in a state criminal trial has an independent constitutional right of self-representation, held that such an accused may proceed without counsel when he voluntarily and intelligently elects to do so. Id. at 807, 95 S.Ct. at 2527. Robards also relies upon several cases which hold that a defendant makes a timely request to proceed pro se if it is done prior to the jury being selected or sworn. See Chapman v. United States, 553 F.2d 886, 887 (5th Cir.1977); United States v. Price, 474 F.2d 1223, 1227 (9th Cir.), reh’g denied, 484 F.2d 485 (9th Cir.1973); United States v. Dougherty, 473 F.2d 1113, 1124 (D.C.Cir.1972); United States ex rel. Maldonado v. Denno, 348 F.2d 12, 16 (2d Cir.1965), cert. denied, 384 U.S. 1007, 86 S.Ct. 1950, 16 L.Ed.2d 1020 (1966). It should be noted that these cases also recognize an exception when the prosecution makes an affirmative showing that the defendant’s request for self-representation is merely a tactic to secure a delay in the proceeding. The instant case is inapposite to Faretta," }, { "docid": "8584133", "title": "", "text": "a criminal defendant in a state criminal trial has an independent constitutional right of self-representation, held that such an accused may proceed without counsel when he voluntarily and intelligently elects to do so. Id. at 807, 95 S.Ct. at 2527. Robards also relies upon several cases which hold that a defendant makes a timely request to proceed pro se if it is done prior to the jury being selected or sworn. See Chapman v. United States, 553 F.2d 886, 887 (5th Cir.1977); United States v. Price, 474 F.2d 1223, 1227 (9th Cir.), reh’g denied, 484 F.2d 485 (9th Cir.1973); United States v. Dougherty, 473 F.2d 1113, 1124 (D.C.Cir.1972); United States ex rel. Maldonado v. Denno, 348 F.2d 12, 16 (2d Cir.1965), cert. denied, 384 U.S. 1007, 86 S.Ct. 1950, 16 L.Ed.2d 1020 (1966). It should be noted that these cases also recognize an exception when the prosecution makes an affirmative showing that the defendant’s request for self-representation is merely a tactic to secure a delay in the proceeding. The instant case is inapposite to Faretta, supra, where “weeks before trial, [the Defendant] clearly and unequivocally declared to the trial judge that he wanted to represent himself and did not want counsel.” 422 U.S. at 835, 95 S.Ct. at 2541. The record affirmatively showed “Faretta as literate, competent, and understanding, and that he was voluntarily exercising his informed free will.” Id. Thus, in Faretta, the defendant had a genuine inclination to conduct his own defense, and demonstrated an ability to do so. Here, Robards invoked his right of self-representation on the day of trial, after the clerk had called the roll of jurors. Robards admitted that Peale had made three trips to visit him in prison. Moreover, Peale noted that Robards had not expressed any displeasure with the quality of his attorney’s efforts prior to the day of trial. The record also indicates that Robards told the trial court: “I don’t know nothing about the law.” Although “technical legal knowledge, as such, [is] not relevant to an assessment of [Robards’] knowing exercise of the right to defend himself,” Faretta v. California," }, { "docid": "6436439", "title": "", "text": "right to counsel, the right to self-representation is grounded more in considerations of free choice than in fair trial concerns. Faretta, 422 U.S. at 834, 95 S.Ct. at 2540. Thus, the right to self-representation does not implicate constitutional fair trial considerations to the same extent as does an accused’s right to counsel. See Stano v. Dugger, 921 F.2d 1125, 1143 (11th Cir.) (“The right to counsel ... is preeminent over the right to self-representation because the former attaches automatically and must be waived affirmatively to be lost, while the latter does not attach unless and until it is asserted.”) (internal quotation omitted), cert. denied, - U.S. -, 112 S.Ct. 116, 116 L.Ed.2d 85 (1991). As the constitutional basis of the right to self-representation does not require a knowing and intelligent waiver of that right, the district court need not advise a defendant of her right to proceed pro se prior to assertion of such a right. The decision in United States ex rel. Maldonado v. Denno, 348 F.2d 12, 15 (2d Cir.1965), cert. denied, 384 U.S. 1007, 86 S.Ct. 1950, 16 L.Ed.2d 1020 (1966), similarly indicates that the right to self-representation does not stem from core constitutional fair trial concerns. In Maldonado, decided before Faretta, the court recognized a defendant’s constitutional right to self-representation. Id. Nevertheless, the court specifically went on to state that a defendant need not be notified of this right. The court acknowledged the burdens and difficulties of a notice requirement and reasoned that “if notice of the right had to be given, the task of administering the overriding constitutional policy in favor of granting a lawyer to every person accused of a serious crime would become unduly treacherous.” Id. at 16 (citations omitted). Finally, we note that limitations and conditions placed on the right of self-representation counsel against requiring a trial court to notify a criminal defendant of this right. To assert the right of self-representation, a defendant must do so unequivocally. Hamilton v. Vasquez, 17 F.3d 1149 (9th Cir.1994); United States v. Jones, 938 F.2d 737, 742 (7th Cir.1991); Maldonado, 348 F.2d at 15. See" }, { "docid": "23339952", "title": "", "text": "see Griffin v. California, 380 U.S. 609, 614-15, 85 S.Ct. 1229, 1232-33, 14 L.Ed.2d 106 (1965). If anything, one would expect the right not to testify to be more zealously guarded than the right to testify. An uninformed defendant probably expects to testify and may be unaware how strongly the Constitution protects his right not to testify. Yet the trial court has no duty to make a sua sponte inquiry to advise the defendant of his right not to testify and to ensure that its waiver was knowing and intelligent. Rather, the defendant by taking the stand waives this significant right even though the record gives no explicit assurance that this waiver was knowing and intelligent. Wagner, 834 F.2d at 1483. The court has no obligation to inquire into whether the defendant knowingly and intelligently waived the right not to testify inherent in the privilege against compelled self-incrimination. Id. It is primarily the responsibility of counsel, not the judge, to advise a defendant on whether or not to testify, and the tactical advantages and disadvantages of each choice. For the court to discuss the choice with the defendant would intrude into the attorney-client relationship protected by the sixth amendment. Id., citing United States v. Goodwin, 770 F.2d 631, 637 (7th Cir.1985). Every case of which we are aware has reached this same conclusion. See, e.g., Knowles v. State, 364 So.2d 712, 713-14 (Ala.Cr.App.1978); People v. Vargas, 195 Cal.App.3d 1385, 241 Cal.Rptr. 360 (1987); People v. Longwith, 125 Cal.App.3d 400, 178 Cal-Rptr. 136 (1981); People v. Thomas, 43 Cal.App.3d 862, 866-68, 118 Cal.Rptr. 226 (1974); People v. Mozee, 723 P.2d 117 (Colo.1986); State v. LoSacco, 12 Conn.App. 481, 531 A.2d 184, 187 (1987); State v. McKenzie, 17 Md.App. 563, 303 A.2d 406 (Md.Spec.App.1973); Martin v. State, 73 Md.App. 597, 535 A.2d 951, 952-53 (Md. App.1988) (collecting cases); People v. Johnson, 168 Mich.App. 581, 425 N.W.2d 187, 189 (1988); State v. Bogus, 223 N.J.Super. 409, 538 A.2d 1278, 1287-88 (1988) (collecting cases); State v. Poindexter, 69 N.C.App. 691, 318 S.E.2d 329, cert. denied, 312 N.C. 497, 322 S.E.2d 563 (1984). The most" }, { "docid": "4104947", "title": "", "text": "address the situation in which a defendant receives the assistance, with the trial court’s benediction, of an attorney acting in a stand-by or advisory role. See McKaskle v. Wiggins, 465 U.S. 168, 183, 104 S.Ct. 944, 79 L.Ed.2d 122 (1984) (although a defendant has no constitutional right to “hybrid” representation, a trial court has discretion to permit such an arrangement). Where a defendant is initially represented by counsel but subsequently requests to proceed pro se, he may allege that counsel was ineffective at least up to the point where the defendant began to represent himself. See, e.g., Hance v. Zant, 696 F.2d 940, 950 (11th Cir.1983); Rodriguez v. State, 763 S.W.2d 893, 896 (Tex.Ct.App.1988). In addition, where standby or advisory counsel assumes an advisory role or exercises a degree of control over a defendant’s case, “his or her potential for ineffectiveness, though diminished by the defendant’s primary role, is not completely eliminated.” Ali v. United States, 581 A.2d 368, 379 (D.C.1990); see also Hance v. Kemp, 258 Ga. 649, 373 S.E.2d 184, 185-86 (1988) (pro se defendant stated claim of ineffective counsel where he was told by the trial court that by electing to act as co-counsel he would not waive his right to later raise an ineffectiveness claim as to his attorney’s performance). Counsel’s competency may thus reasonably be challenged “within the limited scope of the duties assigned to or assumed by counsel.” People v. Bloom, 48 Cal.3d 1194, 259 Cal.Rptr. 669, 774 P.2d 698, 718 (1989) (emphasis removed); see also Downey v. People, 25 P.3d 1200, 1204 (Colo.2001) (en banc); State v. Bettney, 529 A.2d 1356, 1357 (Me.1987) (per curiam). Pursuant to the Supreme Court’s caution in Faretta, any claim of ineffectiveness of counsel must rely solely upon counsel’s failures rather than on an alleged inadequacy in defendant’s own representation of himself. See, e.g., People v. Doane, 200 Cal.App.3d 852, 246 Cal.Rptr. 366, 373 (1988). Although it has yet to reach the matter, the court of appeals for the Second Circuit seems substantially in accord with these observations. As the court explained in United States v. Schmidt, “[p]erhaps" }, { "docid": "11781213", "title": "", "text": "requirement, the Court specifically mentioned Section 3161(h)(1)(A), which excludes delay resulting from proceedings concerning the competency of the defendant. 54 U.S.L.W. at 4496. Because it is thus clear that the entire period from October 13, 1983, to April 17, 1984, is ex-cludable under either Section 3161(h)(1)(F) or Section 3161(h)(1)(A), Matsushita’s Speedy Trial Act claim must be rejected. 4. Fifth and Sixth Amendment Claims Finally, Matsushita claims that Judge Cannella’s refusal of his request to assume his own defense deprived him of his sixth amendment right to represent himself. This request came after the defense had rested and after the judge had entertained counsel’s requests to charge. His claim is based on Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), in which the Supreme Court held that a criminal defendant has a constitutional right under the sixth amendment to represent himself. Matsushita argues that this right is unqualified and may be asserted at any point in the criminal proceedings. Our post-Faretta holdings, however, are to the contrary. In United States v. Brown, 744 F.2d 905, 908 (2d Cir.), cert. denied, — U.S. —, 105 S.Ct. 599, 83 L.Ed.2d 708 (1984), we stated that the right to proceed pro se “is unqualified only if exercised before the commencement of trial.” See also Sapienza v. Vincent, 534 F.2d 1007, 1010 (2d Cir.1976)(reaffirming vitality of qualified privilege rule of United States ex rel. Maldonado v. Denno, 348 F.2d 12 (2d Cir.1965), cert. denied, 384 U.S. 1007, 86 S.Ct. 1950, 16 L.Ed.2d 1020 (1966), even in light of Faretta). The prejudice to the legitimate interests of the defendant must be balanced against the potential disruption of the proceedings in progress. Sapienza, 534 F.2d at 1010. The appropriate criteria for a trial'judge to consider are the defendant’s reasons for the self-representation request, the quality of counsel representing the party, and the party’s prior proclivity to substitute counsel. Id. Under these standards, we believe that Judge Cannella was well within his discretion in denying Matsushita’s request. Mat-sushita was advised at length in March, 1985, about his right to proceed pro se and" }, { "docid": "23339964", "title": "", "text": "the defendant was unaware that he had a right to testify. The defendant in Siciliano asserted in his habeas corpus affidavit that his attorney refused to allow him to testify in his own behalf. The court held that this assertion did not require the district court to hold an evidentiary hearing on his claimed denial of his constitutional right to testify. Id. at 31. Although nothing in the record before the court indicated that Siciliano knew that he had the constitutional right to override his attorney, the court treated his acquiescence at the trial in his attorney’s advice as in effect a waiver of the constitutional right. Conduct, without proof of knowledge of the constitutional right, was enough. All circuit courts reaching the question have held that courts have no affirmative duty sua sponte to address a silent defendant and inquire whether he knowingly and intelligently waives the right to testify. Ortega v. O’Leary, 843 F.2d 258, 261 (7th Cir.), cert. denied, — U.S. — , 109 S.Ct. 110, 102 L.Ed.2d 85 (1988); Siciliano, 834 F.2d at 30; United States v. Bernloehr, 833 F.2d 749, 751-52 (8th Cir.1987); United States v. Janoe, 720 F.2d 1156 (10th Cir.1983), cert. denied, 465 U.S. 1036, 104 S.Ct. 1310, 79 L.Ed.2d 707 (1984); see also Wright v. Estelle, 572 F.2d at 1073 (Thornberry, J., concurring) (5 of 14 judges). By far the majority of states that have considered the question also have held that courts have no duty sua sponte to advise the defendant of his right to testify and establish on the record that this right was waived knowingly and intelligently. Waiver of this right is presumed from the defendant’s failure to testify or notify the court of his desire to do so. E.g., State v. Allie, 147 Ariz. 320, 710 P.2d 430, 437-38 (1985); People v. Longwith, 125 Cal.App.3d 400, 178 Cal.Rptr. 136 (1981); Torres-Arboledo v. State, 524 So.2d 403, 409-11 (Fla.1988); Aragon v. State, 114 Idaho 758, 760 P.2d 1174, 1179 (1988); State v. McKinney, 221 Kan. 691, 561 P.2d 432 (1977); Commonwealth v. Waters, 399 Mass. 708, 506 N.E.2d 859," }, { "docid": "6436437", "title": "", "text": "that, when the district court was notified of Martin’s dissatisfaction with trial counsel, the court should have, at a minimum, informed Martin that she could proceed pro se if she so desired. In Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), the Supreme Court held that a state cannot impose upon a criminal defendant a state-appointed public defender. Id. at 836, 95 S.Ct. at 2541. The Court went on to recognize that the Sixth Amendment right to assistance of counsel “naturally ... implies a right of self-representation.” Id. at 821, 95 S.Ct. at 2534. See also United States v. Miller, 910 F.2d 1321, 1324 (6th Cir.1990), cert. denied, 498 U.S. 1094, 111 S.Ct. 980, 112 L.Ed.2d 1065 (1991). Faretta, however, is silent about whether trial courts have any duty to notify criminal defendants of this right, and this court, while recognizing that criminal defendants have a constitutional right to represent themselves, see Miller, 910 F.2d at 1324; United States v. McDowell, 814 F.2d 245, 248 (6th Cir.), cert. denied, 484 U.S. 980, 108 S.Ct. 478, 98 L.Ed.2d 492 (1987); Wilson v. Mintzes, 761 F.2d 275, 278 (6th Cir.1985), has never determined whether a district court has to inform a defendant of his right to self-representation. In essence, Martin’s claim that she should have been informed of this right is an assertion that the right to self-representation can only be waived upon a knowing and intelligent waiver. However, “[a]knost without exception, the requirement of a knowing and intelligent waiver has been applied only to those rights which the Constitution guarantees to a criminal defendant in order to preserve a fair trial.” Schneckloth v. Bustamonte, 412 U.S. 218, 237, 93 S.Ct. 2041, 2052-53, 36 L.Ed.2d 854 (1973). See also United States ex rel. Soto v. United States, 504 F.2d 1339, 1345 n. 16 (3d Cir.1974). It is well-established that a defendant can reject his right to counsel only by a knowing and intelligent waiver. Faretta, 422 U.S. at 835, 95 S.Ct. at 2541; Miller, 910 F.2d at 1324. While the right to self-representation is related to the" }, { "docid": "4519873", "title": "", "text": "the district court failed to give him adequate warnings about the dangers and disadvantages of self-representation, as required by Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). A defendant in a criminal trial has a Sixth Amendment right to represent himself, but only when he knowingly and intelligently chooses to do so. United States v. Joseph, 333 F.3d 587, 589-90 (5th Cir.2003)(eiting Faretta, 422 U.S. at 833-35, 95 S.Ct. 2525). Such constitutional challenges are reviewed de novo. Joseph, Id. at 589. “A defendant who wishes to waive the right to counsel should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that he knows what he is doing and his choice is made with his eyes open.” Id. at 590 (citations and internal quotation marks omitted). In determining whether a defendant has effectively waived the right to counsel, the district court must consider various factors, including the defendant’s age, education, background, experience, and conduct. The court must ensure that the waiver is not the result of coercion or mistreatment, and must be satisfied that the accused understands the nature of the charges, the consequences of the proceedings, and the practicality of waiving the right to counsel. Id. (citations omitted). The Benchbook for U.S. District Court Judges, published by the Federal Judicial Center, provides a guide for questions the judge can ask to convey the disadvantages the defendant will likely suffer if he proceeds pro se which is reproduced in the margin. We do not suggest that a district court must follow a script. This court “require[s] no sacrosanct litany for warning defendants against waiving the right to counsel,” United States v. Davis, 269 F.3d 514, 519 (5th Cir.2001), and has approved warnings much less thorough than the guidelines presented in the bench book. For example, in United States v. Joseph, Joseph, like Jones, expressed a desire to proceed pro se due to lack of confidence in his counsel. Id. at 590. Also similar to this case, the court recommended several times that Joseph allow counsel to represent him" }, { "docid": "23339965", "title": "", "text": "F.2d at 30; United States v. Bernloehr, 833 F.2d 749, 751-52 (8th Cir.1987); United States v. Janoe, 720 F.2d 1156 (10th Cir.1983), cert. denied, 465 U.S. 1036, 104 S.Ct. 1310, 79 L.Ed.2d 707 (1984); see also Wright v. Estelle, 572 F.2d at 1073 (Thornberry, J., concurring) (5 of 14 judges). By far the majority of states that have considered the question also have held that courts have no duty sua sponte to advise the defendant of his right to testify and establish on the record that this right was waived knowingly and intelligently. Waiver of this right is presumed from the defendant’s failure to testify or notify the court of his desire to do so. E.g., State v. Allie, 147 Ariz. 320, 710 P.2d 430, 437-38 (1985); People v. Longwith, 125 Cal.App.3d 400, 178 Cal.Rptr. 136 (1981); Torres-Arboledo v. State, 524 So.2d 403, 409-11 (Fla.1988); Aragon v. State, 114 Idaho 758, 760 P.2d 1174, 1179 (1988); State v. McKinney, 221 Kan. 691, 561 P.2d 432 (1977); Commonwealth v. Waters, 399 Mass. 708, 506 N.E.2d 859, 864-65 (1987); Commonwealth v. Guess, 23 Mass.App. 208, 500 N.E.2d 825, 827-28 (1986); People v. Simmons, 140 Mich.App. 681, 364 N.W.2d 783 (1985); In re Mecier, 143 Vt. 23, 460 A.2d 472 (Vt.1983); State v. Albright, 96 Wis.2d 122, 291 N.W.2d 487 (1980). Contra, People v. Curtis, 681 P.2d 504 (Colo.1984); Culberson v. State, 412 So.2d 1184, 1186-87 (Miss.1982) (suggested but possibly not required); State v. Neuman, 371 S.E.2d 77 (W.Va.1988). At least seven reasons have been given for this conclusion: First, the right to testify is seen as the kind of right that must be asserted in order to be recognized. See Siciliano, 834 F.2d at 30, quoting Ives, 504 F.2d at 939-40. Second, it is important that the decision to testify be made at the time of trial and that the failure to testify not be raised as an afterthought after conviction. See Mecier, 460 A.2d at 475. Third, by advising the defendant of his right to testify, the court could influence the defendant to waive his right not to testify, “thus threatening" }, { "docid": "5546293", "title": "", "text": "demand must be made. We hold that Meeks did not make a proper demand to proceed pro se at his trial. Meeks asserts that at his trial, before a different judge from the one who presided over his preliminary hearing, he again asserted his right to proceed without counsel but was denied the right. Meeks contends that the standard used in California to pass on demands to proceed pro se is constitutionally invalid because it requires that the defendant possess some actual ability to present a defense. We do not reach this question, for we hold that Meeks did not make an “unequivocal” demand to represent himself. United States ex rel. Anderson v. Fay, 394 F.2d 109 (2d Cir. 1968); United States ex rel. Maldonado v. Denno, 348 F.2d 12, 16 n.2 (2d Cir. 1965), cert. denied, Di Blasi v. McMann, 384 U.S. 1007, 86 S.Ct. 1950, 16 L.Ed.2d 1020 (1966); cf. Rotolo v. United States, 404 F.2d 316 (5th Cir. 1968). The reason an “unequivocal” demand is required is that, otherwise, “convicted criminals would be given a ready tool with which to upset adverse verdicts after trials at which they had been represented by counsel.” United States ex rel. Maldonado v. Denno, 348 F.2d at 15-16. The trial judge is confronted with a conflict between two rights. He should not be presented with an impossible situation. See People v. Sharp, 7 Cal.3d 448, 103 Cal.Rptr. 233, 499 P.2d 489, 498 n.12 (1972). Meeks’ demand in this ease was certainly not “unequivocal.” He made no demand to proceed without counsel at the beginning of his trial. It is during the afternoon session that there appear in the record three statements which could be construed as demands by Meeks to proceed pro se.: “THE DEFENDANT: Your Honor, I have a motion before me. I got a hernia. Motion is whether or not I can proceed on pro per status, and my motion is based on points and authorities if you’d like to hear them. “THE COURT: Why do you want to proceed in pro per ? “THE DEFENDANT: Well, there is" }, { "docid": "12803722", "title": "", "text": "a constitutional right to pro se representation and we decline to follow them. . A second basis is the need for confidence in the attorney-client relation. United States v. Dougherty, 154 U.S.App.D.C. 76, 473 F.2d 1113, 1128 (1972) ; United States ex rel. Maldonado v. Denno, 348 F.2d 12, 15 (2d Cir. 1965). See note 15 infra. . The Commentary to Standard C.3 (“Standby counsel for defendant representing himself”) includes this language (p. 12) : “Even if the defendant is permitted to represent himself at the trial, in all but the simj)lest trials — and perhaps even in those if resources permit — it will be prudent for the trial judge to arrange for standby counsel to be present at all times. . . . [T]he presence of such counsel . . . may also serve to protect the rights of the accused, a matter of public interest even if the accused has rejected professional assistance. The experience of those judges who have appointed standby counsel is that the pro se defendant often discovers, early in the trial, the value of counsel and will consent to being represented by the standby.” . We are not alone in finding that a constitutional right to proceed pro se and a constitutional right to counsel are incompatible. The Ninth Circuit, which recognizes both rights, recently acknowledged that “it is manifest that any such two constitutional rights cannot actively co-exist.” United States v. Dujanovich, 486 F.2d 182, 185 (1973). Because of the basic conflict between the two rights, especially given the standard for waiver of counsel, VonMoltke v. Gillies, 332 U.S. 708, 723-724, 68 S.Ct. 316, 92 L.Ed. 309 (1948), both the Second and Ninth Circuits have devised guidelines for trial judges who would otherwise be put in the position of laying “an appeal or a collateral attack by either a denial or a granting of the request” to proceed pro se. Id. 486 F.2d at 184. See also Meeks v. Craven, 482 F.2d 465, 467 (9th Cir. 1973) ; United States ex rel. Maldonado v. Denno, 348 F.2d 12, 15-16 (2d Cir. 1965)." }, { "docid": "23339956", "title": "", "text": "(1972); State v. Carter, 200 Conn. 607, 513 A.2d 47, 50-51 (1986); Torres-Arboledo v. State, 524 So.2d 403 at 411 (Fla.1988); Russell v. State, 270 Ind. 55, 383 N.E.2d 309, 312-13 (1978); State v. Stinson, 424 A.2d 327 (Me.1981); State v. McCafferty, 587 S.W.2d 611, 612 (Mo.App.1979); People v. McIntyre, 36 N.Y.2d 10, 18, 364 N.Y.S.2d 837, 844, 324 N.E.2d 322 (1974), applied in People v. Burton, 106 A.D.2d 652, 482 N.Y.S.2d 909, 910-11 (App.Div.1984); Felts v. State, 588 P.2d 572, 575-76 (Okla.Cr.1978); State v. Garcia, 92 Wash.2d 647, 600 P.2d 1010, 1014-15 (1979); State v. Sheppard, 310 S.E.2d 173, 187 (W.Va.1983); Williams v. State, 655 P.2d 273, 274-76 (Wyo.1982). Among the reasons given are that (1) the exercise of the right of self-representation is actually to the detriment of the defendant as well as to the orderly administration of justice (as could also be said of the right to testify); (2) the right to self-representation is unlike the right to counsel, which itself protects other fundamental rights; (3) a defendant with counsel has not been denied a fair trial or his due process rights; (4) such advice from the court might suggest that the average defendant can represent himself or does not need the assistance of an attorney (as also could be said of the right to testify); and (5) unlike the right to counsel, this right is not a critical aspect of the right to a fair trial but rather is linked to the defendant’s right to free choice (as also could be said of the right to testify). The presumption of waiver inferred from conduct and a silent record has been decisively recognized in the special case of a pro se defendant: “Once a pro se defendant invites or agrees to any substantial participation by counsel, subsequent appearances by counsel must be presumed to be with the defendant’s acquiescence, at least until the defendant expressly and unambiguously renews his request that standby counsel be silenced.” McKaskle v. Wiggins, 465 U.S. 168, 183, 104 S.Ct. 944, 953, 79 L.Ed.2d 122 (1984). The same rule has applicability where a" } ]

[ { "docid": "22907461", "title": "", "text": "validity of the attempt to remove. See Excelsior Wooden Pipe Co. v. Pacific Bridge Co., 185 U. S. 282, 284, 285, and cases cited. The former question was decided to be subject to review on error by this court in Shepard v. Adams, 168 U. S. 618. That case has not been overruled. The latter question was held also proper to be brought here, in Powers v. Chesapeake & Ohio Ry., 169 U. S. 92. The jurisdiction of this court must be sustained. Coming then to the motion to remand it is said that the petition to remove was filed too late, because the time for answer had expired. It would be a strong interpretation of the New York Code of Civil Procedure, § 418, to say that it requires an answer within twenty days after the summons when no complaint or even notice stating the sum of money for which judgment will be taken, § 419, has been served. See Dancel v. Goodyear Shoe Machinery Co., 106 Fed. Rep. 551. But it is a sufficient reply to the motion and to the objection to the removal that the petition was filed as soon as the case became a removable one. Powers v. Chesapeake & Ohio Ry., 169 U. S. 92; Kansas City Suburban Belt Ry. v. Herman, 187 U. S. 63, 67, 68. The suggestion that the defendant was estopped by the fact that it followed up its motion to stay in the state court in. accordance with its notice, on October 24, when the right to remove had been made to appear the day before, seems to us too technical, supposing it to be open here. Indeed it was a proper preliminary in one respect. The order made on that motion was “ that the defendant be relieved from any default in appearing herein, and that all proceedings on the part of the plaintiff be stayed, pending said appeal and until ten days after the decision thereof, except” an order for the examination of the plaintiff. It did not estop the defendant from insisting on a. substantial right" } ]

[ { "docid": "18805175", "title": "", "text": "against the wish of the plaintiff, the case could not be removed.” Weems v. Louis Dreyfus Corp., 380 F.2d 545, 546 (5th Cir.1967), quoting Note, The Effect of Section 1446(b) on the Non-Resident’s Right to Remove, 115 U.Pa.L.Rev. 264, 267 (1966). See Great No. Ry. Co. v. Alexander, 246 U.S. 276, 38 S.Ct. 237, 62 L.Ed. 713 (1918); American Car & Foundry Co. v. Kettelhake, 236 U.S. 311, 35 S.Ct. 355, 59 L.Ed. 594 (1915); Lathrop, Shea & Henwood Co. v. Interior Constr. & Improvement Co., 215 U.S. 246, 30 S.Ct. 76, 54 L.Ed. 177 (1909); Kansas City Suburban Belt Ry. v. Herman, 187 U.S. 63, 23 S.Ct. 24, 47 L.Ed. 76 (1902); Whitcomb v. Smithson, 175 U.S. 635, 20 S.Ct. 248, 44 L.Ed. 303 (1900). The proper time for removal is governed by 28 U.S.C. § 1446(b), which was amended to substantially its present form in 1949. Act of May 24, 1949, 63 Stat. 101, ch. 139, § 83. The statute reads, in pertinent part, as follows: 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. Thus, the literal language of the statute does not appear to support the plaintiff's position. However, section 1446(b), as amended in 1949, has been widely interpreted as preserving the voluntary-involuntary rule. See 2 U.S.Code Cong.Serv. 1268, 81st Cong., 1st Sess. (1949). See also Weems, 380 F.2d at 548-49; 14A Wright, Miller & Cooper, Federal Practice and Procedure: Jurisdiction and Related Matters 2d § 3723 at 317-18 (1985); 1A Moore’s Federal Practice para. 0.168 [3.-5-6] at 597 (1987). Even though diversity was not created by a voluntary act of the plaintiff, Humana argues that the voluntary-involuntary rule does not mandate a remand in this case because the underlying justification for the rule is not present here. Humana contends that the only reason behind" }, { "docid": "22844280", "title": "", "text": "AAA was a nominal party, that defect was cured by the amended petition, notwithstanding the fact that the amendment was filed more than thirty days after Aireo received a copy of the state court complaint. Removal must be effected within thirty days after a defendant receives a copy of the state court complaint, or is served, whichever occurs first. 28 U.S.C. § 1446(b). While the time limitation imposed by § 1446(b) is not jurisdictional, Ryan v. State Board of Elections of the State of Illinois, supra, 661 F.2d at 1134; Perrin v. Walker, 385 F.Supp. 945, 947 (E.D. Ill.1974); see Ayers v. Watson, 113 U.S. 594, 598, 5 S.Ct. 641, 642, 28 L.Ed. 1093 (1885), it is a strictly applied rule of procedure and untimeliness is a ground for remand so long as the timeliness defect has not been waived. A removal petition may be amended freely within the thirty day period. Moreover, even after the thirty days have elapsed, amendments to correct “defective allegations of jurisdiction” are permitted under 28 U.S.C. § 1653. E.g., Barrow Development Co. v. Fulton Insurance Co., 418 F.2d 316, 317 (9th Cir. 1969). See Willingham v. Morgan, 395 U.S. 402, 407 n.3, 89 S.Ct. 1813, 1816 n.3, 23 L.Ed.2d 396 (1969). See generally Young Spring & Wire Corp. v. American Guarantee and Liability Insurance Co., 220 F.Supp. 222, 228-29 n.2 (W.D. Mo.1963). In this case, as in many others since the adoption of the removal statute over a century ago, “[t]he right to remove existed, but the petition for removal was defective. If it had been sufficient there would have been no .need of amendment. The question is whether it was so defective as to be incurable.” Kinney v. Columbia Savings & Loan Association, 191 U.S. 78,80, 24 S.Ct. 30, 31, 48 L.Ed. 103 (1903). In determining whether a removal petition is incurably defective, the court not only examines the specific allegations of the petition itself, but also must scrutinize the record of the state court proceedings. Powers v. Chesapeake & Ohio Railway Co., 169 U.S. 92, 101, 18 S.Ct. 264, 267, 42 L.Ed." }, { "docid": "11762215", "title": "", "text": "the joinder of Wallace as a defendant was fraudulent. The case was submitted to a jury in the Circuit Court. At the conclusion of the evidence the trial judge directed a verdict in favor of Wallace and entered a judgment dismissing the complaint as to him. The claim against the Railroad was submitted to the jury, which failed to agree and was discharged. Promptly thereafter the Railroad filed a petition for removal of the case to this Court on the basis of 28 U.S.C.A. § 1446 (b) taking the position that the case became removable when Wallace went out of the case and when the jury failed to agree as to the liability of the corporate defendant. Plaintiff has moved to remand. It is established that a case not removable originally due to the presence of a resident defendant may become removable if the party whose presence defeated removability goes out of the case as a result of a voluntary discontinuance of the case as to him by the plaintiff. However, it seems to be equally well settled that an involuntary discontinuance as to a resident defendant, as by order of Court or directed verdict, does not make the case against the remaining nonresident defendant removable. Great Northern R. Co. v. Alexander, 246 U.S. 276, 38 S.Ct. 237, 62 L.Ed. 713; American Car & Foundry Co. v. Kettlehake, 236 U.S. 311, 35 S.Ct. 355, 59 L.Ed. 594; Lathrop, Shea & Henwood Co. v. Interior Construction & Imp. Co., 215 U.S. 246, 30 S.Ct. 76, 54 L.Ed. 177; Kansas City Suburban Belt Ry. Co. v. Herman, 187 U.S. 63, 23 S.Ct. 24, 47 L.Ed. 76; see also Judge Miller’s detailed discussion of the problem in Stone v. Foster, W.D.Ark., 163 F.Supp. 298, in which the ruling cases are collected and analyzed. The Supreme Court cases cited above were decided prior to the 1948 revision of the Judicial Code which for the first time spelled out in the removal statute a defendant’s right to remove an originally nonremovable case should the case become removable at a later stage of the proceedings. In" }, { "docid": "18805174", "title": "", "text": "his own physician. The district court further noted that, heretofore, the corporate negligence doctrine has not been explicitly adopted in Florida and declined to apply the doctrine to this case. This appeal followed the denial of the plaintiff’s motion for a rehearing. Before us, the plaintiff argues (1) that the case was not properly removed from state court to the federal forum and (2) that, if the case was removable, Florida law recognizes the corporate negligence doctrine, under which a hospital could be held directly liable for its failure to properly investigate a medically incompetent applicant for staff privileges. See generally Annot. 51 ALR 3d 981 (1973). In challenging the district court’s refusal to remand the case to the state court, the plaintiff relies upon the longstanding, judicially created “voluntary-involuntary” rule. This is a rule developed in diversity cases “that if the resident defendant was dismissed from the case by the voluntary act of the plaintiff, the case became removable, but if the dismissal was the result of either the defendant’s or the court’s action against the wish of the plaintiff, the case could not be removed.” Weems v. Louis Dreyfus Corp., 380 F.2d 545, 546 (5th Cir.1967), quoting Note, The Effect of Section 1446(b) on the Non-Resident’s Right to Remove, 115 U.Pa.L.Rev. 264, 267 (1966). See Great No. Ry. Co. v. Alexander, 246 U.S. 276, 38 S.Ct. 237, 62 L.Ed. 713 (1918); American Car & Foundry Co. v. Kettelhake, 236 U.S. 311, 35 S.Ct. 355, 59 L.Ed. 594 (1915); Lathrop, Shea & Henwood Co. v. Interior Constr. & Improvement Co., 215 U.S. 246, 30 S.Ct. 76, 54 L.Ed. 177 (1909); Kansas City Suburban Belt Ry. v. Herman, 187 U.S. 63, 23 S.Ct. 24, 47 L.Ed. 76 (1902); Whitcomb v. Smithson, 175 U.S. 635, 20 S.Ct. 248, 44 L.Ed. 303 (1900). The proper time for removal is governed by 28 U.S.C. § 1446(b), which was amended to substantially its present form in 1949. Act of May 24, 1949, 63 Stat. 101, ch. 139, § 83. The statute reads, in pertinent part, as follows: If the case stated by the initial" }, { "docid": "11094300", "title": "", "text": "cases since. Canal, etc., R. R. Co. v. Hart, 114 U.S. 654, 5 S.Ct. 1127, 29 L.Ed. 226; Martin’s Administrator v. Baltimore & Ohio R. R. Co., 151 U.S. 673, 14 S.Ct. 533, 38 L.Ed. 311; Powers v. Chesapeake & Ohio R. R. Company, 169 U.S. 92, 93, 18 S.Ct. 264, 266, 42 L.Ed. 673. Mr. Justice Gray in the last case cited said: “The existence of diverse citizenship, or other equivalent condition of jurisdiction, is fundamental. The want of it will be taken notice of by the court in its own motion, and cannot be waived by either party. Mansfield, C. & L. M. R. Co. v. Swan, 111 U.S. 379, 4 S.Ct. 510 [28 L.Ed. 462], But the time of filing a petition for removal is not essential to the jurisdiction. The provision on that subject is, in the words of Mr. Justice Bradley, ‘but modal and formal,’ and a failure to comply with it may be the subject of waiver or estoppel. * * * “As the time within which a removal must be applied for is not jurisdictional, but modal and formal (Ayers v. Watson, 113 U.S. 594, 598, 5 S.Ct. 641 [28 L.Ed. 1093]), it may, though obligatory to a certain extent, be waived.” A number of the inferior courts mostly before the case of Ayers v. Watson, 113 U.S. 594, 5 S.Ct. 641, 28 L.Ed. 1093, held that the time for filing the petition for removal from the state to the federal court could not be extended by stipulation of the parties, but this position does not seem to be in harmony with!-the declarations of the Supreme Court. These declarations led to the change of the position in the Southern District of New York. In the case of Anthony, Inc., v. National Broadcasting Co., Inc. (D.C.) 8 F.Supp. 346, the court said: “The extensions of time to answer which were signed by the plaintiff’s attorney extended also the time within which the case might be removed. There was a time when the rule in this district was otherwise. Schipper v. Consumer Cordage Co. (C.C.)" }, { "docid": "16273529", "title": "", "text": "92, 18 S.Ct. 264, 42 L.Ed. 673 (1898). There the plaintiff voluntarily dismissed the resident defendants after the time within which the petition for removal could be filed had elapsed. The nonresident defendant petitioned for removal. The Court held that a nonresident defendant can remove as soon “as the action assumes the shape of a removable case in the court in which it was brought.” 169 U.S. at 101, 18 S.Ct. at 267. The cáse had first become removable when the plaintiff discontinued his action against the resident defendant. Although the Court in Powers, supra, did not emphasize that the dismissal of the resident defendant resulted from a voluntary act of the plaintiff, subsequent cases seized upon that element and established the voluntary-involuntary rule. See Whitcomb v. Smithson, 175 U.S. 635, 20 S.Ct. 248, 44 L.Ed. 303 (1900); Kansas City Suburban Belt Ry. Co. v. Herman, 187 U.S. 63, 23 S.Ct. 24, 47 L.Ed. 76 (1902); Fritzlen v. Boatmen’s Bank, 212 U.S. 364, 29 S.Ct. 366, 53 L.Ed. 551 (1909); Lathrop, Shea & Henwood Co. v. Interior Constr. & Improvement Co., 215 U.S. 246, 30 S.Ct. 76, 54 L.Ed. 177 (1909). The rule was solidified in American Car & Foundry Co. v. Kettelhake, 236 U.S. 311, 35 S.Ct. 355, 59 L.Ed. 594 (1915) and Great N. Ry. Co. v. Alexander, supra, in which the Court stated that an action nonremovable when commenced can be converted into a removable action only by the voluntary act of the plaintiff. In 1949, 28 U.S.C. Section 1446(b) was amended “so that for the first time a statutory provision provided for removal of cases which were not removable on the initial pleading.” 380 F.2d at 547. The majority of cases that has considered the voluntary-involuntary rule in light of the amendment has held that the amendment did not abolish the rule. Saylor v. General Motors Corp., 416 F.Supp. 1173 (E.D.Ky.1976). See 1A Moore’s, supra, 0.168[3.-5]. The legislative history of the amendment evidences the validity of these cases. In an explanatory note of the House Report it is stated: The second paragraph of the amendment to" }, { "docid": "4222386", "title": "", "text": "L.Ed. 455; Akers v. Akers, 117 U.S. 197, 6 S.Ct. 669, 29 L.Ed. 888; Kellam v. Keith, 144 U.S. 568, 12 S.Ct. 922, 36 L.Ed. 544; Jackson v. Allen, 132 U.S. 27, 10 S.Ct. 9, 33 L.Ed. 249; Young v. Parker, 132 U.S. 267, 10 S.Ct. 75, 33 L.Ed. 352; Stevens v. Nichols, 130 U.S. 230, 9 S.Ct. 518, 32 L.Ed. 914; Kraut v. Worthington Pump & Machinery Corp., D.C.N.Y., 1 F.Supp. 307. Thus, though defendant, Tatum, was not, on March 3, 1955, when the removal petition was filed, a citizen of Missouri, and had not been since August 8, 1953, the admitted fact is that he was a citizen of Missouri at the time of the institution of this suit, and, therefore, under the cases cited, diversity of citizenship does not exist, unless the plaintiff by some affirmative act of his has, meanwhile, abandoned or discontinued the action as to the defendant, Tatum, and that matter presents the next, and only remaining, question for consideration. It is quite well-settled that if the plaintiff voluntarily dismisses, discontinues, or in any way abandons, the action as to the resident joint defendant, the cause then becomes removable, and may, upon prompt action, be removed by the nonresident defendants who have been served. Section 1446, Title 28 U.S. C. A.; Houpburg v. Kansas City Stock Yards Company, D.C.Mo.1953, 114 F. Supp. 659, 660; Maxwell v. De Long, D. C.Mo., 107 F.Supp. 166; Southern Pacific Co. v. Haight, 9 Cir., 126 F.2d 900, 903; Powers v. Chesapeake, etc., R. Co., 169 U.S. 92, 18 S.Ct. 264, 42 L.Ed. 673; Yulee v. Vose, 99 U.S. 539, 25 L.Ed. 355; Fidler v. Western Coal & Mining Co., D.C.Ark., 33 F.2d 158; Hane v. Mid-Continent Petroleum Corp., D.C.Okl., 47 F.2d 244, 247; Fogarty v. Southern Pacific Co., C.C., 121 F. 941. But what has this plaintiff done that can be said to amount to a voluntary dismissal, abandonment, or discontinuance, of the action as to the defendant, Tatum? All that petitioning defendants point to is that, since the non est return, made January 28, 1953, on the" }, { "docid": "728204", "title": "", "text": "Construing Haight one court observed that the case established that a timely petition for removal may be filed by defendant “immediately after fictitious defendants are no longer part of the action and can[,] therefore[,] no longer destroy the required diversity”. Preaseau v. Prudential Insurance Co. of America, 591 F.2d 74, 77 (9th Cir. 1979). Cf. Percherski v. General Motors Corp., 636 F.2d 1156, 1160 (8th Cir. 1981) (“mere failure to serve a defendant who would defeat diversity jurisdiction does not permit a court to ignore that defendant in determining the propriety of removal”). Other courts agree with the Ninth Circuit’s conclusions as articulated in Haight and Preaseau. Holloway v. Pacific Indemnity Co., Inc., 422 F.Supp. 1036, 1041 (E.D. Mich.1976), held that so long as a cause of action has been stated against an unknown resident defendant, the case may not be removed “until plaintiff dismisses the action against that defendant, or actually commences trial without having served him”. See also Self v. General Motors Corp., 588 F.2d 655, 659 (9th Cir. 1978); Fidelity & Casualty Co. of New York v. Safeway Steel Scaffolds Co., 191 F.Supp. 220, 222 (N.D.Ala.1961). Where, however, the unnamed defendants are “ineffectual” and “no cause of action has been stated against them”, some courts “disregard” them in considering whether diversity exists. Scurlock v. American President Lines, 162 F.Supp. 78, 81 (N.D.Cal.1958). Accord, George v. Al-Saud, 478 F.Supp. 773, 774 (N.D.Cal.1979). Contra, Preaseau v. Prudential Insurance Co. of America, 591 F.2d at 77-78, n.2 (the “degree of identification of the Does in the complaint” should not determine whether the case is removable). Regardless, in the case at bar, “real” claims have, indeed, been leveled at the unknown defendants. Plaintiff’s claim of prejudice by removal on the eve of trial is insufficient to compel remand since an action may be properly remanded only for the specific reasons delineated in the controlling statute. Thermtron Products, Inc. v. Hermsdorfer, 423 U.S. 336, 351, 96 S.Ct. 584, 593, 46 L.Ed.2d 542 (1976). Importantly, plaintiff’s pleading initially created the questionable situation of whether diversity existed. Hence, he should not profit from the" }, { "docid": "22269792", "title": "", "text": "case had become removable for the first time when the plaintiff discontinued his action against the individual resident defendants. Although the court in Powers did not emphasize that the resident defendant’s dismissal resulted from an act voluntary to the plaintiff, that aspect was seized upon in Whitcomb v. Smithson, 175 U.S. 635, 20 S.Ct. 248, 44 L.Ed. 303 (1900), and applied to firmly establish the voluntary-involuntary rule. In Whitcomb, the elimination from the case of the resident defendant was accomplished not by the plaintiff’s voluntary act but rather by a directed verdict. The Court held that since the resident defendant was eliminated from the case without the plaintiff’s consent, the case did not become removable. Accord, Kansas City Suburban Belt Ry. Co. v. Herman, 187 U.S. 63, 23 S.Ct. 24, 47 L.Ed. 76 (1902). Later cases agreed that the crucial point on which Powers had turned was the vol-untariness of the plaintiff’s act, and the rule that an action nonremovable when commenced may become removable thereafter only by the voluntary act of the plaintiff was solidified. See Great No. Ry. Co. v. Alexander, 246 U.S. 276, 281, 38 S.Ct. 237, 62 L.Ed. 713 (1918); American Car & Foundry Co. v. Kettelhake, 236 U.S. 311, 316, 35 S.Ct. 355, 59 L.Ed. 594 (1915). The rule was applied with consistent results until 1949 when 28 U.S.C. Sec. 1446(b) was amended so that for the first time a statutory provision provided for removal of cases which were not removable on the initial pleading. The amendment reads: “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.” The effect of this amendment has been variously interpreted. Dreyfus would have us hold that the amendment wrought a drastic change in the law. Dreyfus argues that the amendment’s reference to an order from which it first" }, { "docid": "11762216", "title": "", "text": "equally well settled that an involuntary discontinuance as to a resident defendant, as by order of Court or directed verdict, does not make the case against the remaining nonresident defendant removable. Great Northern R. Co. v. Alexander, 246 U.S. 276, 38 S.Ct. 237, 62 L.Ed. 713; American Car & Foundry Co. v. Kettlehake, 236 U.S. 311, 35 S.Ct. 355, 59 L.Ed. 594; Lathrop, Shea & Henwood Co. v. Interior Construction & Imp. Co., 215 U.S. 246, 30 S.Ct. 76, 54 L.Ed. 177; Kansas City Suburban Belt Ry. Co. v. Herman, 187 U.S. 63, 23 S.Ct. 24, 47 L.Ed. 76; see also Judge Miller’s detailed discussion of the problem in Stone v. Foster, W.D.Ark., 163 F.Supp. 298, in which the ruling cases are collected and analyzed. The Supreme Court cases cited above were decided prior to the 1948 revision of the Judicial Code which for the first time spelled out in the removal statute a defendant’s right to remove an originally nonremovable case should the case become removable at a later stage of the proceedings. In the recent case of Weems v. Lewis Dreyfus Corp., 5 Cir., 380 F.2d 545, it was held that the 1948 revision of the Code did not change existing law; that was also the view taken in Stone v. Foster, Supra, which is cited in Weems. A contrary result was reached in Lyon v. Illinois Central Ry. Co., S.D. Miss., 228 F.Supp. 810. In that case plaintiff sued the railroad and a resident defendant. The case was tried to a jury, and there was a directed verdict in favor of the resident defendant. Later, the railroad removed, arid it was held that the ease was removable under section 1446 (b). The same situation was presented in Weems, supra, and the same result was reached at the District Court level by the same District Judge. There was an appeal from his ruling, and the decision was reversed. In the course of its opinion the Court of Appeals expressly disapproved the result reached in the Lyon case, supra. In this case the defendant Wallace did not go out" }, { "docid": "22868260", "title": "", "text": "of his burden by any formal procedure. If his allegations of jurisdictional facts are challenged by his adversary in any appropriate manner, he must support them by competent proof.” Appellees here, defendants below, did not make such affirmative showing at the time they sought removal to federal court as is specifically required by Congress with reference to jurisdictional amount. We cannot construe the complaint’s words “in excess of $5,000.00” as “exceed(ing) the sum or value of $10,000 * * * ” in the words of 28 U.S.C. 1332, which proscription is mandatory as a limitation on federal jurisdiction in diversity cases. “ * * * the sum claimed by the plaintiff controls if the claim is apparently made in good faith.” St. Paul Mercury Indemnity Co. v. Red Cab Company, 1938, 303 U.S. 283, at page 288, 58 S.Ct. 586, at page 590, 82 L.Ed. 845. See also 2 F.R.D. 388, at page 395. Although Great Northern Railway Company v. Alexander, 246 U.S. 276, at page 281, 38 S.Ct. 237, at page 239, 62 L.Ed. 713, involved removal on federal question grounds the principle enunciated there is applicable here. “It is also settled that a case * * non-removable on the complaint, when commenced, cannot be converted into a removable one by evidence of the defendant or by an order of the court upon any issue tried upon the merits, but that such conversion can only be accomplished by the voluntary amendment of his pleadings by the plaintiff * * *. Kansas City, etc. Ry. Co. v. Herman, 187 U.S. 63 [23 S.Ct. 24, 47 L.Ed. 76]; Alabama Great Southern Ry. Co. v. Thompson, 200 U.S. 206 [26 S.Ct. 161, 50 L.Ed. 441, 4 Ann.Cas. 1147]; Lathrop, Shea & Henwood Co. v. Interior Construction Co., 215 U.S. 246 [30 S.Ct. 76, 54 L.Ed. 177]; American Car & Foundry Co. v. Ket-telhake, 236 U.S. 311 [35 S.Ct. 355, 59 L.Ed. 594].” Judge Yankwich, in Some Jurisdictional Pitfalls in Diversity Cases, 2 F.R.D. 388, states at page 394: “ * * * I desire to emphasize the fact, which is overlooked by" }, { "docid": "13062741", "title": "", "text": "cases. See American Car & Foundry Co. v. Kettelhake, 236 U.S. 311, 314-16, 35 S.Ct. 355, 59 L.Ed. 594 (1915); Lathrop, Shea & Henwood Co. v. Interior Constr. & Improvement Co., 215 U.S. 246, 30 S.Ct. 76, 54 L.Ed. 177 (1909); Kansas City Suburban Belt Ry. v. Herman, 187 U.S. 63, 69-70, 23 S.Ct. 24, 47 L.Ed. 76 (1902); Southern Pac. Co. v. Haight, 126 F.2d 900, 903-04 (9th Cir.), cert. denied, 317 U.S. 676, 63 S.Ct. 154, 87 L.Ed. 542 (1942); Weems v. Louis Dreyfus Corp., 380 F.2d 545, 547 (5th Cir. 1967); 1A Moore’s Federal Practice ¶ 0.168[3. — 5], at 487 (2d ed. 1974). See generally Note, Removal of Suits to Federal Courts After the Statutory Deadline: An Old Formula Re-examined, 60 Harv.L.Rev. 959 (1947). It has been suggested that the rule promotes judicial efficiency by “prevent[ing] removal of those cases in which the issue of the resident defendant’s dismissal has not been finally determined in the state courts.” Weems, 380 F.2d at 546. See Saylor, 416 F.Supp. at 1175; Ennis v. Queen Ins. Co., 364 F.Supp. 964, 966 (W.D.Tenn.1973). If the finality of state court proceedings were the basis for the rule, it would seem that once the appellate process were ended in the state courts, removal would be possible. The Supreme Court, however, apparently does not rely on this basis as evidenced by Lathrop, Shea & Co., 215 U.S. at 249-51, 30 S.Ct. 76, where the voluntary-involuntary rule was invoked to prohibit removal even though the state appellate process was complete. Common Origins of Both Rules We must conclude that the voluntary-involuntary rule is based on a formalistic approach to pleadings similar to the Mottley line of cases and applies to the diversity requirement of 28 U.S.C. § 1332 in the same fashion that Mottley applies to the federal question requirement of 28 U.S.C. § 1331. In Alabama Great Southern Ry. v. Thompson, 200 U.S. 206, 26 S.Ct. 161, 50 L.Ed. 441 (1906), a diversity case, the Supreme Court read Powers and Whitcomb to mean that “the right to remove depend[s] upon the case made" }, { "docid": "22269791", "title": "", "text": "action in the state court. The plaintiff appeals. The rule that a case nonremovable on the initial pleadings could become removable only pursuant to a voluntary act of the plaintiff originated in two early Supreme Court cases. The first was Powers v. Chesapeake & O. Ry., 169 U.S. 92, 18 S.Ct. 264, 42 L.Ed. 673 (1898), where an action for personal injuries was filed in a state court against a nonresident railroad and several of its resident employees. The absence of diversity of citizenship prevented removal on the pleadings. After the time period within which the petition for removal could be filed had elapsed, the plaintiff voluntarily dismissed the resident defendants. The question before the Court was whether a case, nonremovable when commenced and not removed within the time provided, yet could become removable. The Court held that a nonresident defendant can remove as soon “as the action assumes the shape of a removable case in the court in which it was brought,” 169 U.S. at 101, 18 S.Ct. at 267, and concluded that the case had become removable for the first time when the plaintiff discontinued his action against the individual resident defendants. Although the court in Powers did not emphasize that the resident defendant’s dismissal resulted from an act voluntary to the plaintiff, that aspect was seized upon in Whitcomb v. Smithson, 175 U.S. 635, 20 S.Ct. 248, 44 L.Ed. 303 (1900), and applied to firmly establish the voluntary-involuntary rule. In Whitcomb, the elimination from the case of the resident defendant was accomplished not by the plaintiff’s voluntary act but rather by a directed verdict. The Court held that since the resident defendant was eliminated from the case without the plaintiff’s consent, the case did not become removable. Accord, Kansas City Suburban Belt Ry. Co. v. Herman, 187 U.S. 63, 23 S.Ct. 24, 47 L.Ed. 76 (1902). Later cases agreed that the crucial point on which Powers had turned was the vol-untariness of the plaintiff’s act, and the rule that an action nonremovable when commenced may become removable thereafter only by the voluntary act of the plaintiff was" }, { "docid": "22463619", "title": "", "text": "suits. Abernathy et al. v. Patterson, 5 Cir., 1961, 295 F.2d 452. The question before us is whether ap-pellee, The New York Times Company, could remove the suits of appellants to the Federal Court. The statutory period within which to remove had long since expired. Title 28, § 1446(b). Removal was sought under the doctrine of fraudulent joinder of the resident defendants. And, of course, the merits of the case including whether the advertisement was in fact libelous are not before us. Five libel suits arose from the advertisement. All were filed in the state court against appellee and the four individual defendants, except that in the Patterson suit a Georgia resident was also named as a party defendant. The plaintiffs in the respective suits were Patterson, the Governor of Alabama, three city commissioners of Montgomery, Messrs. Sullivan, James and Parks, and Sellers, a former city commissioner. The Sullivan and James cases have been tried. A $500,000 verdict for plaintiff against all of the defendants was rendered in the Sullivan case on November 3, 1960. A like verdict was rendered in the James case February 1, 1961. A motion for new trial filed by The Times was denied on March 17, 1961 and that case is now on appeal in the Supreme Court of Alabama. New York Times Co. v. Sullivan, 114 So.2d 25. A similar motion in the James case was pending when these cases were removed on April 13, 1961. The petition for removal was based on diversity of citizenship between the plaintiffs in each case and The New York Times Company, Title 28, § 1441(a). We are not concerned with removal of an action based on the constitution or laws of the United States, nor is there any claim of a separate or independent claim being joined. Title 28 U.S.C. A. § 1441 (b), (c). It was the position of The Times that it did not know of the fraudulent joinder until after the trials of the Sullivan and James cases in the state court when it became clear from uneontroverted evidence that the resident defendants had" }, { "docid": "16273528", "title": "", "text": "is shorter. 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. Generally, removability is determined by the pleadings filed by the plaintiff. American Fire & Cas. Co. v. Finn, 341 U.S. 6, 14, 71 S.Ct. 534, 540, 95 L.Ed. 702 (1951); Great N. Ry. Co. v. Alexander, 246 U.S. 276, 280-282, 38 S.Ct. 237, 239-240, 62 L.Ed. 713 (1918); Union Planters Nat’l. Bank of Memphis v. CBS, Inc., 557 F.2d 84, 89 (6th Cir. 1977). A case nonremovable on the initial pleadings can become removable only pursuant to a voluntary act of the plaintiff. Weems v. Louis Dreyfus Corp., 380 F.2d 545 (5th Cir. 1967). This rule developed from a line of cases originating with Powers v. Chesapeake & Ohio Ry. Co., 169 U.S. 92, 18 S.Ct. 264, 42 L.Ed. 673 (1898). There the plaintiff voluntarily dismissed the resident defendants after the time within which the petition for removal could be filed had elapsed. The nonresident defendant petitioned for removal. The Court held that a nonresident defendant can remove as soon “as the action assumes the shape of a removable case in the court in which it was brought.” 169 U.S. at 101, 18 S.Ct. at 267. The cáse had first become removable when the plaintiff discontinued his action against the resident defendant. Although the Court in Powers, supra, did not emphasize that the dismissal of the resident defendant resulted from a voluntary act of the plaintiff, subsequent cases seized upon that element and established the voluntary-involuntary rule. See Whitcomb v. Smithson, 175 U.S. 635, 20 S.Ct. 248, 44 L.Ed. 303 (1900); Kansas City Suburban Belt Ry. Co. v. Herman, 187 U.S. 63, 23 S.Ct. 24, 47 L.Ed. 76 (1902); Fritzlen v. Boatmen’s Bank, 212 U.S. 364, 29 S.Ct. 366, 53 L.Ed. 551 (1909); Lathrop, Shea & Henwood Co." }, { "docid": "23634197", "title": "", "text": "statement of Mr. Stevens, Sr., the plaintiffs were no longer in a position adverse to Ralph Cooke. Absent an opposition of interest between plaintiffs and the nondiverse defendant, there no longer remained any actual, substantial controversy between the two, and Ralph Cooke became aligned with the plaintiff for purposes of determining diversity of citizenship. The only defendant properly to be considered for deciding diversity, AMSC, is not a citizen of South Carolina, thus satisfying the requirements for removal based on diversity of citizenship under § 1441(b). Typically where removal is based on diversity of citizenship, diversity must exist at the time the action is instituted in state court and the time of removal. Wright, Miller & Cooper, Federal Practice and Procedure: Jurisdiction, § 3723,592. However, diversity is tested only at the time of removal if such removal is premised on the plaintiff’s voluntarily dropping the nondiverse defendant, although diversity did not exist among the parties at the commencement of the state court action. The court in Stamm v. American Telephone & Telegraph Co., 129 F.Supp. 719 (W.D.Mo.1955) summarized the rule upholding removal in such cases: It is quite well-settled that if the plaintiff voluntarily dismisses, discontinues, or in any way abandons, the action as to the resident joint defendant, the cause then becomes removable, and may, upon prompt action, be removed by the nonresident defendants who have been served. Section 1446, Title 28 U.S.C.A.; Houp burg v. Kansas City Stock Yarks Company, D.C.Mo.1953, 114 F.Supp. 659, 660; Maxwell v. De Long, D.C.Mo., 107 F.Supp. 166; Southern Pacific Co. v. Haight, 9 Cir., 126 F.2d 900, 903; Powers v. Chesapeake, etc., R. Co., 169 U.S. 92, 18 S.Ct. 264, 42 L.Ed. 673; Yulee v. Vose, 99 U.S. 539, 25 L.Ed. 355; Fidler v. Western Coal & Mining Co., D.C.Ark., 33 F.2d 158; Hane v. Mid-Continent Petroleum Corp., D.C.Okl., 47 F.2d 244, 247; Fogarty v. Southern Pacific Co., C.C., 121 F. 941. 129 F.Supp. 719, 721. See also, Kilpatrick v. Arrow Co., 425 F.Supp. 1378 (W.D.La.1977); First National Bank in Little Rock v. Johnson & Johnson, 455 F.Supp. 361 (E.D.Ark.1978). Regardless of" }, { "docid": "19060516", "title": "", "text": "to attorney’s fees. Walker v. Fireman’s Fund Ins. Co.,‘114 Or. 545, 234 P. 542. Here, after the six months had expired, plaintiff filed a so-called amended complaint adding to the amounts for which it sought recovery the sum of $750 alleged to be reasonable attorney’s fees. Upon' the theory that thus the amount in controversy had been increased above the jurisdictional minimum, the cause was removed to the court below. Motion to remand was denied. Appellant asserts that since the action at the time it was commenced was not one which could have been instituted in or removed to the federal court because the right to attorneys’ fees had not then accrued, the defendant had no right of removal at the time the so-called amended complaint was filed. As stated in Great Northern Ry. Co. v. Alexander, 246 U.S. 276, 280, 38 S.Ct. 237, 239, 62 L.Ed. 713: “ * * * that a case not removable when commenced may after-wards become removable is settled by Ayers v. Watson, 113 U.S. 594, 5 S.Ct. 641, 28 L.Ed. 1093; Martin’s Administrator v. Baltimore & Ohio R. Co., 151 U.S. 673, 688, 691, 14 S.Ct. 533, 38 L. Ed. 311; Powers v. Chesapeake & Ohio Ry. Co., 169 U.S. 92, 18 S.Ct. 264, 42 L. Ed. 673, and Fritzlen v. Boatmen’s Bank, 212 U.S. 364, 29 S.Ct. 366, 53 L. Ed. 551.” We think that the principles invoked to sustain the second petition for removal in Powers v. Chesapeake, etc., supra, require us to hold that the trial court properly denied the motion to remand. Cf. Sink v. Mutual Life Insurance Co. of New York, D.C., 56 F. Supp. 306, and Fleetwood v. Milwaukee Mechanics Ins. Co., D.C., 87 F.Supp. 353. It is contended by appellant that apart from all other considerations General is estopped to deny its obligation to defend the Perton action because initially it actually did undertake the defense of that action and did cause an answer to be verified and filed on behalf of Journal. Journal says that the filing of this answer prejudiced it in that once" }, { "docid": "4222387", "title": "", "text": "dismisses, discontinues, or in any way abandons, the action as to the resident joint defendant, the cause then becomes removable, and may, upon prompt action, be removed by the nonresident defendants who have been served. Section 1446, Title 28 U.S. C. A.; Houpburg v. Kansas City Stock Yards Company, D.C.Mo.1953, 114 F. Supp. 659, 660; Maxwell v. De Long, D. C.Mo., 107 F.Supp. 166; Southern Pacific Co. v. Haight, 9 Cir., 126 F.2d 900, 903; Powers v. Chesapeake, etc., R. Co., 169 U.S. 92, 18 S.Ct. 264, 42 L.Ed. 673; Yulee v. Vose, 99 U.S. 539, 25 L.Ed. 355; Fidler v. Western Coal & Mining Co., D.C.Ark., 33 F.2d 158; Hane v. Mid-Continent Petroleum Corp., D.C.Okl., 47 F.2d 244, 247; Fogarty v. Southern Pacific Co., C.C., 121 F. 941. But what has this plaintiff done that can be said to amount to a voluntary dismissal, abandonment, or discontinuance, of the action as to the defendant, Tatum? All that petitioning defendants point to is that, since the non est return, made January 28, 1953, on the summons issued for defendant Tatum, plaintiff had not, prior to the removal on March 3, 1955, sued out an alias summons for him. I have not been able to find a case holding that this shows, and I do not believe it shows, a voluntary dismissal, abandonment, or other discontinuance, of the action by the plaintiff as to the defendant, Tatum, and, hence, it cannot be said that plaintiff, up to the time of this removal, had voluntarily dismissed, abandoned, or discontinued, the action as to the defendant, Tatum. It follows, in my opinion, that the removal was at least premature, and that plaintiff’s motion to remand is good and must be sustained. The temptation is overpowering to say that plaintiff’s victory on this remand is probably more fanciful than real, and will be short-lived, because, unless defendant, Tatum, will enter his appearance in the case — which seems unlikely — probably the defendant will press for trial, and if plaintiff then announces ready for trial or proceeds to trial without the defendant, Tatum, in" }, { "docid": "11069066", "title": "", "text": "The judgment was affirmed' by the Supreme Court of Minnesota, tp which a writ of error was issued from this court. Passing.on motions to dismiss or affirm and answering the contention of the receivers that they acquired the right of removal as though they were the sole defendants, when the court directed a verdict in favor of the railway company, this court said by the 'Chief Justice:.“This might have been so if when the cause was called for trial in the state court, plaintiff had discontinued his action against the railway company, and thereby elected to prosecute it. against the receivers solely, instead of prosecuting it on the joint cause of action set up in the complaint against all of the defendants. Powers v. Chesapeake & Ohio Railway, 169 U. S. 92. But that is not this case.. The joint liability was insisted on here to the close, of the trial, and the non-liability of the railway company was ruled in 'inviium: . . . This was a ruling on the merits, and not a ruling on the question of jurisdiction. It was adverse to plaintiff, and without his assent, and the trial court rightly held that it did not operate, to make the cause then removable, and thereby to' enable the other defendants to prevent plaintiff, from taking a verdict against them.” The Whitcomb case and the Powers case are. commented on and impliedly approved in Chesapeake & Ohio Ry. Co. v. Dixon, 179 U. S. 131, 138. And again in Kansas City Suburban Belt Ry. Co. v. Herman, 187 U. S. 63; Fritzlen v. Boatmen’s Bank, 212 U. S. 364, 372. See also Alabama Great Southern Ry. v. Thompson, 200 U. S. 206. It follows from these views that the order of the Circuit Court setting aside the service of the summons on the Construction Company and vacating the judgment against it and dismissing the action must be Reversed and the cause remanded, with directions to grant the motion of plaintiff to remand the case to the Supreme Court of the State of New York.' So ordered." }, { "docid": "13062756", "title": "", "text": "of the doctrine itself. Repetition of the shibboleth after the need for it has evaporated elevates the imperfect vehicle over the policies it is designated to carry. The nonresident defendant’s right to a federal forum is frustrated for no good reason. In the Supreme Court decisions which the majority finds so compelling, I find nothing to convince me that a rigid and formalistic gloss for the rule was intended then, or required now, when sound considerations of policy should require a contrary result. As my Brothers write, the fountainheads are Powers v. Chesapeake & O. Ry., 169 U.S. 92, 18 S.Ct. 264, 42 L.Ed. 673 (1898) and Whitcomb v. Smithson, 175 U.S. 635, 20 S.Ct. 248, 44 L.Ed. 303 (1900). Neither ease is particularly helpful in elucidating the contours of the doctrine. Subsequent Supreme Court cases, however, clearly indicate that the doctrine has as its policy cornerstone the considerations of finality and efficiency. See, e. g., American Car & Foundry Co. v. Kettelhake, 236 U.S. 311, 316-17, 35 S.Ct. 355, 59 L.Ed. 594 (1915); Lathrop, Shea & Henwood Co. v. Interior Constr. & Improvement Co., 215 U.S. 246, 248, 30 S.Ct. 76, 54 L.Ed. 177 (1909); Kansas City Suburban Belt Ry. v. Herman, 187 U.S. 63, 23 S.Ct. 24, 47 L.Ed. 76 (1902). A plaintiff’s unextinguished right of appeal, together with possible duplication of proceedings, have been identified repeatedly by legal commentators as the underlying basis for the decisions in these cases. See Note, The Effect of Section 1446(b) on the Nonresident's Right to Remove, 115 U.Penn.L.Rev. 264, 266-67, 274 (1966); Note, Federal Practice: Removal after Resident Defendant is Involuntarily Dismissed, 17 Okla.L.Rev. 336, 337-40 (1964); Note, Removal of Suits to Federal Courts after the Statutory Deadline, 60 Harv.L.Rev. 959, 961-63 (1947). Yet, the majority states that the doctrine cannot possibly be grounded on these considerations since in Lathrop, Shea & Henwood Co., supra, the “voluntary-involuntary rule was invoked to prohibit removal even though the state appellate process was complete.” State appeals may have been exhausted there, although that much is not at all clear. Nonetheless, telling language in the" } ]

[ { "docid": "10980601", "title": "", "text": "diet, then this Court would grant their alternative motion for a new trial on the grounds that the verdicts against them were against the weight of the evidence.” However, the district court denied defendant Furrow’s motion for a new trial, and entered final judgment in favor of Marsh against Furrow for compensatory damages in the amount of $45,000 and punitive damages in the amount of $5,000. Marsh filed a timely notice of appeal, and Furrow filed a timely notice of cross-appeal. The specific issues on appeal are (1) whether the district court erred by granting JNOV and conditionally granting a new trial for defendants Amis, Arn, Graves and Morse; (2) whether the district court erred by denying defendant Furrow’s motion for JNOV or, in the alternative, a new trial; and (3) whether defendants are entitled to qualified immunity. Because we affirm the district court’s grant of JNOV for defendants Amis, Arn, Graves, and Morse under the current standard of liability, it is unnecessary to review the conditional grant of a new trial or the defense of qualified immunity as to these defendants. Likewise, we need not consider whether defendant Furrow should be granted a new trial since we find, contrary to the district court’s ruling, that she is entitled to qualified immunity. II. “The issue raised by a motion for a judgment notwithstanding the verdict is whether there is sufficient evidence to raise a question of fact for the jury.” Ratliff v. Wellington Exempted Village Schools Bd. of Educ., 820 F.2d 792, 795 (6th Cir.1987). When reviewing a district court’s decision to grant or deny JNOV, we apply the same standard used by the district court. Id. Accordingly, in testing the sufficiency of the evidence, we “may neither weigh the evidence, pass on the credibility of witnesses nor substitute [our] judgment for that of the jury.” Id. “Rather, the evidence must be viewed in the light most favorable to the party against whom the motion is made, drawing from that evidence all reasonable inferences in his favor.” Id. If the evidence “points so strongly in favor of the movant that" } ]

[ { "docid": "13522483", "title": "", "text": "Wehr cross-appeals, challenging the amount of the district court’s award of attorney fees. We have jurisdiction over this appeal under 28 U.S.C. § 1331. I. STANDARD OF REVIEW This court’s standard of review of denial of a motion for a judgment notwithstanding the verdict is identical to the standard used by the district court. We do not weigh the evidence, evaluate the credibility of the witnesses, or substitute our judgment for that of the jury. Instead, we must view the evidence in the light most favorable to the party against whom the motion is made, and give that party the benefit of all reasonable inferences. The motion should be granted, and we should reverse the district court’s decision, only if reasonable minds could not come to a conclusion other than one in favor of the movant. Phelps v. Yale Sec., Inc., 986 F.2d 1020, 1023 (6th Cir.), cert. denied, — U.S. —, 114 S.Ct. 175, 126 L.Ed.2d 135 (1993). II. THE AFTER-ACQUIRED EVIDENCE RULE In Johnson v. Honeywell Information Sys., Inc., 955 F.2d 409 (6th Cir.1992), we first applied the after-acquired evidence rule in the employment discrimination context, holding that an employer could escape any liability for its discriminatory actions if the company learned, after the fact, of an otherwise legitimate reason for taking the adverse employment action. In Honeywell, a female managerial employee sued her former employer for violating several Michigan laws prohibiting discrimination. The company, during discovery, learned that the employee had falsified the educational and experience portions of her resume. Although she had •claimed to have earned a college degree, a prerequisite for the job, she had taken only four courses at the local university. Interpreting Michigan law, we held that “just cause for termination of employment may include facts unknown to an employer at the time of dismissal, though obviously such facts would be neither the actual nor inducing cause for the discharge.” In Milligan-Jensen v. Michigan Tech. Univ., 975 F.2d 302 (6th Cir.1992), cert. granted, — U.S. —, 113 S.Ct. 2991, 125 L.Ed.2d 686 (1993), cert. dismissed, — U.S. —, 114 S.Ct. 22, 125 L.Ed.2d" }, { "docid": "13522482", "title": "", "text": "had learned that Wehr had lied about his employment background and medical history on his resume, including misstatements about his past mental stability and the circumstances of his leaving a former employer. Ryan’s also alleged that they had discovered that Wehr had sexually harassed Tammy Farrell, a female waitress under Wehr’s supervision. Ryan’s claims that had they known of any of these incidents during Wehr’s employment, they would have fired him. Ryan’s argued that this circuit’s after-acquired evidence rule prevents Wehr from recovering for the Title VII violation under our decision in Johnson v. Honeywell Info. Sys., Inc., 955 F.2d 409 (6th Cir.1992), and its progeny. The magistrate judge, however, rejected these arguments and denied Ryan’s motion for judgment notwithstanding the jury’s verdict. On appeal, Ryan’s renews its argument that Honeywell prevents Wehr from any recovery, including back pay, reinstatement, injunctive relief, and attorney fees. Ryan’s also argues that Wehr did not have a good faith belief that sexual discrimination violations had occurred, and thus, he could not seek protection under 42 U.S.C. § 2000e-3. Wehr cross-appeals, challenging the amount of the district court’s award of attorney fees. We have jurisdiction over this appeal under 28 U.S.C. § 1331. I. STANDARD OF REVIEW This court’s standard of review of denial of a motion for a judgment notwithstanding the verdict is identical to the standard used by the district court. We do not weigh the evidence, evaluate the credibility of the witnesses, or substitute our judgment for that of the jury. Instead, we must view the evidence in the light most favorable to the party against whom the motion is made, and give that party the benefit of all reasonable inferences. The motion should be granted, and we should reverse the district court’s decision, only if reasonable minds could not come to a conclusion other than one in favor of the movant. Phelps v. Yale Sec., Inc., 986 F.2d 1020, 1023 (6th Cir.), cert. denied, — U.S. —, 114 S.Ct. 175, 126 L.Ed.2d 135 (1993). II. THE AFTER-ACQUIRED EVIDENCE RULE In Johnson v. Honeywell Information Sys., Inc., 955 F.2d 409 (6th" }, { "docid": "22986728", "title": "", "text": "for New Trial When reviewing a district court’s decision to grant or deny a motion for judgement as a matter of law, we apply the same standard as that used by the district court: the court should neither weigh the evidence, evaluate the credibility of the witnesses, nor substitute its judgment for that of the jury; rather it must view the evidence in the light most favorable to the party against whom the motion is made, and give that party the benefit of all reasonable inferences. Agristor Leasing v. A.O. Smith Harvestore Products, 869 F.2d 264, 268 (6th Cir.1989). “Only when it is clear that reasonable people could come to but one conclusion from the evidence should a court grant a motion for directed verdict.” Lewis v. City of Irvine, 899 F.2d 451, 454-55 (6th Cir.1990); see also Marsh v. Arn, 937 F.2d 1056, 1060 (6th Cir.1991). We review the court’s denial of Defendants’ motion for a new trial only for abuse of discretion; the trial court should deny such a motion if the verdict is one that reasonably could be reached, regardless of whether the trial judge might have reached a different conclusion were he the trier of fact. United States v. L.E. Cooke Co., 991 F.2d 336, 343 (6th Cir.1993). An abuse of discretion exists when the reviewing court is firmly convinced that a mistake has been made. In re Bendectin Litigation, 857 F.2d 290, 307 (6th Cir.1988), cert. denied, 488 U.S. 1006, 109 S.Ct. 788, 102 L.Ed.2d 779 (1989); Schrand v. Federal Pacific Electric Co., 851 F.2d 152, 156-57 (6th Cir.1988). The district court provided three separate rationales for directing a verdict in Plaintiffs’ favor on the issue of liability: first, that Sebring violated Plaintiffs’ procedural due process rights; second, that Sebring violated its own Loan Resolution; and third, that Sebring violated the Consolidated Farm and Rural Development Act, 7 U.S.C. § 1921 et seq. If we agree with even one of these rationales, we are obliged to affirm. 1. Procedural Due Process Because we agree with the district court’s rationales based on statutory law, it is" }, { "docid": "16413664", "title": "", "text": "trial, which the district court granted with respect to the issue of liability for civil penalties. On November 1, 1999, after a fourteen-day trial, the jury filled out a special-verdict form containing over 900 questions. The jury found that in all cases but smoke, tobacco smoke, and cigarette smoke, Alpine’s claims were not supported by competent and reliable scientific evidence. II Directed Verdict/JNOV Alpine moved for a directed verdict at the conclusion of the government’s case in chief and again at the close of evidence, and later moved for a judgment notwithstanding the verdict. We review the district court’s denial of Alpine’s motions for judgment as a matter of law (motions for a directed verdict) and renewed motion for judgment as a matter of law (motion for judgment notwithstanding the verdict) de novo. Moore v. KUKA Welding Sys. & Robot Corp., 171 F.3d 1073, 1078 (6th Cir.1999) (citing K & T Enters. v. Zurich Ins. Co., 97 F.3d 171, 175 (6th Cir.1996) and Wehr v. Ryan’s Family Steak Houses, 49 F.3d 1150, 1152 (6th Cir.1995)). In doing so, we use the same standard of review used by the district court. Phelps v. Yale Sec., 986 F.2d 1020, 1023 (6th Cir.1993). In order to prevail, Alpine must demonstrate that “no reasonable juror could have found for the non-moving party.” Moore, 171 F.3d at 1078. In applying this standard, we cannot weigh the credibility of witnesses and cannot substitute our judgment for that of the jury. K & T Enters., 97 F.3d at 175-76. Instead, we are to view the evidence in a light most favorable to the government and give the government the benefit of all reasonable inferences. Ibid. Alpine contends that the burden was on the government to establish a prima facie case and that the government did not meet this initial burden, so that Alpine is entitled to a judgment as a matter of law, notwithstanding the jury’s verdict. The government conceded in a pretrial hearing that it had the burden of proving at trial 1) that Alpine had made claims or representations that fell within the terms of" }, { "docid": "23574263", "title": "", "text": "such a finding. The magistrate judge also denied defendant’s motion for a new trial, finding that (1) the verdict was not against the clear weight of the evidence; (2) its evidentiary rulings were not prejudicial to defendant; (3) the jury instructions were not misleading, inadequate, or prejudicial; and (4) the verdict did not shock the conscience. Finally, stating that the “propriety of a punitive damages award in this case is a close question,” because plaintiff did not complain about many of the comments, the magistrate judge concluded that the jury could have determined that particular circumstances demonstrated reckless disregard for women’s rights in general and plaintiffs rights in particular. Accordingly, the magistrate judge affirmed the judgment. This timely appeal followed. II. Discussion A. This Court’s standard of review for a Fed.R.Civ.P. 50(b) motion for judgment as a matter of law based on the sufficiency of the evidence is identical to that used by the District Court. K & T Enters., Inc. v. Zurich Ins. Co., 97 F.3d 171, 175 (6th Cir.1996). Thus, we do not weigh the evidence, evaluate the credibility of the witnesses, or substitute our judgment for that of the jury. Id. at 175-76; Wehr v. Ryan’s Family Steak Houses, Inc., 49 F.3d 1150, 1152 (6th Cir.1995). Instead, we must view the evidence in the light most favorable to the party against whom the motion was made, and give that party the benefit of all reasonable inferences. K & T Enters., Inc., 97 F.3d at 176. We reverse a district court’s denial of such a motion only if reasonable minds could not come to a conclusion other than one in favor of the movant. Id. B. Title VII of the Civil Rights Act of 1964 prohibits discrimination “against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s ... sex.” 42 U.S.C. § 2000e-2(a)(1). In Meritor Savings Bank v. Vinson, 477 U.S. 57, 66, 106 S.Ct. 2399, 2405, 91 L.Ed.2d 49 (1986), the Supreme Court held that a plaintiff may establish a violation of Title VII by proving that discrimination based" }, { "docid": "3582402", "title": "", "text": "the Superintendent then filed motions for a judgment notwithstanding the verdict, a new trial and a remittitur of damages. The district court denied the first two motions; but the court granted the third with respect to the punitive damages assessed against the Superintendent, which the court remitted. The district court also ordered payment of $75,537.72 in back pay. On appeal appellants first argue that the district court should have granted their motion for a judgment notwithstanding the verdict because the evidence presented at trial did not permit a reasonable conclusion that Ratliffs September 1982 speech played a determinative role in the decision not to renew Ratliffs employment contract. The argument is without merit. The issue raised by a motion for a judgment notwithstanding the verdict is whether there is sufficient evidence to raise a question of fact for the jury. In determining whether the evidence is sufficient, the trial court may neither weigh the evidence, pass on the credibility of witnesses nor substitute its judgment for that of the jury. Rather, the evidence must be viewed in the light most favorable to the party against whom the motion is made, drawing from that evidence all reasonable inferences in his favor. If, after thus viewing the evidence, the trial court is of the opinion that it points so strongly in favor of the movant that reasonable minds could not come to a different conclusion, then the motion should be granted. An appellate court when reviewing the trial court’s decision is bound by the same standard. More-lock v. NCR Corp, 586 F.2d 1096, 1104-05 (6th Cir.1978), cert. denied, 441 U.S. 906, 99 S.Ct. 1995, 60 L.Ed.2d 375 (1979). Applying that standard to the evidence presented here, the district court’s denial of appellants’ motion for a judgment notwithstanding the verdict clearly must be affirmed. The parties agree that under Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977), if a public employee alleges that his employer took adverse action against him in retaliation for his exercise of first amendment rights, the following" }, { "docid": "11190153", "title": "", "text": "$82,245 on each count. The district court ruled, however, that Washburn could not recover the same items of damages under both counts and thus entered judgment for $82,245 actual damages. The district court later granted K.C. Life’s motion for judgment notwithstanding the verdict (judgment n.o.v.) on both counts and conditionally granted a new trial if the judgment for K.C. Life is reversed. Washburn filed this appeal contesting the district court’s entry of the judgment n.o.v. as to the age discrimination and breach of employment contract claims and conditional grant of a new trial on those claims and the dismissal of the fraud claim. DISCUSSION Judgment N.O.Y. on Age Discrimination Claim The standard for granting a judgment n.o.v. is well established in this circuit. In determining whether a party is entitled to a judgment notwithstanding an adverse jury verdict, the district court must view the evidence, together with all reasonable inferences to be drawn therefrom, in the light most favorable to the party who prevailed before the jury. Gilkerson v. Toastmaster, Inc., 770 F.2d 133, 136 (8th Cir. 1985). Furthermore, like a directed verdict, a judgment n.o.v. should be granted only when all the evidence points one way and is susceptible of no reasonable inferences sustaining the position of the non-moving party. Bell v. Gas Serv. Co., 778 F.2d 512, 514 (8th Cir.1985). Because the standards for appellate review of a judgment n.o.v. are the same as those which the district court must apply, Smith v. Monsanto Chem. Co., 770 F.2d 719, 722 (8th Cir.1985), cert. denied, 475 U.S. 1050, 106 S.Ct. 1273, 89 L.Ed.2d 581 (1986), this court must resolve factual disputes in favor of the appellant, assume all facts in his favor which the evidence tends to prove, and give him the benefit of all reasonable inferences. Bell, supra, 778 F.2d at 514-15. Keeping this standard in mind, the court must consider the nature of proof required under the ADEA and evaluate the evidence appellant presented at trial. Id. at 515. The ADEA prohibits discrimination against any individual who is “at least 40 years of age but less than" }, { "docid": "23004109", "title": "", "text": "was changed to stenographer although she did not receive a reduction in pay. The reason proffered by Petty for transferring Phelps out of the secretarial job was that he believed that she was divulging confidential information regarding employee salaries. Petty hired a thirty-nine-year-old secretary several months later. Yale Security laid off Phelps and three other full-time employees on July 8, 1988. Company management made this reduction to meet a goal of a 3-to-l ratio of direct manufacturing employees to administrative staff. Mike Robinson of Yale Security’s human resources department asked the Lenoir City department leaders to determine whether any positions could be eliminated without damaging the efficiency of administrative operations. In response, McCulloch suggested that Yale Security eliminate Phelps’ position as a stenographer. McCulloch also eliminated a dispatcher position held by twenty-five-year-old David Fickey. The accounting department removed the chief timekeeper position occupied by fifty-three year-old Coy Plemmons. The production planning department eliminated the designer position held by Melvin Pressley, age fifty-six. In addition, Yale Security terminated the temporary employment of twenty-nine year-old Lynn Harvey. Although Phelps requested a transfer to any available position, Yale Security did not transfer or rehire her or the other two workers in the protected class. Instead, when some openings developed, it rehired the two youngest laid-off workers. In August 1988, Yale Security created a new dispatcher position and filled two customer service positions. Phelps specifically asked about a dispatcher position at her termination meeting. However, twenty-five year-old David Fickey was rehired as the new dispatcher. Phelps also believed that she was qualified to be a customer service clerk. Nonetheless, Lynn Harvey was rehired as a customer service clerk. On July 9, 1990, Phelps filed the present action against Yale Security on the basis of age discrimination in regard to her transfer and ultimate discharge. Yale Security filed a motion for summary judgment on April 21, 1991, and the district court denied the motion on June 26, 1991. On November 25, 26, and 27, 1991, the case was tried before a jury. The jury returned a verdict for Phelps and awarded her $121,418 in back" }, { "docid": "23030922", "title": "", "text": "the evidence should be viewed in the light most favorable to the party against whom the motion is made, and that party given the benefit of all reasonable inferences. The motion should be granted, and the district court reversed, only if reasonable minds could not come to a conclusion other than one favoring the movant. Wehr v. Ryan’s Family Steak Houses, Inc., 49 F.3d 1150, 1152 (6th Cir.1995); Phelps v. Yale Security, Inc., 986 F.2d 1020, 1023 (6th Cir.), cert. denied, 510 U.S. 861, 114 S.Ct. 175, 126 L.Ed.2d 135 (1993). By contrast, when sitting in diversity, we review denial of a Rule 50 motion using the same standards applicable under the law of the forum state. Kingsley Assoc., Inc. v. Del-Met, Inc., 918 F.2d 1277, 1280-81 (6th Cir.1990). This rule can be traced back to Lovas v. GM Corp., 212 F.2d 805, 807 (6th Cir.1954). The Lovas rule is based on Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), which holds that because there is no general federal common law, state law provides the substantive law governing diversity cases. Erie may seem to call for the application of state law to determine the standard of review in all cases. The problem with such an across-the-board application of Erie is three-fold: First, Lovas is limited by its facts to review of questions of evidence sufficiency. Second, many states do not have a combined procedural rule governing judgments as a matter of law, continuing the practice of separate motions for directed verdicts and JNOV. Therefore, it is much more difficult to find the state law for the appropriate procedural mechanism that corresponds to the amalgamated Rule 50(b) motion. Finally, and most importantly, it is clear that we need show no deference to the trial court’s assessment of the sufficiency of the evidence before a jury, even if state law so requires. Only the Tenth Circuit has sanctioned such deference. See, e.g., Chicago Rock Island & Pac. R.R. Co. v. Howell, 401 F.2d 752, 755 (10th Cir.1968). The consensus is that this position is entirely" }, { "docid": "23004112", "title": "", "text": "reasonable inferences. Id. The motion should be granted, and we should affirm if reasonable minds could not come to a conclusion other than one in favor of the movant. Id. As a starting point, the Age Discrimination in Employment Act declares it unlawful for an employer “to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age.” 29 U.S.C. § 623(a)(1). A plaintiff who brings a claim under the Age Discrimination in Employment. Act must prove that age was a determining factor in the adverse action that the employer took against him or her. Kraus v. Sobel Corrugated Containers, Inc., 915 F.2d 227, 229-30 (6th Cir.1990) (citations omitted). We recognize, as have all the courts faced with claims of age or sex discrimination, that there is no fixed, easy formula to prove the circumstances of the discrimination. See Scales v. J.C. Bradford and Co., 925 F.2d 901 (6th Cir.1991); Yates v. Avco Corp., 819 F.2d 630 (6th Cir.1987). Such claims generally involve nebulous, circumstantial evidence, but our review must start somewhere. Sarah N. Phelps' central argument is that age was a determining factor in Yale Security’s decision to transfer and/or terminate her. The district court disagreed as do we. In such a case, the plaintiff is required to produce evidence that age was a factor in the employer’s decision to discharge the plaintiff and that but for this factor, the plaintiff would not have been discharged. Chappell v. GTE Products Corp., 803 F.2d 261, 265-266, (6th Cir.1986), cert. denied, 480 U.S. 919, 107 S.Ct. 1375, 94 L.Ed.2d 690 (1987). Phelps contends that she presented sufficient evidence to sustain the verdict when the evidence is viewed in the light most favorable to her. In a discharge case, when the plaintiff lacks direct evidence of discrimination, a plaintiff establishes a prima facie case of age discrimination by showing: (1) he or she was a member of the protected class; (2) he or she was discharged; (3) he or she was qualified for the position; and (4) he" }, { "docid": "23030921", "title": "", "text": "is not granted, the court is deemed to have submitted the action to the jury subject to a later determination of the legal questions raised by the motion.” The 1991 Advisory Committee’s Notes to revisions in the Federal Rules of Civil Procedure indicate that one purpose of the terminology change was to make clear the linkage between Rule 50 and Rule 56 relating to summary judgment, both of which use the same phrase “judgment as a matter of law.” Fed. R.Civ.P. 50 advisory committee’s note (1991). Compare Fed.R.Civ.P. 50 with Fed.R.Civ.P. 56(c). See Chesapeake Paper, 51 F.3d at 1236 (“a party may appropriately move for judgment as a matter of law on discrete legal issues”). In a federal question case, the standard of review for a Rule 50 motion based on sufficiency of the evidence is identical to that used by the district court. The evidence should not be weighed. The credibility of the witnesses should not be questioned. The judgment of this court should not be substi tuted for that of the jury. Instead, the evidence should be viewed in the light most favorable to the party against whom the motion is made, and that party given the benefit of all reasonable inferences. The motion should be granted, and the district court reversed, only if reasonable minds could not come to a conclusion other than one favoring the movant. Wehr v. Ryan’s Family Steak Houses, Inc., 49 F.3d 1150, 1152 (6th Cir.1995); Phelps v. Yale Security, Inc., 986 F.2d 1020, 1023 (6th Cir.), cert. denied, 510 U.S. 861, 114 S.Ct. 175, 126 L.Ed.2d 135 (1993). By contrast, when sitting in diversity, we review denial of a Rule 50 motion using the same standards applicable under the law of the forum state. Kingsley Assoc., Inc. v. Del-Met, Inc., 918 F.2d 1277, 1280-81 (6th Cir.1990). This rule can be traced back to Lovas v. GM Corp., 212 F.2d 805, 807 (6th Cir.1954). The Lovas rule is based on Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), which holds that because there is no general" }, { "docid": "23004110", "title": "", "text": "Although Phelps requested a transfer to any available position, Yale Security did not transfer or rehire her or the other two workers in the protected class. Instead, when some openings developed, it rehired the two youngest laid-off workers. In August 1988, Yale Security created a new dispatcher position and filled two customer service positions. Phelps specifically asked about a dispatcher position at her termination meeting. However, twenty-five year-old David Fickey was rehired as the new dispatcher. Phelps also believed that she was qualified to be a customer service clerk. Nonetheless, Lynn Harvey was rehired as a customer service clerk. On July 9, 1990, Phelps filed the present action against Yale Security on the basis of age discrimination in regard to her transfer and ultimate discharge. Yale Security filed a motion for summary judgment on April 21, 1991, and the district court denied the motion on June 26, 1991. On November 25, 26, and 27, 1991, the case was tried before a jury. The jury returned a verdict for Phelps and awarded her $121,418 in back pay and future compensation. On December 12, 1991, Yale Security filed a motion for judgment notwithstanding the verdict under Fed.R.Civ.P. 50(b), or, in the alternative, for a new trial. On April 10, 1992, the district court granted Yale Security’s motion and entered judgment in favor of Yale Security. The district court also conditionally granted the alternative motion for a new trial in the event that the judgment for Yale Security is reversed. In this timely appeal, Phelps contends that the jury verdict should stand. This court’s standard of review of a judgment notwithstanding the verdict is identical to the standard used by the district court. Marsh v. Arn, 937 F.2d 1056, 1060 (6th Cir.1991). We do not weigh the evidence, evaluate the credibility of the witnesses, or substitute our judgment for that of the jury. Schrand v. Federal Pac. Elec. Co., 851 F.2d 152, 154-55 (6th Cir.1988). Instead, we must view the evidence in the light most favorable to the party against whom the motion is made, and give that party the benefit of all" }, { "docid": "22071504", "title": "", "text": "notwithstanding the verdict, see generally Piesco v. Koch, 12 F.3d at 341; Samuels v. Air Transport Local 501, 992 F.2d at 14, is well established. Judgment as a matter of law may not properly be granted under Rule 50 unless the evidence, viewed in the light most favorable to the opposing party, is insufficient to permit a reasonable juror to find in her favor. See, e.g., Sir Speedy, Inc. v. L & P Graphics, Inc., 957 F.2d 1033, 1039 (2d Cir.1992); Vasbinder v. Ambach, 926 F.2d 1333, 1339 (2d Cir.1991). In deciding such a motion, the court must give deference to all credibility determinations and reasonable inferences of the jury, id, and it may not itself weigh the credibility of witnesses or consider the weight of the evidence, id. at 1340. Thus, judgment as a matter of law should not be granted unless (1) there is such a complete absence of evidence supporting the verdict that the jury’s findings could only have been the result of sheer surmise and conjecture, or (2) there is such an overwhelming amount of evidence in favor of the movant that, reasonable and fair minded [persons] could not arrive at a verdict against [it], Cruz v. Local Union No. 3, 34 F.3d at 1154 (quoting Bauer v. Raymark Industries, Inc., 849 F.2d 790, 792 (2d Cir.1988) (internal quotation marks omitted)). The same standards govern the court of appeals in its review of the decision of a motion for JMOL. See, e.g., Sir Speedy, Inc. v. L & P Graphics, Inc., 957 F.2d at 1039; Vasbinder v. Ambach, 926 F.2d at 1339. Within this framework, we consider the propriety of JMOL in light of the substantive law. Title VII provides that “[i]t shall be an unlawful employment practice for an employer ... to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s ... sex____” 42 U.S.C. § 2000e-2(a). One form of gender discrimination prohibited by Title VII is sexual harassment that results in a “hostile or abusive work environment.” Meritor" }, { "docid": "23004122", "title": "", "text": "See McDonald v. Union Camp, 898 F.2d 1155, 1162 (6th Cir.1990) (noting that remarks may reflect age bias). However, as Yale Security argues, isolated and ambiguous comments “ ‘are too abstract, in addition to being irrelevant and prejudicial, to support a finding of age discrimination.’ ” Gagné v. Northwestern Nat. Ins. Co., 881 F.2d 309, 314 (6th Cir.1989) (quoting Chappell, 803 F.2d at 268 n. 2). Because McCulloch made the statements nearly a year before the layoff, the comments were made too long before the layoff to have influenced the termination decision. Moreover, the statement regarding Phelps’ birthday was too ambiguous to establish the necessary inference of age discrimination. In sum, all of the evidence that Phelps produced in support of her claim that Yale Security’s reason for the discharge was pretextual fails to establish that age was a determining factor as required by law. See Blackwell, 696 F.2d at 1180. (holding that plaintiff in ADEA cases has the ultimate burden of showing that age was a determining factor in the employer’s decision in order to establish liability). A plaintiff must prove that age was a factor in the defendant’s decision to terminate the plaintiff, and that but for this factor, the defendant would not have made the decision. Gagne’, 881 F.2d at 314 (citation omitted). Phelps’ evidence fails to meet the “but for” requirement. A reasonable jury could not find that Phelps would have been discharged even if Yale Security did not act to reach a 3-to-l ratio of manufacturing workers to administrators. Likewise, a reasonable jury could not find that Phelps would not have been discharged if she had been younger. As a matter of law, age was not a determining factor in Phelps’ discharge. Consequently, the judgment notwithstanding the verdict was proper. Because we affirm the district court’s grant of a judgment notwithstanding the verdict, we need not consider Phelps’ appeal of the court’s conditional grant of a new trial. The judgment of the district court is affirmed." }, { "docid": "17054594", "title": "", "text": "district court. The evidence should not be weighed, and the credibility of the witnesses should not be questioned. The judgment of this court should not be substituted for that of the jury; instead, the evidence should be viewed in the light most favorable to the party against whom the motion is made, and that party given the benefit of all reasonable inferences. The motion should be granted, and the district court reversed, only if reasonable minds could not come to a conclusion other than one favoring the movant. Id. See also Wehr v. Ryan’s Family Steak Houses, Inc., 49 F.3d 1150, 1152 (6th Cir.1995); Phelps v. Yale Security, Inc., 986 F.2d 1020, 1023 (6th Cir.), cert. denied, 510 U.S. 861, 114 S.Ct. 175, 126 L.Ed.2d 135 (1993). The district court must “indulge all presumptions in favor of the validity of the jury’s verdict,” and “should refrain from interfering with a jury’s verdict unless it is clear that the jury reached a seriously erroneous result.” Brooks v. Toyotomi Co., 86 F.3d 582, 588 (6th Cir.1996) (internal quotation marks and citations omitted). The plaintiffs argument with respect to his disparate treatment and disparate impact claims is without merit. While it is clear that the plaintiff presented a case that properly withstood summary judgment, and that would have been adequate to support a jury verdict in his favor, it is also clear that the defendants presented evidence adequately disputing the plaintiffs claim. The defendants offered evidence that only Slater, Jones, and Harper had influence over the hiring decisions, and while Slater knew of Williams’s race, both Jones and Harper testified that they did not — and Slater proposed Williams for further consideration by Jones and Harper. Thus, the jury could reasonably have concluded that there was no racial discrimination in connection with the 1991 and 1992 applications. Although Jones interviewed only people he knew, there is nothing in the evidence to suggest that he was predisposed against black persons, if they had made it a point to introduce themselves and let him know of their interest in particular positions. There is simply nothing" }, { "docid": "23004111", "title": "", "text": "pay and future compensation. On December 12, 1991, Yale Security filed a motion for judgment notwithstanding the verdict under Fed.R.Civ.P. 50(b), or, in the alternative, for a new trial. On April 10, 1992, the district court granted Yale Security’s motion and entered judgment in favor of Yale Security. The district court also conditionally granted the alternative motion for a new trial in the event that the judgment for Yale Security is reversed. In this timely appeal, Phelps contends that the jury verdict should stand. This court’s standard of review of a judgment notwithstanding the verdict is identical to the standard used by the district court. Marsh v. Arn, 937 F.2d 1056, 1060 (6th Cir.1991). We do not weigh the evidence, evaluate the credibility of the witnesses, or substitute our judgment for that of the jury. Schrand v. Federal Pac. Elec. Co., 851 F.2d 152, 154-55 (6th Cir.1988). Instead, we must view the evidence in the light most favorable to the party against whom the motion is made, and give that party the benefit of all reasonable inferences. Id. The motion should be granted, and we should affirm if reasonable minds could not come to a conclusion other than one in favor of the movant. Id. As a starting point, the Age Discrimination in Employment Act declares it unlawful for an employer “to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age.” 29 U.S.C. § 623(a)(1). A plaintiff who brings a claim under the Age Discrimination in Employment. Act must prove that age was a determining factor in the adverse action that the employer took against him or her. Kraus v. Sobel Corrugated Containers, Inc., 915 F.2d 227, 229-30 (6th Cir.1990) (citations omitted). We recognize, as have all the courts faced with claims of age or sex discrimination, that there is no fixed, easy formula to prove the circumstances of the discrimination. See Scales v. J.C. Bradford and Co., 925 F.2d 901 (6th Cir.1991); Yates v. Avco Corp., 819 F.2d 630 (6th Cir.1987). Such claims" }, { "docid": "18190251", "title": "", "text": "Transit Authority equal to their lost earnings. Defendants subsequently moved pursuant to Fed.R.Civ.P. 50(b) for judgment notwithstanding the verdict, or, in the alternative, a new trial pursuant to Rule 59. In a Memorandum and Order filed April 22, 2004, the district court denied both motions, finding that the evidence of discriminatory intent was sufficient to support a jury verdict, that liquidated damages were properly available for defendants’ willful violation of the ADEA, and that the emotional distress awards were not unreasonable under New York law. Accordingly, it simultaneously entered a final judgment in favor of plaintiffs consistent with the jury verdict. Defendants timely appealed this judgment. II. Discussion A. The Sufficiency of the Evidence to Support Defendants’ Liability for Age Discrimination 1. Standard of Review Defendants submit that the district court erred when it denied their post-verdict motion for judgment as a matter of law, see Fed.R.Civ.P. 50(b), and, instead, entered judgment in favor of plaintiffs on the claim of age discrimination in employment. To succeed on a Rule 50 motion, a movant must show that, after full hearing on an issue at trial, “there is no legally sufficient evidentiary basis for a reasonable jury” to resolve the issue in favor of the non-moving party. Fed.R.Civ.P. 50(a)(1). In reviewing a Rule 50 motion, a court may consider all the record evidence, but in doing so it “must draw all reasonable inferences in favor of the nonmoving party, and it may not make credibility determinations or weigh the evidence.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000); see also Mickle v. Morin, 297 F.3d 114, 120 (2d Cir.2002); Samuels v. Air Transp. Local 504, 992 F.2d 12, 14 (2d Cir.1993); Song v. Ives Labs., Inc., 957 F.2d 1041, 1046 (2d Cir.1992). A movant’s burden in securing Rule 50 relief is particularly heavy after the jury has deliberated in the case and actually returned its verdict. Under such circumstances, the district court may set aside the verdict only where there is “ ‘such a complete absence of evidence supporting the verdict that the" }, { "docid": "19430273", "title": "", "text": "2017. In the same order, the district court also granted Mosby-Meachem's request for an award of equitable relief. MLG&W subsequently appealed those decisions to this Court. II. Although this Court reviews the denial of a renewed motion for judgment as a matter of law de novo, Mike's Train House, Inc. v. Lionel, L.L.C. , 472 F.3d 398, 405 (6th Cir. 2006), it nevertheless must \"apply the same deferential standard as the district court.\" Arnold v. Wilder , 657 F.3d 353, 363 (6th Cir. 2011). The Federal Rules of Civil Procedure authorize courts to enter judgment as a matter of law against a plaintiff upon finding that \"a reasonable jury would not have a legally sufficient evidentiary basis to find\" in his or her favor. FED. R. CIV. P.50. In making such a determination, the courts must view the evidence in the light most favorable to the nonmovant, granting all reasonable inferences in their favor. Garrison v. Cassens Transp. Co. , 334 F.3d 528, 537 (6th Cir. 2003) (citing Phelps v. Yale Sec., Inc. , 986 F.2d 1020, 1023 (6th Cir.), cert. denied , 510 U.S. 861, 114 S.Ct. 175, 126 L.Ed.2d 135 (1993) ). The court should \"not weigh the evidence, evaluate the credibility of the witnesses, or substitute [its] judgment for that of the jury.\" Wehr v. Ryan's Family Steak Houses, Inc. , 49 F.3d 1150, 1152 (6th Cir. 1995). \"[T]he verdict should not be considered unreasonable simply because different inferences and conclusions could have been drawn or because other results are more reasonable.\" J.C. Wyckoff & Assocs. v. Standard Fire Ins. Co ., 936 F.2d 1474, 1487 (6th Cir. 1991). A motion for judgment as a matter of law should be granted \"only if reasonable minds could not come to a conclusion other than one favoring the movant.\" Garrison , 334 F.3d at 537-38 (quoting K & T Enters., Inc. v. Zurich Ins. Co ., 97 F.3d 171, 176 (6th Cir. 1996) ). This Court \"review[s] a denial of a motion for a new trial for an abuse of discretion....\" Anchor v. O'Toole , 94 F.3d 1014, 1021" }, { "docid": "16676708", "title": "", "text": "or a remittitur. Frost, for her part, filed several post-trial motions seeking an additur, injunctive relief, judgments notwithstanding the verdicts and/or new trials as to defendants Price, Ashbrook and Snodgrass. She also sought a new trial against the City of Church Hill. These motions, which the trial court denied, are now the issues on appeal. II. In evaluating whether the district court erred in denying the Board’s motion for judgment notwithstanding the verdict and whether the district court properly directed the verdict in favor of the City of Church Hill, our standard of review is whether there was sufficient evidence to raise a material question of fact for the jury. O’Neill v. Kiledjian 511 F.2d 511, 513 (6th Cir.1975). This determination is one of law to be made by the trial court initially. Id. In determining whether the evidence is sufficient, the trial court may neither weigh the evidence, pass on the credibility of witnesses nor substitute its judgment for that of the jury. Rather, the evidence must be viewed in the light most favorable to the party against whom the motion is made, drawing from that evidence all reasonable inferences in his favor. If, after thus viewing the evidence, the trial court is of the opinion that it points so strongly in favor of the movant that reasonable minds could not come to a different conclusion, then the motion should be granted. Morelock v. NCR Corp., 586 F.2d 1096, 1104-05 (6th Cir.1978), cert. denied, 441 U.S. 906, 99 S.Ct. 1995, 60 L.Ed.2d 375 (1979) (citations omitted). As an appellate court we apply the same standard. Id. III. The dispositive issue in this case, as in any section 1983 case, is whether Frost was deprived of any federal right. In assessing this, we look to section 1983, on which all of plaintiff’s claims are based. Section 1983, in relevant part, provides as follows: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other" }, { "docid": "17054593", "title": "", "text": "testimony explaining why Moore had not been hired. y. Williams argues, finally, that the “evidence at trial does not support the jury’s verdict.” He disputes the validity of the verdict with regard both to his disparate treatment and disparate impact claims, as well as with regard to the retaliation claim. With respect, first, to his disparate treatment and disparate impact claims, Williams contends that because Jones, a white male, hired only people he knew or knew of, and because those people were always white males, the plaintiff has proved that “discretionary, subjective criteria are employed to hire át TNN,” and that “[w]ho you know is more important than what you know.” We review the district court’s denial of the plaintiffs motion for judgment as a matter of law pursuant to Fed.R.Civ.P. 50(b)-de novo. K & T Enterprises, Inc. v. Zurich Ins. Co., 97 F.3d 171, 175 (6th Cir.1996). In a federal question case, the standard of review for a Rule 50 motion based on sufficiency of the evidence is identical to that used by the district court. The evidence should not be weighed, and the credibility of the witnesses should not be questioned. The judgment of this court should not be substituted for that of the jury; instead, the evidence should be viewed in the light most favorable to the party against whom the motion is made, and that party given the benefit of all reasonable inferences. The motion should be granted, and the district court reversed, only if reasonable minds could not come to a conclusion other than one favoring the movant. Id. See also Wehr v. Ryan’s Family Steak Houses, Inc., 49 F.3d 1150, 1152 (6th Cir.1995); Phelps v. Yale Security, Inc., 986 F.2d 1020, 1023 (6th Cir.), cert. denied, 510 U.S. 861, 114 S.Ct. 175, 126 L.Ed.2d 135 (1993). The district court must “indulge all presumptions in favor of the validity of the jury’s verdict,” and “should refrain from interfering with a jury’s verdict unless it is clear that the jury reached a seriously erroneous result.” Brooks v. Toyotomi Co., 86 F.3d 582, 588 (6th Cir.1996) (internal" } ]

[ { "docid": "23589709", "title": "", "text": "matter asserted.” Fed.R.Evid. 801(c). A prior judgment is therefore hearsay to the extent that it is offered to prove the truth of the matters asserted in the judgment. A prior judgment is not hearsay, however, to the extent that it is offered as legally operative verbal conduct that determined the rights and duties of the parties. See United States v. Pang, 362 F.3d 1187, 1192 (9th Cir.2004). Although Rule 803 contains exceptions for certain kinds of judgments, such as judgments of previous felony convictions and judgments as to personal, family, or general history or boundaries, see Fed.R.Evid. 803(22) & (23), civil judgments do not fit comfortably into any hearsay exception. Boulware argues that the state court judgment fits the exceptions set forth in Rule 803(14) and (16). The first of these exceptions concerns records of documents that affect an interest in property, and reads as follows: Records of documents affecting an interest in property. The record of a document purporting to establish or affect an interest in property, as proof of the content of the original recorded document and its execution and delivery by each person by whom it purports to have been executed, if the record is a record of a public office and an applicable statute authorizes the recording of documents of that kind in that office. Fed.R.Evid. 803(14). In United States v. Perry, 857 F.2d 1346 (9th Cir.1988), a criminal tax prosecution, the government introduced testimony regarding a bankruptcy court’s determination that certain transfers of property were fraudulent conveyances. Id. at 1351. We held that admission of the testimony was not plain error: The challenged testimony was not, as Perry urges, offered as substantive proof of a fraudulent scheme. A review of the record shows that the testimony was offered only to show that Perry was the true owner of certain properties nominally owned by his relatives. See Greycas, Inc. v. Proud, 826 F.2d 1560, 1567 (7th Cir.1987) ... (“a judgment, insofar as it fixes property rights, should be admissible as the official record of such rights, just like other documents of title”). This evidence, in turn," } ]

[ { "docid": "2168093", "title": "", "text": "officials at the scene of a crime or the apprehension of the accused and not “records of routine, nonadversarial matters” made in a nonadversarial setting. Id. at 793. More recently, in United States v. Gilbert, 774 F.2d 962, 965 (9th Cir.1985), we held that a criminologist’s notations on a fingerprint card were admissible under Rule 803(8)(B). We observed that the report of an examination of a latent fingerprint was routine and “ministerial, objective, and nonevaluative.” Id. at 965. Similarly, the calibration report of a breathalyzer maintenance operator is a routine act far removed from the adversarial nature of the on-the-scene investigative report of a crime by a police officer whose perceptions might be clouded and untrustworthy. See United States v. Hernandez-Rojas, 617 F.2d at 535. (The law enforcement exception is inapplicable to an immigration officer’s notation in a warrant of deportation.) The trial court did not abuse its discretion in admitting the calibration certificate. The court’s error in relying on Washington law in overruling Wilmer’s objection was harmless because the evidence was admissible under Rule 803(8)(B). Wilmer also claims that his sixth amendment right to confrontation was violated by the failure of the government to call the breathalyzer maintenance operator. Wilmer correctly notes that the prosecution failed to show that the witness was unavailable. We have determined that the calibration certificate was admissible under Rule 803(8)(B). A hearsay statement admissible under a firmly rooted exception to the hearsay rule may nevertheless violate the confrontation clause. Dutton v. Evans, 400 U.S. 74, 82, 91 S.Ct. 210, 216, 27 L.Ed.2d 213 (1970); United States v. Huber, 772 F.2d 585, 588 (9th Cir.1985); United States v. Bernard S., 795 F.2d 749, 754 (9th Cir.1986). In Ohio v. Roberts, 448 U.S. 56, 66, 100 S.Ct. 2531, 2539, 65 L.Ed.2d 597 (1980), the Supreme Court stated: “[W]hen a hearsay declarant is not present for cross-examination at trial, the Confrontation Clause normally requires a showing that he is unavailable.” In United States v. Inadi, — U.S. -, 106 S.Ct. 1121, 89 L.Ed.2d 390 (1986), the Supreme Court instructed that the unavailability requirement discussed in Roberts was" }, { "docid": "2168092", "title": "", "text": "court erred in applying Rule 4.09 of the Justice Court Criminal Rules. Under Rule 52 of the Federal Rules of Criminal Procedure, we may disregard any error which does not affect substantial rights. Fed.R.Crim.P. 52. The court’s error was harmless because evidence of the maintenance officer’s calibration certificate was admissible under Rule 803(8). Wilmer argues that the calibration report was not admissible as a public record under Rule 803(8)(B) because reports of a breathalyzer maintenance operator are excluded from this exception to the hearsay rule. He relies on United States v. Oates, 560 F.2d 45 (2d Cir.1977) for this proposition. We expressly rejected adoption of the reasoning set forth in Oates in United States v. Hemandez-Rojas, 617 F.2d 533, 534-35 (9th Cir.), cert. denied, 449 U.S. 864, 101 S.Ct. 170, 66 L.Ed.2d 81 (1980). In United States v. Orozco, 590 F.2d 789 (9th Cir.), cert. denied, 442 U.S. 920, 99 S.Ct. 2845, 61 L.Ed.2d 288 (1979), we held that the exclusionary provisions of Rule 803(8)(B) were intended to apply to observations made by law enforcement officials at the scene of a crime or the apprehension of the accused and not “records of routine, nonadversarial matters” made in a nonadversarial setting. Id. at 793. More recently, in United States v. Gilbert, 774 F.2d 962, 965 (9th Cir.1985), we held that a criminologist’s notations on a fingerprint card were admissible under Rule 803(8)(B). We observed that the report of an examination of a latent fingerprint was routine and “ministerial, objective, and nonevaluative.” Id. at 965. Similarly, the calibration report of a breathalyzer maintenance operator is a routine act far removed from the adversarial nature of the on-the-scene investigative report of a crime by a police officer whose perceptions might be clouded and untrustworthy. See United States v. Hernandez-Rojas, 617 F.2d at 535. (The law enforcement exception is inapplicable to an immigration officer’s notation in a warrant of deportation.) The trial court did not abuse its discretion in admitting the calibration certificate. The court’s error in relying on Washington law in overruling Wilmer’s objection was harmless because the evidence was admissible under Rule" }, { "docid": "3689449", "title": "", "text": "use the benefits, and are given suggested methods for handling excess funds and lump sum payments. Although Berry argued that the government did not establish he received the mailed information, absent proof to the contrary, the presumption is that the addressee received the mailed documents. See Mahon v. Credit Bureau of Placer County, Inc., 171 F.3d 1197, 1202 (9th Cir.1999), as amended. B. The District Court Acted Within Its Discretion When It Admitted Computer-Generated Records Into Evidence. Berry asserts that his conviction should be reversed because the district court erroneously admitted computer records from the SSA under Fed.R.Evid. 803(8), the public records exception to the hearsay rule. Berry specifically contends that his rights under the Confrontation Clause were violated because the SSA application is or potentially could be adversarial in nature. Berry cites to this circuit’s decision in United States v. Orellana-Blanco, 294 F.3d 1143 (9th Cir.2002) to support this proposition. In sum, Berry argues that the SSA application is the equivalent of a police report. However, Berry’s argument is unpersuasive. “Business and public records are generally admissible absent confrontation not because they qualify under an exception to the hearsay rules, but because — having been created for the administration of an entity’s affairs and not for the purpose of establishing or proving some fact at trial — they are not testimonial.” Melendez-Diaz v. Massachusetts, 557 U.S. 305, 309, 129 S.Ct. 2527, 2539-40, 174 L.Ed.2d 314 (2009). “[W]hen the evidence in question is nontestimonial, confrontation is not necessarily required....” Marguet-Pillado, 560 F.3d at 1085 (citation omitted). Documents or records that are not created in anticipation of litigation, but because of “a routine, objective, cataloging of an unambiguous factual matter” are deemed nontestimonial. Id. (citation omitted). Berry’s contention is that, similar to the facts in Orellana^-Blanco, the SSA applica tion contained adversarial language included in anticipation of litigation. However, SSA employees testified that a SSA interviewer completes the application as part of a routine administrative process. In contrast, the form in Orellanar-Blanco was signed under oath and completed by law enforcement personnel. See Orellana-Blanco, 294 F.3d at 1150. The dissent completely" }, { "docid": "22436664", "title": "", "text": "define what constitutes testimonial evidence. Instead, the Court noted that “[w]e leave for another day any effort to spell out a comprehensive definition of ‘testimonial.’ Whatever else the term covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations.” Crawford, 124 S.Ct. at 1374. We conclude that the warrant of deportation is nontestimonial because it was not made in anticipation of litigation, and because it is simply a routine, objective, cataloging of an unambiguous factual matter. In United States v. Hernandez-Rojas, 617 F.2d 533, 535 (9th Cir.1980), we held that a warrant of deportation “has none of the features of the subjective report made by a law enforcement official in an on-the-scene investigation, which investigative reports lack sufficient guarantees of trustworthiness because they are made in an adversary setting and likely to be used in litigation.” Indeed, “[t]he notation that [defendant] was deported to Mexico was a ministerial, objective observation, which has inherent reliability because of the Government’s need to keep accurate records of the movement of aliens.” Id. Additionally, in United States v. Contreras, 63 F.3d 852, 857 (9th Cir.1995), we echoed this reasoning, holding that “the notation on an 1-205 form [warrant of deportation] indicating that an alien has left the country is a routine, objective, indeed mechanical recording of an unambiguous factual matter.” In this sense, the warrant of deportation is no different than a birth certificate or any other public record which constitutes the routine cataloguing of an unambiguous factual matter. Surely Craiuford did not mean to require the doctor or nurse who actually filled out a birth certificate to testify as to its veracity- We hold that the warrant of deportation in this case is nontestimonial and thus admissible. Accordingly, the government provided sufficient evidence of physical removal. C. Alienage Bahena-Cardenas argues that there was insufficient evidence for a jury to find beyond a reasonable doubt that he was not a United States citizen. “This sufficiency-of-the-evidence challenge can succeed only if, viewing the evidence in the light most favorable" }, { "docid": "23023372", "title": "", "text": "are likewise non-testimonial. As not ed in Melendez-Diaz, “[b]usiness and public records are generally admissible absent confrontation” because “having been created for the administration of an entity’s affairs and not for the purpose of establishing or proving some fact at trial ... they are not testimonial.” 557 U.S. at 324, 129 S.Ct. 2527. Unlike the analysts’ certificates in Melendez-Diaz, the immigration records at issue in Orozco-Acosta were not “prepared specifically for use at [the defendant’s] trial,” id., and therefore we correctly determined that the ordinary contents of those records were non-testimonial. 607 F.3d at 1163. Therefore, we reject this argument as well. 2 We now apply these principles to Rojas’s contention that the district court erred in admitting statements from records in his A-file. Rojas challenges two statements in the 1998 warrant of removal: (1) that he entered the United States on December 6, 1991 and (2) that he was subject to removal by order of an immigration judge. In addition, he objects to “implied assertions” that the photograph and fingerprint attached to the warrant belong to him. Because a warrant of removal is not made in anticipation of criminal litigation, see Orozco-Acosta, 607 F.3d at 1163, and the statements Rojas challenges are the ordinary contents of a warrant of removal, we conclude that they are non-testimonial. Rojas also challenges statements contained in the Notice of Intent/Decision to Reinstate Prior Order. In particular, he challenges the notice’s statements that he was an unlawfully admitted alien, that he was subject to removal, that he was ineligible for relief, and that he was ordered removed to Mexico. Like a warrant of removal, a Notice of Intent/Decision to Reinstate Prior Order is non-testimonial. Immigration officers complete these notices to comply with an agency regulation that requires the government to apprise the alien of its determination that the alien is removable and to give the alien an opportunity to contest the government’s determination. See 8 C.F.R. § 241.8. Thus, although there is a “possibility,” Orozco-Acosta, 607 F.3d at 1164, that the contents of these notices could be used in a criminal prosecution, the objective" }, { "docid": "22436663", "title": "", "text": "Mr. Bahena leaving the country.” Before Crawford, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177, the admissibility of the warrant of deportation was clearly established in this circuit. See United States v. Contreras, 63 F.3d 852, 857 (9th Cir.1995) (holding that “[t]he I-205 form [warrant of deportation] is hearsay, but is admissible under the public records exception to the hearsay rule”); see also United States v. Hernandez-Rojas, 617 F.2d 533 (9th Cir.1980). Bahena-Cardenas argues that after the Supreme Court’s decision in Crawford, the warrant of deportation is no longer admissible. We disagree. In Crawford, the Supreme Court held that “the government cannot introduce testimonial evidence against a criminal defendant where the declarant is unavailable at trial and there was no opportunity for cross-examination at the time the prior testimony was given.” United States v. Wilmore, 381 F.3d 868, 871 (9th Cir.2004) (emphasis added) (citing Crawford, 124 S.Ct. at 1374); see Parle v. Runnels, 387 F.3d 1030, 1037 (9th Cir.2004) (holding that Crawford does not apply to non-testimonial hearsay). However, the Supreme Court declined to define what constitutes testimonial evidence. Instead, the Court noted that “[w]e leave for another day any effort to spell out a comprehensive definition of ‘testimonial.’ Whatever else the term covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations.” Crawford, 124 S.Ct. at 1374. We conclude that the warrant of deportation is nontestimonial because it was not made in anticipation of litigation, and because it is simply a routine, objective, cataloging of an unambiguous factual matter. In United States v. Hernandez-Rojas, 617 F.2d 533, 535 (9th Cir.1980), we held that a warrant of deportation “has none of the features of the subjective report made by a law enforcement official in an on-the-scene investigation, which investigative reports lack sufficient guarantees of trustworthiness because they are made in an adversary setting and likely to be used in litigation.” Indeed, “[t]he notation that [defendant] was deported to Mexico was a ministerial, objective observation, which has inherent reliability because of the Government’s need" }, { "docid": "22087157", "title": "", "text": "“hearsay” as “a statement, other than one made by the declarant while testifying at a trial or hearing, offered in evidence to prove the truth of the matter asserted”). Likewise, admission of the photocopy of the Mexican voter identification card did not violate the Confrontation Clause. The Confrontation Clause states that “[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him .... ” U.S. Const. amend. VI. The applicability of this provision is limited “to “witnesses’ against the accused — in other words, those who “bear testimony.’ ” Crawford v. Washington, 541 U.S. 36, 51, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). As such, the Confrontation Clause applies only to testimonial statements. Id. While the Supreme Court chose in Crawford not to define precisely what is and is not a testimonial statement, it is clear that the photocopy of the identification card does not qualify as such because it in no way involves a witness bearing testimony. See id. at 51, 56, 124 S.Ct. 1354. Accordingly, the district court did not abuse its discretion when it admitted the photocopy of the Mexican voter identification card. The admission of the computer printouts was also proper. While the computer printouts conceivably could be viewed as containing hearsay statements (statements regarding the passengers’ deportations from the United States), they are nevertheless admissible under Fed. R.Evid. 803(8), which permits the introduction of public records and reports containing hearsay statements. Fed.R.Evid. 803(8) covers: Public records and reports. Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth (A) the activities of the office or agency, or (B) matters observed pursuant to duty to report, excluding, however, in criminal cases matters observed by police officers and other law enforcement personnel, or (C) in civil actions and proceedings and against the Government in criminal cases, factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness. Under Rule 803(8), records, including computer records, made by a public agency" }, { "docid": "22436662", "title": "", "text": "a reasonable doubt that BahenaCardenas physically left the country sometime between the time he was ordered deported and the time he was found in the United States. United States v. Romo-Romo, 246 F.3d 1272, 1275-76 (9th Cir.2001). Indeed, “an alien must actually leave the country before he can be convicted under § 1326.” Id. Bahena-Cardenas argues that the government failed to provide sufficient evidence of physical removal because the only evidence showing that he actually left the United States after he was ordered deported was inadmissible hearsay under Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). To prove physical removal, the government offered into evidence a warrant of deportation, signed by an immigration official. The form included a statement that the officer who signed the document “witnessed” Bahena-Cardenas’ departure. At trial, a second immigration official testified that it was standard practice for immigration officers to complete and sign a warrant of deportation as they witnessed an alien’s deportation. This second immigration officer admitted, however, that he did not “personally observe Mr. Bahena leaving the country.” Before Crawford, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177, the admissibility of the warrant of deportation was clearly established in this circuit. See United States v. Contreras, 63 F.3d 852, 857 (9th Cir.1995) (holding that “[t]he I-205 form [warrant of deportation] is hearsay, but is admissible under the public records exception to the hearsay rule”); see also United States v. Hernandez-Rojas, 617 F.2d 533 (9th Cir.1980). Bahena-Cardenas argues that after the Supreme Court’s decision in Crawford, the warrant of deportation is no longer admissible. We disagree. In Crawford, the Supreme Court held that “the government cannot introduce testimonial evidence against a criminal defendant where the declarant is unavailable at trial and there was no opportunity for cross-examination at the time the prior testimony was given.” United States v. Wilmore, 381 F.3d 868, 871 (9th Cir.2004) (emphasis added) (citing Crawford, 124 S.Ct. at 1374); see Parle v. Runnels, 387 F.3d 1030, 1037 (9th Cir.2004) (holding that Crawford does not apply to non-testimonial hearsay). However, the Supreme Court declined to" }, { "docid": "22174279", "title": "", "text": "the aliens’ 1-213 forms (taken from their A-Files) on two grounds: first, because the evidence was impermissible hearsay under the Federal Rules of Evidence; and, second, because it amounted to testimonial hearsay admitted in violation of Caraballo’s Sixth Amendment confrontation rights. He claims that any evidence the government introduced through the 1-213 forms was testimonial in nature because the declarants, the eleven aliens, did not testify at trial. We remain unpersuaded. We review evidentiary rulings for an abuse of discretion. United States v. Hawkins, 905 F.2d 1489, 1493 (11th Cir.1990). However, we review “de novo the question of whether hearsay statements are ‘testimonial’ for purposes of the Confrontation Clause.” United States v. Lamons, 532 F.3d 1251, 1261 n. 15 (11th Cir.2008). The partial 1-213 forms were not admitted in violation of the Federal Rules of Evidence. Hearsay is generally defined as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Fed.R.Evid. 801(c). “Hearsay is inadmissible unless the statement is not hearsay as provided by Rule 801(d) or falls into one of the hearsay exceptions.” United States v. Baker, 432 F.3d 1189, 1203 (11th Cir.2005). There is no dispute that the 1-213 forms constitute hearsay. However, they fall squarely within an exception to hearsay. The Rules of Evidence contain an explicit exception for public records and reports containing “matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, however, in criminal cases matters observed by police officers and other law enforcement personnel.” Fed.R.Evid. 803(8)(B). We have already held that immigration files contained in an A-File, a category into which the 1-213 form falls, constitute admissible hearsay, because the “admission of routinely and mechanically kept I.N.S. records, such as the 1-194 form and warrants of deportation, does not violate Rule 803(8)(B).” United States v. Agustino-Hernandez, 14 F.3d 42, 43 (11th Cir.1994); see also Renteria-Gonzalez v. I.N.S., 322 F.3d 804, 817 n. 16 (5th Cir.2002) (finding that the 1-213 form falls under the public records exception" }, { "docid": "21444595", "title": "", "text": "have found that the record evidence proved that the defendant lied about a material matter, as required by California's perjury statute. In discussing why the jury nonetheless returned a guilty verdict, thereby violating the defendant's due process rights, we highlighted testimony by a superior court judge, who served as an “ ‘expert’ on materiality” and told the jury how the defendant’s statement, in his view, would have been material. Chein, 373 F.3d at 989. We stated that \"the likely impact on the jury of a sitting state court judge pronouncing the existence of an essential element of a crime, while vigorously denouncing the defendant and his credentials, is difficult to ignore.... [W]e note that this highly unusual testimony at least explains why the jury returned a guilty verdict on sparse, constitutionally insufficient evidence.” Id. at 989 n. 6. . We reject, however, Sine's terse claim that the use of this hearsay violated the Confrontation Clause. Only testimonial out-of-court statements raise Confrontation Clause concerns. Whorton v. Bockting, — U.S. —, 127 S.Ct. 1173, 1183, 167 L.Ed.2d 1 (2007) (citing Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004)). Although he cites Crawford in passing, Sine does not argue that Judge Carr's statements were testimony, with good reason: There is no reason to believe that Judge Carr wrote the order in anticipation of Sine’s prosecution for fraud, so his order was not testimonial. See United States v. Ballesteros-Selinger, 454 F.3d 973, 974-75 (9th Cir.2006) (holding that an immigration judge's deportation order was nontestimonial because it “was not made in anticipation of future litigation”). . The government argues that its purpose in asking defense witnesses about the order was not to establish the truth of the findings in the order. Rather, posits the government, the reason for cross-examining witnesses with the order was to establish that they were not fully informed about Sine’s efforts and were therefore less credible. This rationale does not, however, explain the questioning of Sine himself. We therefore need not and do not decide whether the government’s non-hearsay rationale stands up with regard to the" }, { "docid": "22240022", "title": "", "text": "reasonable doubt that OrozcoAcosta, prior to being apprehended, had in fact been physically removed from the United States. See, e.g., United States v. Estrada-Eliverio, 583 F.3d 669, 671 (9th Cir.2009). As part of its proof, the government introduced the warrant of removal, which both ordered that Orozco-Acosta be removed from the United States and also documented Orozco-Acosta’s physical removal to Mexico. We review de novo whether the admission of this warrant violated Orozco-Acosta’s confrontation right. See, e.g., United States v. Orellana-Bianco, 294 F.3d 1143, 1148 (9th Cir.2002). Resolution of this issue is controlled by our previous decision in United States v. Bahena-Cardenas, 411 F.3d 1067 (9th Cir.2005). In Bahena-Cardenas, we held, post-Crawford, that a warrant of removal is “nontestimonial because it [is] not made in anticipation of litigation, and because it is simply a routine, objective, cataloguing of an unambiguous factual matter.” Id. at 1075. We reasoned that warrants of removal have “inherent reliability because of the Government’s need to keep accurate records of the movement of aliens.” Id. (quoting United States v. Hernandez-Rojas, 617 F.2d 533, 535 (9th Cir.1980)) (internal quotation mark omitted). We reject Orozeo-Acosta’s contention that Melendez-Diaz has so undermined Bahena-Cardenas that we should depart from its holding. See Miller v. Gammie, 335 F.3d 889, 892-93 (9th Cir.2003) (en banc) (explaining that a three-judge panel should consider itself bound by an intervening higher authority that is “clearly irreconcilable with the reasoning or theory” of a prior holding of this court). Orozco-Aeosta is correct that, post-Melendez-Diaz, neither the warrant’s routine, objective nature nor its status as an official record necessarily immunizes it from confrontation. See Melendez-Diaz, 129 S.Ct. at 2536-40. Bahena-Cardenas’s holding that warrants of removal are nontestimonial, however, also relied upon the fact that warrants of removal are “not made in anticipation of litigation,” but rather to record the movements of aliens. 411 F.8d at 1075. Melendez-Diaz explained that “[bjusiness and public records are generally admissible absent confrontation ... because — having been created for the administration of an entity’s affairs and not for the purpose of establishing or proving some fact at trial — they are" }, { "docid": "22240025", "title": "", "text": "in that case were prepared solely for use at the defendant’s trial. See id.; see also id. at 2539 (the certificates’ “sole purpose” was “providing evidence against a defendant”); id. at 2540 (the certificates were “prepared specifically for use at petitioner’s trial”). Unlike the certificates of analysis in Melendez-Diaz, neither a warrant of removal’s sole purpose nor even its primary purpose is use at trial. A warrant of removal must be prepared in every case resulting in a final order of removal, see 8 C.F.R. § 241.2; see also 241.3, and nothing in the record or judicially noticeable suggests that more than a small fraction of these warrants ultimately are used in immigration prosecutions. Accord United States v. Burgos, 589 F.3d 641, 645 (7th Cir.2008) (“The [warrant of removal’s] primary purpose is to memorialize the deportation, not to prove facts in a potential future criminal prosecution.”); United States v. Torres-Villalobos, 487 F.3d 607, 613 (8th Cir.2007) (“Warrants of deportation are produced under circumstances objectively indicating that their primary purpose is to maintain records concerning the movements of aliens and to ensure compliance with orders of deportation, not to prove facts for use in future criminal prosecutions.”). Melendez-Diaz cannot be read to establish that the mere possibility that a warrant of removal — or, for that matter, any business or public record— could be used in a later criminal prosecution renders it testimonial under Crawford. Accord United States v. Mendez, 514 F.3d 1035, 1046 (10th Cir.2008) (“That a piece of evidence may become ‘relevant to later criminal prosecution’ does not automatically place it within the ambit of ‘testimonial.’ ... [Otherwise,] any piece of evidence which aids the prosecution would be testimonial and subject to Confrontation Clause scrutiny.”). We accordingly reject Orozco-Acosta’s argument that Melendez-Diaz renders warrants of removal testimonial. In sum, nothing in Melendez-Diaz is clearly irreconcilable with Bahena-Cardenas’s holding that a warrant of removal is “nontestimonial because it was not made in anticipation of litigation.” 411 F.3d at 1075. We therefore are not at liberty to depart from that holding. We conclude that admission of the warrant of removal into" }, { "docid": "22265912", "title": "", "text": "cases because of the adversarial nature of the confrontation between the police and the defendant in criminal cases.”). In this case, the questioning of Macias-Limon by INS Inspector Anderson took place in the INS Fraud Office soon after authorities stopped Pena-Gutierrez’s car and found Macias-Limon hidden inside, and it took place before the INS decided what, if any, action to take regarding this incident. See Wilmer, 799 F.2d at 501. Moreover, Macias-Limon was not subjected to objective or scientific testing, or even the standardized administrative questioning asked of everyone at a border crossing. Inspector Anderson was conducting a criminal interrogation. See Wigglesworth v. Oregon, 49 F.3d 578, 580-81 (9th Cir.1995) (noting that “the objective results of a routine test” would be admissible under the public-records exception while a report “dependent upon some subjective evaluation” would not); United States v. Hernandez-Rojas, 617 F.2d 533, 535 (9th Cir.1980) (stating that “the subjective report made by a law enforcement official in an on-the-scene investigation ... lack[s] sufficient guarantees of trustworthiness because [it is] made in an adversary setting [and is] likely to be used in litigation”). Therefore, we hold that the district court erred under Federal Rules of Evidence 802 and 803(8) in admitting into evidence “the on-the-scene investigative report of a crime by a[n INS] officer whose perceptions might be clouded and untrustworthy.” Wilmer, 799 F.2d at 501. B. Even if we were to find the report itself admissible, the statement of the deported witness it contained was inadmissible hearsay. See Sana v. Hawaiian Cruises, Ltd., 181 F.3d 1041, 1045 (9th Cir.1999) (stating that for hearsay-within-hearsay to be admissible, “each layer of hearsay must satisfy an exception to the hearsay rule”). The district court admitted this statement after finding MaciasLimon “unavailable” under Rule 804(a)(5) of the Federal Rules of Evidence, see Fed. R.Evid. 804(a)(5), and although the district court did not specify which exception the statement satisfied under Rule 804(b), see id. 804(b) (listing the types of hearsay that “are not excluded by the hearsay rule if the declarant is unavailable as a witness”), we have previously noted that a declarant’s “statement" }, { "docid": "10891384", "title": "", "text": "ordinarily arises about their truth.” Id. Considering that history, it would be natural to expect the law enforcement exception to cover only those records whose origins call into question their reliability. Indeed, we have recognized that “the purpose of the law enforcement exception is to ‘exclude observations made by officials at the scene of the crime or apprehension, because observations made in an adversarial setting are less reliable than observations made by public officials in other situations.’ ” Lopez, 762 F.3d at 861 (quoting United States v. Hernandez-Rojas, 617 F.2d 533, 535 (9th Cir. 1980)). But “records of routine, nonad-versarial matters made in a nonadversarial setting, reflecting ministerial, objective observations” of law enforcement personnel, Orellana-Blanco, 294 F.3d at 1150 (internal quotation marks and footnote omitted), are admissible in a criminal case, because such records are made under conditions that do not call into question their reliability, United States v. Orozco, 590 F.2d 789, 793-94 (9th Cir. 1979). Consistent with that narrow understanding of the law enforcement exception, we have held that several different types of records reflecting the observations of law enforcement personnel are admissible in criminal cases. See id. (holding that a record made by a customs inspector, stating that a car with a particular license plate had crossed the border at a particular time, was admissible as a public record); see also Hernandez-Rojas, 617 F.2d at 534-35 (holding that a warrant of deportation, which reflected an immigration officer’s observation that an alien had been deported, was admissible as a public record). We now hold that a return of service, such as the one in this case, is admissible as a public record under Rule 803(8)(A)(ii). The return of service recorded the completion of the largely ministerial task of serving Defendant with notice of a hearing. The observation reflected in the return of service — that service had taken place — was an objective one, not the type of “subjective observation[ ], summar[y], opinion[,] [or] conclusion[ ] of law enforcement personnel” that Congress intended to exclude from the scope of the public records exception. Orellana-Blanco, 294 F.3d at 1150." }, { "docid": "23600501", "title": "", "text": "databases. Valdovinos-Mendez had an adequate opportunity to cross-examine Agent Wooddy and there was no evidence that he actually applied for permission to re-enter. See id. We hold that admission of the CNR was harmless. See id. We likewise hold that admission of the challenged A-file documents did not violate Valdovinos-Mendez’s Sixth Amendment rights because the documents were non-testimonial in nature. See United States v. Bahena-Cardenas, 411 F.3d 1067, 1075 (9th Cir.2005), cert. denied, 547 U.S. 1056, 126 S.Ct. 1652, 164 L.Ed.2d 398 (2006) (warrant of removal is non-testimonial); United States v. Ballesteros-Selinger, 454 F.3d 973, 975 (9th Cir.2007) (immigration judge’s memoranda of oral decisions is non-testimonial). The Warning to Alien Ordered Removed or Deported, like the Warrant of Removal, is also non-testimonial because it is prepared routinely and “is not made in anticipation of litigation.” Orozco-Acosta, 607 F.3d at 1163. The Warning is a “standardized form” with no personalized content or fae tual findings. See Ballesteros-Selinger, 454 F.3d at 975. We conclude that admission of these documents did not violate Valdovinos-Mendez’s Sixth Amendment right to confrontation. B. Valdovinos-Mendez urges us to find that the district court erred under the best evidence rule when it admitted the testimony of Agent Wooddy as to her search of the databases and the absence of any record of Valdovinos-Mendez applying for permission to re-enter the United States. We rejected these arguments in United States v. Diaz-Lopez, 625 F.3d 1198, 1200, 1202-03 (9th Cir.2010) (holding that the agent’s testimony about databases “laid a sufficient foundation for this relevant evidence to be admissible” and the best evidence rule does not apply to an agent’s testimony about his search of databases). The best evidence rule applies when the contents of a writing are sought to be proved, not when records are searched “and found not to contain any reference to the designated matter.” Fed. R.Evid. 1002 Advisory Committee’s Note. Here, Agent Wooddy testified only to the absence of records, not to the contents of records sought to be proved. Moreover, public records are an exception to the hearsay rule and testimony from a qualified agent is permitted" }, { "docid": "23600500", "title": "", "text": "DISCUSSION A. We first address Valdovinos-Mendez’s Sixth Amendment claims. The government concedes that the admission of the CNR at trial violated Valdovinos-Mendez’s right to confrontation. See Melendez-Diaz v. Massachusetts, - U.S. -, 129 S.Ct. 2527, 2539, 174 L.Ed.2d 314 (2009). We have already held that admission of a CNR is testimonial hearsay, requiring confrontation. See United States v. Orozco-Acosta, 607 F.3d 1156, 1161 (9th Cir.2010). If the evidence is improperly admitted, “ ‘we must remand for a new trial unless the government demonstrates beyond a reasonable doubt that admission of the evidence was harmless.’ ” Id. (quoting United States v. Norwood, 603 F.3d 1063, 1068 (9th Cir.2010)); see also Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). We find that standard met because the CNR was cumulative of other evidence demonstrating Valdovinos-Mendez’s lack of permission to re-enter. See Orozco-Acosta, 607 F.3d at 1162. Agent Wooddy testified that she did not find evidence of permission to re-enter in Valdovinos-Mendez’s A-file or from her own search of the C.I.S. and C.L.A.I.M.S. databases. Valdovinos-Mendez had an adequate opportunity to cross-examine Agent Wooddy and there was no evidence that he actually applied for permission to re-enter. See id. We hold that admission of the CNR was harmless. See id. We likewise hold that admission of the challenged A-file documents did not violate Valdovinos-Mendez’s Sixth Amendment rights because the documents were non-testimonial in nature. See United States v. Bahena-Cardenas, 411 F.3d 1067, 1075 (9th Cir.2005), cert. denied, 547 U.S. 1056, 126 S.Ct. 1652, 164 L.Ed.2d 398 (2006) (warrant of removal is non-testimonial); United States v. Ballesteros-Selinger, 454 F.3d 973, 975 (9th Cir.2007) (immigration judge’s memoranda of oral decisions is non-testimonial). The Warning to Alien Ordered Removed or Deported, like the Warrant of Removal, is also non-testimonial because it is prepared routinely and “is not made in anticipation of litigation.” Orozco-Acosta, 607 F.3d at 1163. The Warning is a “standardized form” with no personalized content or fae tual findings. See Ballesteros-Selinger, 454 F.3d at 975. We conclude that admission of these documents did not violate Valdovinos-Mendez’s Sixth Amendment right to" }, { "docid": "20381622", "title": "", "text": "allow the introduction against the accused of a police officer’s report without producing the officer as a witness subject to cross-examination.” 2 McCormick on Evidence § 296 (6th ed.2006). But there is more to the exception than a concern with unavailability of cross-examination. There is also a concern that reports by law enforcers are less reliable than reports by other public officials because of law enforcers’ adversary relation to a defendant against whom the records are sought to be used. United States v. Rosa, 11 F.3d 315, 332-33 (2d Cir.1993); United States v. Hernandez-Rojas, 617 F.2d 533, 535 (9th Cir.1980). Moreover, the police officer’s key testimony in this case' — that the prosecutor had dismissed the case because he didn’t have an informant who could testify — was hearsay; he was testifying to the truth of what someone else, the prosecutor, had told him. All this is of no moment, however, because the key document is the order dismissing the criminal complaint, and although it does mention the reason the prosecutor gave for asking the court to dismiss the complaint, the order is a public record of the court’s reason (the informant’s death) rather than a record of observations by law enforcement officers. See United States v. Lechuga, 975 F.2d 397, 398-99 (7th Cir.1992). The case is thus like United States v. Hernandez-Rojas, supra, which held that the law-enforcement exception did not bar the admission into evidence of a warrant of deportation. The purpose of the exception — to exclude records created in an adversarial setting and therefore likely to be tendentious — was inapplicable to the notation that the defendant was to be deported to Mexico. That was “a ministerial, objective observation, which has inherent reliability because of the Government’s need to keep accurate records of the movement of aliens. It has none of the features of the subjective report made by a law enforcement official in an on-the-scene investigation, which investigative reports lack sufficient guarantees of trustworthiness because they are made in an adversary setting and likely to be used in litigation.” 617 F.2d at 535. Furthermore, the" }, { "docid": "23023374", "title": "", "text": "circumstances indicate that, like warrants of removal, their primary purpose is to effect removals, not to prove facts at a criminal trial. See Melendez-Diaz, 557 U.S. at 324, 129 S.Ct. 2527. Furthermore, the specific statements that Rojas challenges are the ordinary contents of a Notice of Intent/Decision to Reinstate Prior Order. To reinstate a prior removal order, an immigration officer must determine “[wjhether the alien has been subject to a prior order of removal,” “whether the alien is in fact an alien who was previously removed,” and “[w]hether the alien unlawfully reentered the United States.” § 241.8(a). And, as mentioned previously, the government is required to apprise the alien of this determination and give the alien an opportunity to contest this determination. Id. Because the challenged statements are required by regulation for purposes unrelated to future criminal litigation and comprise the ordinary contents of this notice, they are not testimonial. Finally, Rojas challenges the IJ’s written order from the 1998 proceedings. We have previously held that the statements in an IJ’s written order are not non-testimonial, Valdovinos-Mendez, 641 F.3d at 1034-35, because the orders are not made in anticipation of future criminal litigation, but instead are “made to record the IJ’s decision regarding [the alien’s] deporta tion.” United States v. Ballesteros-Selinger, 454 F.3d 973, 975 (9th Cir.2006). C We next turn to Rojas’s arguments that the district court made both procedural and substantive errors in sentencing. 1 Rojas contends that the district court erred in denying him a two-point downward adjustment for acceptance of responsibility under § 3E 1.1(a) of the Sentencing Guidelines. He claims that the district court failed to acknowledge that he admitted all the essential elements of the charged offense, and instead improperly relied on the fact that he exercised his constitutional right' to go to trial. We reject this argument. The Sentencing Guidelines provide that a district court may grant a two-level downward adjustment to a defendant who “clearly demonstrates acceptance of responsibility for his offense.” U.S.S.G. § 3El.l(a). According to the Guidelines, in determining whether a defendant qualifies for acceptance of responsibility, a district court" }, { "docid": "23059683", "title": "", "text": "reversal, the defendant must show that the district court abused its discretion, and that “the error resulted in prejudice to substantial rights.” United States v. Amlani, 111 F.3d 705, 712 (9th Cir.1997). No plain error appears with respect to his first contention, that he was not given the questions or answers to the polygraph examination. Mitchell did move for a mistrial when the government sought to introduce anatomical drawings to aid in the medical examiner’s testimony. However, counsel acknowledged that he had been told that diagrams were being made and the district court offered a break, which counsel accepted. In these circumstances, Mitchell’s substantial rights were not affected, nor did the court abuse its discretion in denying a mistrial. C Mitchell finds various violations of the Confrontation Clause in the record. We do not. We review the district court’s construction of a hearsay rule de novo, and its exclusion of evidence under a hearsay rule for abuse of discretion. United States v. Ortega, 203 F.3d 675, 682 (9th Cir.2000). Alleged violations of the Confrontation Clause are reviewed de novo. United States v. Ballesteros-Selinger, 454 F.3d 973, 974 n. 2 (9th Cir.2006). i First, Mitchell was not allowed on cross-examination of Agents Kirk and Duncan to elicit exculpatory statements that he made during interviews to the effect that he had cooperated with law enforcement, that he had denied killing anyone, and that he and Orsinger had been drinking in Gallup. These statements were inadmissible hearsay; as Mitchell was attempting to introduce them himself, they were not party-opponent admissions, nor did the fact that they were made in a more broadly self-inculpatory confession bring them within the statement-against-interest exception. Ortega, 203 F.3d at 682 (citing Williamson v. United States, 512 U.S. 594, 599, 114 S.Ct. 2431, 129 L.Ed.2d 476 (1994)). Mitchell asks us to ignore Ortega, but this panel cannot do so. He also argues that this case should be distinguished because it involves capital punishment, but offers no authority in support of the claim that the hearsay rules operate differently in capital cases. Additionally, he submits that Ortega has been undermined" }, { "docid": "23600496", "title": "", "text": "ORDER The opinion filed February 15, 2011 [634 F.3d 1049] is amended as follows: Slip Opinion, page 2485, lines 25-26 [634 F.3d at 1053]: Delete the Orozco-Acosta citation and its parenthetical. On the same page, line 29 [634 F.3d at 1053], before the sentence <We conclude that ... > insert the following: <The Warning to Alien Ordered Removed or Deported, like the Warrant of Removal, is also non-testimonial because it is prepared routinely and “is not made in anticipation of litigation.” Orozco-Acosta, 607 F.3d at 1163. The Warning is a “standardized form” with no personalized content or factual findings. See Ballesteros-Selinger, 454 F.3d at 975. > The panel has voted to deny the petition for panel rehearing. Judges Schroeder and Tallman have voted to deny the petition for rehearing en banc, and Judge Jarvey has so recommended. The full court has been advised of the petition for rehearing en banc and no judge has requested a vote on whether to rehear the matter en banc. Fed. R.App. P. 35. The petition for panel rehearing and the petition for rehearing en banc are denied. No future petitions for rehearing or rehearing en banc will be entertained. OPINION JARVEY, District Judge: Francisco Valdovinos-Mendez appeals his conviction for illegally re-entering the United States following removal, in violation of 8 U.S.C. § 1326. Valdovinos-Mendez contends that the admission into evidence of a certificate of non-existence of record (“CNR”) and certain documents from his Alien Registration File (“A-file”) violated his rights under the Sixth Amendment’s Confrontation Clause. Citing the best evidence rule, he also contests the admission of testimony from an A-file custodian regarding the absence of any record of Valdovinos-Mendez applying for permission to re-enter the United States. In addition, he challenges a sixteen-level enhancement to his Sentencing Guideline base offense level imposed for a prior conviction of assault with a deadly weapon under California Penal Code § 245(a), arguing that it does not qualify as a “crime of violence” within the meaning of U.S.S.G. § 2L1.2(b)(l)(A)(ii). Finally, ValdovinosMendez asserts that Nijhawan v. Holder, - U.S. -, 129 S.Ct. 2294, 174 L.Ed.2d 22 (2009)," } ]

[ { "docid": "9766626", "title": "", "text": "not decided by the district court. We therefore remand so that the district court may consider the severity of the burden this aspect of the primary system imposes on the Libertarian Party’s associational rights, whether the state has sufficiently justified that burden, and if so, whether the selection of precinct committeemen is severable from the remainder of this semiclosed primary system. These factual issues must be reviewed in light of the Court’s opinion in Jones. The Supreme Court there held that California’s blanket primary system imposed a severe burden on a party’s right to decide for itself who it will, and will not, associate with for the purposes of selecting a candidate. Jones, 530 U.S. at 582, 120 S.Ct. 2402; see also Reed, 343 F.3d at 1204-05. Under a blanket primary system, all voters are able to vote for any candidate, regardless of party affiliation. Jones, 530 U.S. at 570, 120 S.Ct. 2402. This system differs from Arizona’s, which restricts registered members of opposing parties with ballot access to voting in their own party’s primary. Arizona’s system also limits independent and unaffiliated voters who choose to vote in a party primary to participating in selecting only the candidates of that party. The Supreme Court in Jones noted that a system “in which the voter is limited to one party’s ballot” may be “constitutionally distinct” from the unconstitutional blanket primary. Id. at 577 n. 8, 120 S.Ct. 2402. In striking down California’s blanket primary, however, the Supreme Court focused on the potential for the participation of nonparty members, including registered members of other parties, to influence the choice of the nominee at the primary and to cause partisan candidates to change their message to appeal to a more centrist voter base. See Id. at 578-79, 120 S.Ct. 2402. Because of their smaller size, minor parties such as the plaintiff here are at a greater risk of both of these outcomes when their primaries are opened to nonmembers. See id. at 578, 120 S.Ct. 2402. We observe that the Court in Jones treated the risk that nonparty members will skew either primary" } ]

[ { "docid": "9766625", "title": "", "text": "determining that the associational rights of the Republicans and the Democrats, the only other parties with ongoing ballot access, are violated for the same reason. The district court’s order should have been limited to the Arizona Libertarian Party because the Democrats and Republicans are not parties to this suit, and because the record with respect to the impact on their associational rights has not been developed. The outcome may well differ for parties that embrace the idea of a semiclosed primary. See United States v. Nat’l Treasury Employees Union, 513 U.S. 454, 477-78, 115 S.Ct. 1003, 130 L.Ed.2d 964 (1995). III. SELECTION OF CANDIDATES The district court also erred in failing to consider separately whether the participation of nonmembers in the selection of candidates is constitutional under California Democratic Party v. Jones. See 530 U.S. 567, 120 S.Ct. 2402, 147 L.Ed.2d 502. Although forcing the Libertarians to open their primary to nonmembers for the selection of party candidates raises serious constitutional concerns, we conclude that the resolution of the constitutional issue turns on factual questions not decided by the district court. We therefore remand so that the district court may consider the severity of the burden this aspect of the primary system imposes on the Libertarian Party’s associational rights, whether the state has sufficiently justified that burden, and if so, whether the selection of precinct committeemen is severable from the remainder of this semiclosed primary system. These factual issues must be reviewed in light of the Court’s opinion in Jones. The Supreme Court there held that California’s blanket primary system imposed a severe burden on a party’s right to decide for itself who it will, and will not, associate with for the purposes of selecting a candidate. Jones, 530 U.S. at 582, 120 S.Ct. 2402; see also Reed, 343 F.3d at 1204-05. Under a blanket primary system, all voters are able to vote for any candidate, regardless of party affiliation. Jones, 530 U.S. at 570, 120 S.Ct. 2402. This system differs from Arizona’s, which restricts registered members of opposing parties with ballot access to voting in their own party’s primary." }, { "docid": "8755945", "title": "", "text": "the party’s primary. See id. at 584, 125 S.Ct. 2029. The Libertarian Party of Oklahoma (LPO) and several Republican and Democratic voters brought the action after the state refused the LPO’s request to open its primary to all voters without regard to party affiliation. See id. at 584-85, 125 S.Ct. 2029. The Court distinguished the Oklahoma primary law from the one struck down in Tashjian, which prevented a party from allowing independent voters to participate in its primary. See id. at 592-93, 125 S.Ct. 2029. The Court noted that the Oklahoma law only prevented the LPO from associating with voters who had already affiliated publicly with another party. See id. at 587, 592, 125 S.Ct. 2029. The Court thus held that the semiclosed primary system imposed only a minor burden on the LPO’s associational rights, and that the state had advanced important regulatory interests justifying that burden. See id. at 587, 593-97, 125 S.Ct. 2029. Here, we need not decide whether Virginia’s open primary statute, viewed in isolation, impermissibly burdens a political party’s right to associate with those who share its beliefs. That is because- it is clear that § 24.2-530 — when properly viewed in the context of other methods of nomination permitted by Virginia law— does not facially burden political parties’ associational rights. As explained above, Virginia allows political parties to nominate candidates not only by state-run primary-but also by other methods controlled and funded by the party. And, by merely choosing any of these other options, a party is free to limit its candidate selection process to voters who share its political views. Thus, the “forced association” that the Supreme Court has condemned, Jones, 530 U.S. at 581, 120 S.Ct. 2402, simply is not present here. Indeed, neither of the two Supreme Court decisions holding primary laws unconstitutional involved a statute that represented only one of several options for candidate nomination. See id. at 569, 120 S.Ct. 2402 (indicating that under California law, political parties could only nominate candidates through primaries); cf. Tashjian, 479 U.S. at 211, 107 S.Ct. 544 (explaining that although political parties in Connecticut" }, { "docid": "14070837", "title": "", "text": "election does not result in an unacceptably close measurement of the same indicia of support as was the case with the two-tier system in Maryland. A minor political party could have polled well in the previous election, based on a relatively well-known candidate, thus meeting the requirements of § 2831(a), but then run a slate of candidates who could not garner the necessary “modicum” of support in the upcoming election. Permitting the “modicum” to be perpetual may result in ballot clutter. As such, the District Court did not err in holding that the minimal burdens on minor political parties was justified by Pennsylvania’s interest in preventing ballot clutter and ensuring viable candidates. After weighing the rights affected, the interests involved, and the extent to which these interests require the rights to be burdened, see Anderson, 460 U.S. at 789, 103 S.Ct. 1564, we conclude that the plaintiffs have not demonstrated that the method chosen by the state to accomplish these interests violates the plaintiffs’ rights to the equal protection of the laws. D. Freedom of Association Next, plaintiffs argue that under the reasoning of the Supreme Court in California Democratic Party v. Jones, 530 U.S. 567, 120 S.Ct. 2402, 147 L.Ed.2d 502 (2000), § 2911(b) violates their right to freedom of association and is thus unconstitutional. The Court in Jones struck down a California law that converted the state’s primaries from closed to open. In the proposed, open primary, voters could select any candidate regardless of the voter’s or the candidate’s affiliation. Plaintiffs argue that they face a similar interference here because the 2% signature threshold requires minor political parties to obtain signatures from individuals who are not members- of their respective parties. Republican and Democratic nominees, on the other hand, need not seek support from persons of other viewpoints to get on the Pennsylvania general election ballot. Jones, however, is not applicable to a ballot access ease, like the present one, in which internal party deliberations on the choice of party candidates are not implicated. Unlike the law at issue in Jones, Pennsylvania election law does not open the" }, { "docid": "20038169", "title": "", "text": "take somewhat different positions in order to be renominated.” Id. at 579-80, 120 S.Ct. 2402. On summary judgment in this case, this Court expressed concerns that the record was inadequate to determine whether Idaho’s open primary creates any of the same concerns that led the Supreme Court to deem California’s blanket primary unconstitutional. The Court’s major concern was whether crossover voting existed in Idaho under its open primary as it did in California under its blanket primary. The record before the Court on summary judgment contained no evidence on that issue. Without evidence about crossover voting in Idaho or other open primary states, the Court could not determine whether Idaho’s open primary subjects the Idaho Republican Party’s candidate-selection process to persons wholly unafflliated with the party. Id. at 581, 120 S.Ct. 2402. This, in turn, prevented the Court from determining whether, and to what extent, the threat of crossover voting affects the positions of the Idaho Republican Party and its candidates. The Court could not simply borrow the statistics, opinions, and surveys from Jones because that case dealt with a blanket primary instead of an open primary. The Court could not determine what burdens or restrictions, if any, are placed on the Idaho Republican Party by Idaho’s open primary. In turn, the Court could not weigh the character and magnitude of the Idaho Republican Party’s asserted injury against the interests of the State as justification for any such burden imposed by its statutes. Burdick, 504 U.S. at 434, 112 S.Ct. 2059. Accordingly, the Court denied the motion for summary judgment and set the matter for a bench trial to fully develop the record. At trial, the parties submitted both expert and lay testimony about the effects of crossover voting. The parties agreed to submit the evidence subject to post-trial Rule 702 motions. For their part, Plaintiffs submitted expert testimony from Robert Moore and David Ripley. They also submitted expert testimony from Michael Munger, who relied heavily upon the reports of Moore and Ripley. After the evidentiary hearing, Defendant and Intervenors moved to exclude Plaintiffs’ expert testimony pursuant to Daubert v." }, { "docid": "18392554", "title": "", "text": "Amendment right to enter into political association with individuals of its choosing. Id. at 211, 107 S.Ct. 544. Again, the Court found the state’s justification for restricting eligibility to be insubstantial and held that, as applied, the Connecticut statute impermissibly burdened the associational rights of the party. See id. In Jones, the Court assessed the constitutional soundness of Proposition 198. See Jones, 530 U.S. at 569-70, 120 S.Ct. 2402. Prior to the adoption of Proposition 198, California law established closed partisan primaries as the method of selecting candidates for public office. Id. at 570, 120 S.Ct. 2402. Under the closed primary system, only a political party’s members could vote on its nominees. Id. Proposition 198 established a blanket primary system, in which “each voter’s primary ballot now lists every candidate regardless of party affiliation and allows the voter to choose freely among them.” Id. The candidate of each party who wins the most votes is that party’s nominee for the general election. Id. Each political party’s plan prohibited nonmembers from voting in that party’s primary. Id. at 571, 120 S.Ct. 2402. All established political parties in the State of California filed suit challenging the effect of Proposition 198 on their rights of association. Id. Justice Scalia, speaking for the Court, noted that “Proposition 198 forces political parties to associate with — to have their nominees, and hence their positions, determined by — those who, at best, have refused to affiliate with the party, and, at worst, have expressly affiliated with a rival.” Id. at 577, 120 S.Ct. 2402. In the final analysis, the Court concluded that it could conceive of “no heavier burden on a political party’s associational freedom.” Id. at 582, 120 S.Ct. 2402. “Proposition 198 is therefore unconstitutional unless it is narrowly tailored to serve a compelling state interest.” Id. (citing Timmons, 520 U.S. at 358, 117 S.Ct. 1364 (“Regulations imposing severe burdens on [parties’] rights must be narrowly tailored and advance a compelling state interest.”)). More recently in Clingman v. Beaver, 544 U.S. 581, 125 S.Ct. 2029, 161 L.Ed.2d 920 (2005), the Court rejected a First Amendment" }, { "docid": "9766628", "title": "", "text": "results or candidates’ positions as a factual issue, with the plaintiffs having the burden of establishing that risk. See id. On remand, the district court should separately consider the constitutionality of nonparty members voting for Libertarian party candidates for public office, including the primary system’s potential to change the party’s nominee or the candidates’ positions. Should the district court determine that Arizona’s candidate selection system is constitutional under Jones, it next must conduct a severability analysis. In general, only the unconstitutional portion of a legislative enactment should be invalidated. See Nat’l Adver. Co. v. City of Orange, 861 F.2d 246, 249-50 (9th Cir. 1988). Although severability is a question of state law that we review de novo, see Randolph v. Groscost, 195 Ariz. 423, 989 P.2d 751, 755 (1999) (setting out the test for considering the severability of provisions of voter-approved initiative under Arizona law); Salve Regina College v. Russell, 499 U.S. 225, 239, 111 S.Ct. 1217, 113 L.Ed.2d 190 (1991) (holding that the district court’s interpretation of state law is reviewed de novo), we nonetheless consider it prudent to remand to the district court where “we believe the district court is better able to decide the question in the first instance.” Presbyterian Church (U.S.A.) v. United States, 870 F.2d 518, 529 (9th Cir.1989). CONCLUSION We AFFIRM the district court’s grant of summary judgment as it pertains to the election of Libertarian party precinct committeemen. We VACATE the district court’s grant of summary judgment to the extent that it applies to parties other than the Libertarian Party, and as it pertains to the selection of Libertarian Party candidates. We REMAND so that the district court may consider separately the constitutionality of requiring the Libertarian Party to allow nonmembers to select party candidates and if necessary the severability of the provision relating to the election of Libertarian Party precinct committeemen. Our holding is limited to the Arizona primary system as applied to the Libertarian Party, and does not apply to any other political parties. AFFIRMED IN PART, VACATED IN PART, and REMANDED." }, { "docid": "8334317", "title": "", "text": "New Party, 520 U.S. 351, 359, 117 S.Ct. 1364, 137 L.Ed.2d 589 (1997) (“The New Party’s claim that it has a right to select its own candidate is uncontroversial,” and citing Cousins v. Wigoda, 419 U.S. 477, 95 S.Ct. 541, 42 L.Ed.2d 595 (1975) (“party, not State has the right to decide who will be State’s delegates at party convention”)). California Democratic Party v. Jones, 530 U.S. 567, 578, 120 S.Ct, 2402, 147 L.Ed.2d 502 (2000), addressed California’s blanket primary system under a law, Proposition 198, that allowed members of the opposing party to select the minor party’s nominee. There, the Court found “a clear and present danger” to minor political parties in such a primary system as “the evidence in this case demonstrates.” Id. “The impact of voting by nonparty members is much greater upon minor parties, such as the Libertarian Party and the Peace and Freedom Party.” Id. “[A] single election in which the party nominee is selected by nonparty members could be enough to destroy the party.” Id. at 579, 120 S.Ct. 2402. The Supreme Court then reasoned: In sum, Proposition 198 forces petitioners to adulterate their candidate-selection process-the “basic function of a political party,” ibid.-hy opening it up to persons wholly unaffiliated with the party. Such forced association has the likely outcome-indeed, in this case the intended outcome-of changing the parties’ message. We can think of no heavier burden on a political party’s associational freedom. Proposition 198 is therefore unconstitutional unless it is narrowly tailored to serve a compelling state interest. Respondents’ legitimate state interests and petitioners’ First Amendment rights are not inherently incompatible. To the extent they are in this case, the State of California has made them so by forcing political parties to associate with those who do not share their beliefs. And it has done this at the “crucial juncture” at which party members traditionally find their collective voice and select their spokesman. The burden Proposition 198 places on petitioners’ rights of political association is both severe and unnecessary.” Id. at 582, 586, 120 S.Ct. 2402 (emphasis in original and added) (citation omitted)." }, { "docid": "20038166", "title": "", "text": "results, which allowed nonparty members to participate in the selection of the party’s nominee. This conflicted with the national Democratic Party’s rules. The Supreme Court struck down Wisconsin’s system, finding that it constituted an unjustified and substantial intrusion into the Democratic Party’s associational rights. In Jones, the Court characterized the holding in La Follette as follows: “Whatever the strength of the state interests supporting the open primary itself, they could not justify this substantial intrusion into the associational freedom of members of the National Party.” Jones, 530 U.S. at 576, 120 S.Ct. 2402 (internal quotation and citation omitted). Thus, it is clear that open primary elections are also subject to careful constitutional scrutiny. Ultimately, the Supreme Court in Jones determined that California’s blanket primary imposed a severe burden on the political parties’ First Amendment rights by forcing them “to associate with — to have their nominees, and hence their positions, determined by — those who, at best, have refused to affiliate with the party, and, at worst, have expressly affiliated with a rival.” Id. at 577, 120 S.Ct. 2402. To reach its conclusion, the Supreme Court relied on statistical surveys of California voters where 37 percent of Republicans said they planned to vote in the 1998 Democratic gubernatorial primary, and 20 percent of Democrats said they planned to vote in the 1998 Republican United States Senate primary. Id. Such figures were comparable to results of studies in other States with blanket primaries. Id. The Supreme Court also relied on expert testimony indicating that only 25-33 percent of all voters in Washington — a blanket primary state at that time — limited themselves to candidates of one party throughout the ballot. Id. The surveys relied upon by the Supreme Court also revealed different policy preferences between primary voters who crossed over from another party and the party members. Id. Additionally, the Supreme Court relied on expert testimony that policy positions of legislators elected from blanket primary states are more moderate and reflect the preferences of voters at the center of the ideological spectrum. Id. at 580, 120 S.Ct. 2402. The Supreme" }, { "docid": "19972319", "title": "", "text": "Washington State sought to comply with Jones by presenting candidates without party affiliations, thereby creating an ostensibly nonpartisan primary, yet allowed candidates to indicate a “political party preference” without expressly having or running for the party’s nomination. See 460 F.3d at 1114. The question the Supreme Court faced in Washington State was whether a non-partisan blanket primary “that indicates each candidate’s preference on the ballot, in effect, chooses the parties’ nominees,” which would seemingly be impermissible under Jones. 128 S.Ct. at 1192. The Court held that although “it is possible that voters will misinterpret the candidates’ party-preference designations as reflecting endorsement by the parties,” it could not resolve this question without an “evidentiary record against which to assess their assertions that voters will be confused.” Id. at 1193-94. The Court therefore held that First Amendment challenges to primary ballots that turn on “the possibility that voters will be confused as to the meaning of the party-preference designation” must be brought only through an as-applied, not a facial, challenge. See id. at 1193. Alaska’s self-selected closed, open or partially closed primary system does not resemble the one at issue in Washington State, because it is not a blanket primary and therefore does not present the risk that — if used to choose a party’s nominee — the nominee will be chosen by voters with whom the party prefers not to associate. The Alaska primary is even more respectful of a party’s associational rights than is constitutionally required, because it allows parties to decide whether they want to allow nonparty members to participate, as both the AIP and ALP have elected to do. Cf Clingman, 544 U.S. at 592-93, 125 S.Ct. 2029 (holding that a state law forbidding parties from inviting members of other parties to participate in their primary places “no heavy burden” on parties’ associational rights). Contrary to Appellants’ argument here, there seems little risk that voters will mistake the candidates running in a partisan primary — where the very purpose, unlike in a nonpartisan blanket primary, is to allow party voters to choose the party’s nominee — to be" }, { "docid": "13321834", "title": "", "text": "State’s justifications. The severity of the burden that an election law imposes “is a factual question on which the plaintiff bears the burden of proof.” Democratic Party of Haw. v. Nago, 833 F.3d 1119, 1122-24 (9th Cir. 2016) (citing Cal. Democratic Party, 530 U.S. 567, 120 S.Ct. 2402); Gonzalez v. Arizona, 485 F.3d 1041, 1050 (9th Cir. 2007) (noting that whether an election law imposes a severe burden is - an “intensely factual inquiry”). “[T]he severity of the burden the election law imposes on the plaintiffs rights dictates the level of scrutiny applied by the court.” Ariz. Libertarian Party v. Reagan, 798 F.3d 723, 729 (9th Cir. 2015) (quoting Nader v. Cronin, 620 F.3d 1214, 1217 (9th Cir. 2010) (per curiam)). “This is a sliding scale test”: when the burden imposed is severe, not only the “more compelling the state’s interest must be,” Ariz. Green Party v. Reagan, 838 F.3d 983, 988 (9th Cir. 2016), but the regulation also “must be ‘narrowly drawn to advance a state interest of compelling importance,’” Burdick, 504 U.S. at 434, 112 S.Ct. 2059 (quoting Norman v. Reed, 502 U.S. 279, 289, 112 S.Ct. 698, 116 L.Ed.2d 711 (1992)). By contrast, “when a state election law provision imposes only ‘reasonable, nondiscriminatory restrictions’ upon the First and Fourteenth Amendment rights of voters, ‘the State’s important regulatory interests are generally sufficient to justify the restrictions.” Id. (quoting Anderson, 460 U.S. at 788, 103 S.Ct. 1564) ; see also Ariz. Green Party, 838 F.3d at 988 (“[A] state may justify election regulations imposing a lesser burden by demonstrating the state has important regulatory interests.” (quoting Ariz. Libertarian Party, 798 F.3d at 729-30)). While Burdick does not call for rational basis review, Pub. Integrity All., 836 F.3d at 1025, it likewise specifically declined to require that all voting regulations be narrowly tailored and subjected to strict scrutiny, see Burdick, 504 U.S. at 433, 112 S.Ct. 2059. Rather, Burdick held that when a statute imposes only a limited burden, the “ ‘precise interests’ advanced by the State” alone may be “sufficient to defeat [a plaintiffs] facial challenge,” Crawford v. Marion" }, { "docid": "3864667", "title": "", "text": "populace is not politically energized .... Early deadlines also have the effect of ensuring that any contentious issue raised in the same year as an election cannot be responded to by the formation of a new political party. The combination of these burdens impacts the party’s ability to appear on the general election ballot, and thus, its opportunity to garner votes and win the right to govern.” (internal citations omitted)). For all of these rear-sons, we can imagine how an early filing deadline could impact the Green Party’s rights, but that, does not mean that Arizona’s deadline necessarily poses an unconstitutional burden. The relevant inquiry is whether “[the state]’s ballot access- requirements seriously restrict the availability of political opportunity.” Libertarian Party of Wash. v. Munro, 31 F.3d 759, 762 (9th Cir. 1994). The Green Party bears the initial burden of showing such restrictions. See id. In Munro, we made clear that parties alleging a severe burden must provide evidence of the specific burdens imposed by the law at issue. See id. “[T]he extent of the burden that a primary system imposes ... is a factual question on which the plaintiff bears the burden of proof.” Democratic Party of Haw. v. Nago, 833 F.3d 1119, 2016 WL 4269872, at *2 (9th Cir. 2016). In challenging ballot access regulations, parties must articulate the nature of the burden, which “should be measured by whether, in light of the entire statutory scheme regulating ballot access, ‘reasonably diligent’ [parties] can normally gain a place on the ballot, or whether they will rarely succeed in doing so.” Nader v. Brewer, 531 F.3d 1028,1035 (9th Cir. 2008) (internal citations omitted). In its complaint, the Green Party alleges that the February deadline greatly increases costs faced by third parties, was not designed to allow a reasonably diligent minor party to qualify for ballot access, and requires minor parties to gather signatures when the “mind of the general public and the attention of the media is not focused on the general elections.” These may well be legitimate complaints, but the Green Party did not submit any supporting evidence with" }, { "docid": "20038165", "title": "", "text": "for Governor and a Democratic nominee for Attorney General in a blanket primary. The voter cannot do that in an open primary. Id. In Jones, the Supreme Court recognized that “the blanket primary ... may be constitutionally distinct from the open primary....” Id. at 577, 120 S.Ct. 2402. Thus, in Jones, the Supreme Court was not required to determine the constitutionality of open primaries like the one held in Idaho. Id. at 577, n. 8, 120 S.Ct. 2402. Recognizing the difference between blanket and open primaries, this Court nevertheless finds the Supreme Court’s analysis in Jones instructive. The Court in Jones relied heavily on its earlier decision in La Follette, a case dealing with an open primary. In La Follette, the Supreme Court confronted a challenge to the State of Wisconsin’s open presidential preference primary. In that system, voters did not select the delegates to the Democratic Party’s National Convention directly. Instead, they were chosen at party caucuses at a later time. Still, Wisconsin law required the delegates to vote in accord with the primary results, which allowed nonparty members to participate in the selection of the party’s nominee. This conflicted with the national Democratic Party’s rules. The Supreme Court struck down Wisconsin’s system, finding that it constituted an unjustified and substantial intrusion into the Democratic Party’s associational rights. In Jones, the Court characterized the holding in La Follette as follows: “Whatever the strength of the state interests supporting the open primary itself, they could not justify this substantial intrusion into the associational freedom of members of the National Party.” Jones, 530 U.S. at 576, 120 S.Ct. 2402 (internal quotation and citation omitted). Thus, it is clear that open primary elections are also subject to careful constitutional scrutiny. Ultimately, the Supreme Court in Jones determined that California’s blanket primary imposed a severe burden on the political parties’ First Amendment rights by forcing them “to associate with — to have their nominees, and hence their positions, determined by — those who, at best, have refused to affiliate with the party, and, at worst, have expressly affiliated with a rival.” Id. at" }, { "docid": "17074992", "title": "", "text": "voters not officially affiliated with the party from participating in party primaries. Shortly thereafter, a Republican legislator attempted to designate the primary as the method for the nomination of his seat applying the new rules adopted by the Republican Party of Virginia. The Virginia State Board of Elections objected to the legislator’s designation as violative of Virginia’s open primary laws. Id. at 363. The Republican Party of Virginia brought suit against the Board of Elections and sought a declaration that Virginia’s open primary law was unconstitutional on its face and as applied. In addressing the facial challenge to the statute, the court declined to hold that Virginia’s use of the open primary was unconstitutional. Instead the court found that “when properly viewed in the context of other methods of nomination permitted by Virginia law — [the open primary statute] does not facially burden political parties’ associational rights.” Id. at 367. The court also noted that: Virginia allows political parties to nominate candidates not only by state-run primary but also by other methods controlled and funded by the party. And, by merely choosing any of these other options, a party is free to limit its candidate selection process to voters who share its political views. Thus, the “forced association” that the Supreme Court has condemned simply is not present here. Id. The court held that, because Virginia had multiple options for candidate selection, Virginia’s open primary statute imposed no burden on parties’ associational rights and was not facially unconstitutional. Id. at 368. The court, however, did agree with the district court’s finding that the statute was unconstitutional as applied. Id. Supreme Court precedent further supports the practice that only mandatory candidate nomination schemes implicate a political party’s constitutional right to free association. In California Democratic Party v. Jones, 530 U.S. at 567, 120 S.Ct. 2402, the Court addressed the constitutionality of California election laws requiring political parties to use the blanket primary nomination process to gain access to the general election ballot. Id. at 570, 120 S.Ct. 2402. A blanket primary is one in which the ballot lists every candidate regardless" }, { "docid": "20038177", "title": "", "text": "E, p. 18, Dkt. 60-9. At first blush, that would appear to be a strong argument for maintaining the status quo. But, choosing ideologically extreme candidates is precisely what a political party is entitled to do in asserting its right of association under the First Amendment. The Court cannot “simply move[] the general election one step earlier in the process, at the expense of the parity’s] ability to perform the ‘basic function’ of choosing [its] own leader[].” Jones, 530 U.S. at 580, 120 S.Ct. 2402. The Court cannot find any meaningful distinction between the open primary in Idaho and the blanket primary found unconstitutional Jones. Like the blanket primary system addressed in Jones, the current open primary system in Idaho forces the Idaho Republican Party to open up its candidate-selection process to persons wholly unafflliated with the Party. And, like the blanket primary, “[s]uch forced association has the likely outcome ... of changing the [party’s] message.” Id. at 581-82, 120 S.Ct. 2402. Finally, Defendant contends that a closed primary would make no real difference with respect to affiliation because Idaho voters make that choice when they pick a ballot at the voting booth anyway. The evidence suggests otherwise. Although crossover voting may also occur in a closed primary, Defendant’s own experts concede that it happens “perhaps at a reduced rate because of increased costs to the voter.” Martin & Saunders Report, Ex. E, p. 17, Dkt. 60-9. The Court also notes that in explaining that a blanket primary is “qualitatively” different from a closed primary, the Supreme Court in Jones stated that under a closed primary system, “even when it is made quite easy for a voter to change his party affiliation the day of the primary, and thus, in some sense, to ‘cross over,’ at least he must formally become a member of the party; and once he does so, he is limited to voting for candidates of that party.” Id. (Italics in original). Idaho’s current open primary does not require such a formal declaration of membership. In Jones, the Supreme Court stated that it “can think of no" }, { "docid": "20038178", "title": "", "text": "respect to affiliation because Idaho voters make that choice when they pick a ballot at the voting booth anyway. The evidence suggests otherwise. Although crossover voting may also occur in a closed primary, Defendant’s own experts concede that it happens “perhaps at a reduced rate because of increased costs to the voter.” Martin & Saunders Report, Ex. E, p. 17, Dkt. 60-9. The Court also notes that in explaining that a blanket primary is “qualitatively” different from a closed primary, the Supreme Court in Jones stated that under a closed primary system, “even when it is made quite easy for a voter to change his party affiliation the day of the primary, and thus, in some sense, to ‘cross over,’ at least he must formally become a member of the party; and once he does so, he is limited to voting for candidates of that party.” Id. (Italics in original). Idaho’s current open primary does not require such a formal declaration of membership. In Jones, the Supreme Court stated that it “can think of no heavier burden on a political party’s associational freedom” than changing the party’s message. Id. at 582, 120 S.Ct. 2402. Like the blanket primary system in Jones, Idaho’s current open primary system, as applied, forces the Idaho Republican Party to associate with, and have their nominees and positions determined by, those who have refused to affiliate with the party. Id. at 577, 120 S.Ct. 2402. Therefore, like the blanket primary system in Jones, the current primary system in Idaho imposes a severe burden on the Idaho Republican Party’s First Amendment rights. Accordingly, this Court must deem the current Idaho primary system unconstitutional unless it is narrowly tailored to serve a compelling state interest. Id. State Interests Defendant made no real attempt to show that Idaho election statutes are narrowly tailored to serve a compelling state interest. Assuming the Court would not conclude that the current system places a heavy burden on the Idaho Republican Party’s associational freedom, Defendant argued only that it need show an important regulatory interest. Defendant argued that two such interests apply: (1)" }, { "docid": "9766624", "title": "", "text": "their party leaders.”). The Court recognized the strength of a party’s interest in selecting its own leaders. See id. at 230, 109 S.Ct. 1013. It also noted the important role party leaders play in shaping the party’s message. See id. at 231 n. 21, 109 S.Ct. 1013. The Secretary of State has not articulated any state interest to justify allowing nonmembers to vote for Libertarian Party precinct committeemen, and we see none. In the absence of a state interest to justify the burden on the plaintiffs’ freedom of association, we agree with the district court that allowing nonmembers to vote for precinct committeemen violates the party’s associational rights. See Cool Moose Party v. Rhode Island, 183 F.3d 80, 88 (1st Cir.1999) (declaring prohibitions on opening primaries to nonmembers unconstitutional where the state failed to articulate any justification). Thus, insofar as the district court concluded that the semiclosed primary violated the associational rights of the Libertarians because it allowed nonmembers to vote for precinct committeemen, we agree. The district court, however, went beyond that conclusion in determining that the associational rights of the Republicans and the Democrats, the only other parties with ongoing ballot access, are violated for the same reason. The district court’s order should have been limited to the Arizona Libertarian Party because the Democrats and Republicans are not parties to this suit, and because the record with respect to the impact on their associational rights has not been developed. The outcome may well differ for parties that embrace the idea of a semiclosed primary. See United States v. Nat’l Treasury Employees Union, 513 U.S. 454, 477-78, 115 S.Ct. 1003, 130 L.Ed.2d 964 (1995). III. SELECTION OF CANDIDATES The district court also erred in failing to consider separately whether the participation of nonmembers in the selection of candidates is constitutional under California Democratic Party v. Jones. See 530 U.S. 567, 120 S.Ct. 2402, 147 L.Ed.2d 502. Although forcing the Libertarians to open their primary to nonmembers for the selection of party candidates raises serious constitutional concerns, we conclude that the resolution of the constitutional issue turns on factual questions" }, { "docid": "3864670", "title": "", "text": "In the absence of specifics, the Green Party relies heavily on a district court decision holding an Arkansas filing deadline unconstitutional. See Citizens to Establish a Reform Party in Ark. v. Priest, 970 F.Supp; 690 (E.D. Ark. 1996). Unlike the Green Party, the Arkansas Reform Party presented considerable testimony about the burdens of the deadline, including the analysis of two experts in minor political parties and ballot access. Id. at 694. For example, the plaintiffs presented testimony that “[t]hey experienced difficulty collecting petition signatures in the winter time due to cold temperatures and inclement weather,” id, at 692, circumstances that would likely not impair signature gathering in early winter in most parts of Arizona. The extensive evidence provided in Priest stands in stark contrast to the bare record here. Analogy and rhetoric are no substitute for evidence, particularly where there are significant differences between the cases the Green Party relies on and the Arizona election system it challenges. The Supreme Court and our sister circuits have emphasized the need for context-specific analysis in ballot access cases. See Cal. Democratic Party v. Jones, 530 U.S. 567, 578, 120 S.Ct. 2402, 147 L.Ed.2d 502 (2000) (“The evidence in this case demonstrates that under California’s blanket primary system, the prospect of [harm] is far from remote— indeed, it is a clear and present danger.” (emphasis added)); Blackwell, 462 F.3d at 587 (“In determining the magnitude of the burden imposed by a state’s election laws, the Supreme Court has looked to the associational rights at issue, including whether alternative means are available to exercise those rights; the effect of the regulations on the voters, the parties and the candidates; evidence of the real impact the restriction has on the process; and the interests of the state relative to the scope of the election.” (emphasis added)); Nago, 2016 WL 4269872, at *2 (“Because the ... Party has not presented any evidence to meet its burden, its facial challenge fails.”). The balancing test rests on the specific facts of a particular election system, not on “strained analogies]” to past cases. Munro, 31 F.3d at 762. That" }, { "docid": "20038163", "title": "", "text": "U.S. 567, 573-74, 120 S.Ct. 2402, 147 L.Ed.2d 502 (2000), that allowing nonparty members to participate in the selection of a party’s nominee in conflict with the party’s expressed desires constitutes a “substantial intrusion into the associational freedom” of the party’s members. Jones, 530 U.S. at 576, 120 S.Ct. 2402 (citing La Follette, 450 U.S. at 126, 101 S.Ct. 1010). In Jones, four political parties — the California Democratic Party, the California Republican Party, the Libertarian Party of California, and the Peace and Freedom Party — filed suit against the California Secretary of State after citizens of California adopted Proposition 198. Proposition 198 changed California’s partisan primary from a closed primary, in which only a political party’s members could vote on its nominees, to a blanket primary, in which each voter’s ballot lists every candidate regardless of party affiliation and allowed the voter to choose freely among them. The plaintiffs alleged that California’s new blanket primary violated their First Amendment right of association. The District Court held that the blanket primary did not place a severe burden on the political parties’ right of association. Id. at 571, 120 S.Ct. 2402. The District Court therefore concluded that state interests justified the blanket primary. Id. at 571, 120 S.Ct. 2402. The Ninth Circuit adopted the District Court’s reasoning and affirmed the decision. The Supreme Court reversed after concluding that the blanket primary caused a heavy burden on a political par ty’s associational freedom, and that it was not narrowly tailored to serve a compelling state interest. Id. at 582, 120 S.Ct. 2402. This case is somewhat different from Jones because, unlike the blanket primary created by California Proposition 198, Idaho statutes mandate an open primary. As the Supreme Court explained in Jones, “[a]n open primary differs from a blanket primary in that, although as in the blanket primary any person, regardless of a party affiliation, may vote for a party’s nominee, his choice is limited to that party’s nominees for all offices.” Id. at 576, n. 6, 120 S.Ct. 2402 (Italics in original). For example, a voter may support a Republican nominee" }, { "docid": "20038179", "title": "", "text": "heavier burden on a political party’s associational freedom” than changing the party’s message. Id. at 582, 120 S.Ct. 2402. Like the blanket primary system in Jones, Idaho’s current open primary system, as applied, forces the Idaho Republican Party to associate with, and have their nominees and positions determined by, those who have refused to affiliate with the party. Id. at 577, 120 S.Ct. 2402. Therefore, like the blanket primary system in Jones, the current primary system in Idaho imposes a severe burden on the Idaho Republican Party’s First Amendment rights. Accordingly, this Court must deem the current Idaho primary system unconstitutional unless it is narrowly tailored to serve a compelling state interest. Id. State Interests Defendant made no real attempt to show that Idaho election statutes are narrowly tailored to serve a compelling state interest. Assuming the Court would not conclude that the current system places a heavy burden on the Idaho Republican Party’s associational freedom, Defendant argued only that it need show an important regulatory interest. Defendant argued that two such interests apply: (1) maintaining maximum ballot secrecy and effective administration of its same-day registration statute; and (2) avoiding changeover costs. With respect to secrecy, the Supreme Court in Jones has already determined that it is not a compelling interest. The Supreme Court explained that a state’s interest in assuring the confidentiality of one’s party affiliation information in all cases cannot conceivably be considered a “compelling” one. Id. at 585, 120 S.Ct. 2402. “If such information were generally so sacrosanct, federal statutes would not require a declaration of party affiliation as a condition of appointment to certain offices.” Id. The same-day registration argument also comes up short. Defendant explains that a public disclosure requirement would require separate ballots, as opposed to the single ballot used today. Defendant argues that this will create administrative burdens and costs because election officials will need to prepare for demands for each party’s ballot, which would be difficult to gauge prior to the election. Defendant is correct that the Party’s Closed Republican Primary Rule will likely cause some administrative burdens and costs to the" }, { "docid": "20038168", "title": "", "text": "Court cited one expert who determined that it is inevitable under a blanket primary that political parties will be forced to give their official designation to a candidate who is not preferred by a majority or even a plurality of party members. Id. at 579, 120 S.Ct. 2402. The Supreme Court explained that these surveys, statistics, and opinions suggested that a blanket primary impedes the ability of political parties to select their own candidates. Based on this evidence, the Supreme Court concluded that “the prospect of having a party’s nominee determined by adherents of an opposing party [in a blanket primary] is far from remote — indeed, it is a clear and present danger.” Id. at 578, 120 S.Ct. 2402. The Supreme Court further explained that the “substantial numbers” of crossover voters in a blanket primary will alter the identity of the nominee, and “[e]ven when the person favored by a majority of the party members prevails, he will have prevailed by taking somewhat different positions — and, should he be elected, will continue to take somewhat different positions in order to be renominated.” Id. at 579-80, 120 S.Ct. 2402. On summary judgment in this case, this Court expressed concerns that the record was inadequate to determine whether Idaho’s open primary creates any of the same concerns that led the Supreme Court to deem California’s blanket primary unconstitutional. The Court’s major concern was whether crossover voting existed in Idaho under its open primary as it did in California under its blanket primary. The record before the Court on summary judgment contained no evidence on that issue. Without evidence about crossover voting in Idaho or other open primary states, the Court could not determine whether Idaho’s open primary subjects the Idaho Republican Party’s candidate-selection process to persons wholly unafflliated with the party. Id. at 581, 120 S.Ct. 2402. This, in turn, prevented the Court from determining whether, and to what extent, the threat of crossover voting affects the positions of the Idaho Republican Party and its candidates. The Court could not simply borrow the statistics, opinions, and surveys from Jones because" } ]

[ { "docid": "21804454", "title": "", "text": "generic processes and machinery. McRO, 837 F.3d at 1314. Claims directed to generalized steps to be performed on a computer using conventional computer activity are not patent eligible. Internet Patents, 790 F.3d at 1348-49. The district court found that claim 1 of the ’187 patent, which is representative of all of the claims of the ’187 patent and ’005 patent, is directed to the abstract idea of (1) sending information, (2) directing the sent information, (3) monitoring the receipt of the sent information, and (4) accumulating records about receipt of the sent information. Two-Way Media, 2016 WL 4373698, at *5. Two-Way Media argues that the district court erred by oversimplifying the claim and ignoring claim limitations present in its proposed constructions. We disagree. Claim 1 recites a method for routing information using result-based functional language. The claim requires the functional results of “converting,” “routing,” “controlling,” “monitoring,” and “accumulating records,” but does not sufficiently describe how to achieve these results in a non-abstract way. Affinity Labs of Tex., LLC v. DIRECTV, LLC, 838 F.3d 1253, 1258-59 (Fed. Cir. 2016) (holding that claims were directed to an abstract idea where they claimed “the function of wirelessly communicating regional broadcast content to an out-of-region recipient, not a particular way of performing that function”). Claim 1 is similar to other claims found to be directed to an abstract idea. In Electric Power Group, LLC v. Alstom S.A., 830 F.3d 1350, 1351 (Fed. Cir. 2016), the challenged claims were directed to systems and methods for achieving real-time performance monitoring of an electric power grid. We held that the challenged claims were directed to the abstract idea of “gathering and analyzing information of a specified content, then displaying the results, and not any particular as-sertedly inventive technology for performing those functions.” Id. at 1354. In the same way, claim 1 manipulates data but fails to do so in a non-abstract way. Two-Way Media’s proposed constructions do not change this outcome. Though Two-Way Media argues that its proposed claim constructions. sufficiently tie the claims to particular scalable network architecture, the constructions recite only conventional computer components. For" } ]

[ { "docid": "23463291", "title": "", "text": "idea.” See Enfish, LLC v. Microsoft Corp., No. 2015-2044, 822 F.3d 1327, 1335, 2016 WL 2756255 (Fed.Cir. May 12, 2016). We contrasted claims “directed to an improvement in the functioning of a computer” with claims “simply adding conventional computer components to well-known business practices,” or claims reciting “use of an abstract mathematical formula on any general purpose computer,” or “a purely conventional computer implementation of a mathematical formula,” or “generalized steps to be performed on a computer using conventional computer activity.” Id. at 1338. Contrary to TLI’s arguments on appeal, the claims here are not directed to a specific improvement to computer functionality. Rather, they are directed to the use of conventional or generic technology in a nascent but well-known environment, without any claim that the invention reflects an inventive solution to any problem presented by combining the two. According to the '295 patent, the problem facing the inventor was not how to combine a camera with a cellular telephone, how to transmit images via a cellular network, or even how to append classification information to that data. Nor was the problem related to the structure of the server that stores the organized digital images. Rather, the inventor sought to “provid[e] for recording, administration and archiving of digital images simply, fast and in such way that the information therefore may be easily tracked.” '295 patent, col. 1 11. 62-65. The specification does not describe a new telephone, a new server, or a new physical combination of the two. The specification fails to provide any technical details for the tangible components, but instead predominately describes the system and methods in purely functional terms. For example, the “telephone unit” of the claims is described as having “the standard features of a telephone unit,” id. at col. 5 11. 54-58, with the addition of a “digital image pick up unit for recording images,” id. at col. 5 11. 58-61, that “operates as a digital photo camera of the type which is known,” id. at col. 6. 11. 1-2. Put differently, the telephone unit itself is merely a conduit for the abstract idea of" }, { "docid": "9659370", "title": "", "text": "Claim 1 of the ’051 Patent— Abstract Idea Analysis ‘ Having determined the “character -as a whole” of claim 1, the Court turns to whether it is directed to an abstract idea. Enfish, 822 F.3d at 1335. As discussed above, courts will generally compare the claims at issue to prior § 101 cases, as well as consult several guideposts, including: (1) whether the claims are directed to an “improvement to computer functionality;” (2) whether the claims are directed to a “new and useful technique;” (3) . whether the claims have an analogy to the brick- and-mortar world; and (4) whether the claims are directed to a mental process or a process that can be performed with a pen and paper. See Section II.C, supra. For the reasons discussed below, the Court finds that the brick-and-mortar ánalogy, applied in the same way other Federal Circuit and district court cases have applied it, confirms that claim 1 is directed to an abstract idea. Thus, the Court will discuss this guidepost and then turn to Plaintiffs remaining arguments, which all relate to the “improvement to computer functionality” guidepost. i. Brick and Mortar Analogy The United States Supreme Court has held that “fundamental .., practice^] long prevalent in our system” and “method[s] of organizing human activity” are abstract ideas. Alice, 134 S.Ct. at 2356 (citations and internal quotation marks omitted). Several Federal Circuit and district court cases applying these principles are instructive here. The Court reviews each in turn, and then applies this same reasoning to claim 1 of the ’051 patent. In Affinity Labs of Texas, LLC v. DIRECTV, LLC, the Federal Circuit concluded that claims directed to “providing out-of-region access to regional broadcast content” were directed to an abstract idea because this was a “broad and familiar concept concerning information distribution that is' untethered to any specific or concrete way of implementing it.” 838 F.3d 1253, 1258 (Fed. Cir. 2016). In so reasoning, the Federal Circuit noted that “[t]he practice of conveying regional content to out-of-region recipients” had been employed “by nearly every form of media” for decades, and was “not tied" }, { "docid": "2594538", "title": "", "text": "practice,” but instead' specified “how interactions with the Internet are manipulated to yield a desired result.” Id. at 1258. Moreover, the DDR Holdings court observed that the claims in that case recited a specific way to automate the creation of a composite web page and did not preempt “every application of the idea of increasing sales by making two web pages look the same.” Id. at 1259. In short, DDR Holdings dealt with a patent that required doing something to a web page, not simply doing something on a web page, a difference that the court regarded as important to the issue of patent eligibility. That is not the case here. The patent in this case is not directed to the solution of a “technological problem,” Alice, 134 S.Ct. at 2358, nor is it directed to an improvement in computer or network functionality. Instead, it claims the general concept of out-of-region delivery of broadcast content through the use of conventional devices, without offering any technological means of effecting that concept. The second case relied on by Affinity is Enfish, LLC v. Microsoft Corp., 822 F.3d 1327 (Fed. Cir. 2016). As in DDR Holdings, the focus of the claims in Enfish was on “an improvement to computer functionality itself, not on economic or other tasks for which a computer is used in its ordinary capacity.” Id. at 1336. In this case, the claims are directed not to an improvement in cellular telephones but simply to the use of cellular telephones as tools in the aid of a process focused on an abstract idea. That is not enough to constitute patentable subject matter. See Elec. Power Grp., op. at 1354; see also McRo, Inc. v. Bandai Namco Games Am. Inc., No. 15-1080, 837 F.3d 1299, 1314, 2016 WL 4896481, at *8-9 (Fed. Cir. Sep. 13, 2016) (claims held patent-eligible because they made “a specific asserted improvement in computer animation”). B In applying step two of the Mayo/Alice analysis, our task is to “determine whether the claims do significantly more than simply describe [the] abstract method” and thus transform the abstract idea into" }, { "docid": "19544627", "title": "", "text": "1089, 1094-95 (Fed. Cir. 2016) (claims \"directed to collecting and analyzing information to detect misuse and notifying a user when misuse is detected\" were drawn to a patent-ineligible abstract idea); Elec. Power Grp., LLC v. Alstom S.A. , 830 F.3d 1350, 1354 (Fed. Cir. 2016) (claims directed to an abstract idea because \"[t]he advance they purport to make is a process of gathering and analyzing information of a specified content, then displaying the results, and not any particular assertedly inventive technology for performing those functions\"); In re TLI Commc'ns LLC , 823 F.3d at 611 (claims were \"directed to the abstract idea of classifying and storing digital images in an organized manner\"); see also Elec. Power Grp. , 830 F.3d at 1353-54 (collecting cases). However, the determination of whether other types of computer-implemented claims are abstract has proven more \"elusive.\" See, e.g. , Internet Patents Corp. v. Active Network, Inc. , 790 F.3d 1343, 1345 (Fed. Cir. 2015) (\"[P]recision has been elusive in defining an all-purpose boundary between the abstract and the concrete[.]\"). As a result, in addition to comparing claims to prior U.S. Supreme Court and Federal Circuit precedents, courts considering computer-implemented inventions have taken varied approaches to determining whether particular claims are directed to an abstract idea. For example, courts have considered whether the claims \"purport to improve the functioning of the computer itself,\" Alice , 134 S.Ct. at 2359, which may suggest that the claims are not abstract, or instead whether \"computers are invoked merely as a tool\" to carry out an abstract process, Enfish , 822 F.3d at 1336 ; see also id. at 1335 (\"[S]ome improvements in computer-related technology when appropriately claimed are undoubtedly not abstract, such as a chip architecture, an LED display, and the like. Nor do we think that claims directed to software, as opposed to hardware, are inherently abstract[.]\"). The Federal Circuit has followed this approach to find claims patent-eligible in several cases. See Visual Memory LLC v. NVIDIA Corp. , 867 F.3d 1253, 1259-60 (Fed. Cir. 2017) (claims directed to an improved memory system were not abstract because they \"focus[ed]" }, { "docid": "9659353", "title": "", "text": "intangible. See Microsoft Corp. v. AT & T Corp., 550 U.S. 437, 451 n.12, 127 S.Ct. 1746, 167 L.Ed.2d 737 (2007). Accordingly, the Federal Circuit has generally found claims abstract where they are directed to some combination of collecting information, analyzing information, and/or displaying the results of that analysis. See Fair-Warning IP, LLC v. Iatric Sys., Inc., 839 F.3d 1089, 1094-95 (Fed. Cir. 2016) (claims “directed to collecting and analyzing information to detect misuse and notifying a user when misuse is detected” were drawn to an unpatentable abstract idea); In re TLI Commc’ns LLC Patent Litig., 823 F.3d at 611 (claims were “directed to the abstract idea of classifying and storing digital images in an organized manner”); Elec. Power Grp., LLC v. Alstom S.A., 830 F.3d 1350, 1354 (Fed. Cir. 2016) (claims directed to an abstract idea because “[t]he advance they purport to make is a process of gathering and analyzing information of a specified content, then displaying the results, and not any particular assertedly inventive technology for performing those functions”); see also id. (collecting cases). However, the determination of whether other types of computer-implemented claims are abstract has proven more “elusive.” See, e.g., Internet Patents Corp. v. Active Network, Inc., 790 F.3d 1343, 1345 (Fed. Cir. 2015) (“[P]recision has been elusive in defining an all-purpose boundary between the abstract and the concrete.”) As a result, in addition to comparing claims to prior U.S. Supreme Court and Federal Circuit precedents, courts considering computer-implemented inventions have taken varied approaches to determining whether particular claims are directed to an abstract idea. For example, courts have considered whether the claims purport to “improve the functioning of the computer itself,” Alice, 134 S.Ct. at 2359, which may suggest that the claims are not abstract, or instead whether “computers are invoked merely as a tool” to carry out an abstract process. Enfish, 822 F.3d at 1335; see also id. .(noting that “some improvements in computer-related technology when appropriately claimed are undoubtedly not abstract, such as a chip architecture, an LED display, and the like. Nor do we think that claims directed to software, as opposed" }, { "docid": "9659376", "title": "", "text": "“confining] the abstract idea [of providing out-of-region access to regional broadcast content] to a particular technological environment—in this case, cellular telephones”). As was the case in DIRECTV, claim 1 does not recite any specific implementation of the fundamental practice of selecting the best option based on separately-received feedback. Compare id. at 1258. Instead, it recites this fundamental practice genetically and at a high-level, and simply deploys it in the context of message routing. See ’051 patent at col. 11:43-59. “The Supreme Court and [the Federal Circuit] have repeatedly made clear that merely limiting the field of use of the abstract idea to a particular existing technological environment does not render the claims any less abstract.” DIRECTV, 838 F.3d at 1259 (citations omitted); see also, e.g., Intellectual Ventures, 838 F.3d at 1317-18 (claims abstract where fundamental practice of processing mail with business rules applied to email); Mobile Telecoms. Techs., 2016 WL 2757371, at *2, 2016 U.S. Dist. LEXIS 63067, at *6 (claims abstract where fundamental practice of sending and storing messages applied to data messages). Thus, because it simply takes an abstract idea and limits its use to a technological environment, claim 1 is directed to an abstract idea. ii. Improvement to Computer Functionality Plaintiff nevertheless contends that claim 1 of the ’051 patent is not directed to an abstract idea because it is instead directed to an “improvement in computer functionality” under Enfish. Opp’n at 8-9. Specifically, Plaintiff argues that claim 1 “takes advantage of the availability of multiple communications channels to provide more reliable feedback about message routing.” Id. at 8. This is unpersuasive. As discussed above, in Enfish, the Federal Circuit held that it is “relevant to ask whether the claims are directed to an improvement to computer functionality versus being directed to an abstract idea.” 822 F.3d at 1335. When considering claims purportedly directed to “an improvement of computer functionality,” the Court must “ask whether the focus of the claims is on the specific asserted improvement in computer capabilities ... or, instead, on a process that qualifies as an ‘abstract idea’ for which computers are invoked merely" }, { "docid": "899997", "title": "", "text": "subject matter.” Id. at 184, 101 S.Ct. 1048. In confirming pat-entability, the Supreme Court focused not on the presence of a mathematical formula but on the subject matter of the claims as a whole. Id. at 192, 101 S.Ct. 1048 (“[A] claim containing a mathematical formula” satisfies § 101 when it “implements or applies that formula in a structure or process which, when considered as a whole, is performing a function which the patent laws were designed to protect.”). Here, the relevant inquiry does not turn one way or the other just on claim l’s use of multiplication. See J.A. 35 (’308 Reexamination Certificate, col. 1 11. 34-38). Rather, the focus is on the claim as a whole. Diehr is distinguishable because, outside of the math, claim 1 of the ’303 patent is not directed to otherwise eligible subject matter. Adding one abstract idea (math) to another abstract idea (encoding and decoding) does not render the claim non-abstract. RecogniCorp argues that, as in Enfish, “the district court mischaracterized the invention using an improperly high level of abstraction that ignored the particular encoding process recited by the claims.” Appellant’s Op. Br. 11. In Enfish, we warned that “describing the claims at such a high level of abstraction and untethered from the language of the claims all but ensures that the exceptions to § 101 swallow the rule.” 822 F.3d at 1337. But the district court did not make that mistake regarding the ’303 patent. The claims of the ’303 patent are clearly directed to encoding and decoding image data. Unlike Enfish, claim 1 does not claim a software method that improves the functioning of a computer. See id. It claims a “process that qualifies as an ‘abstract idea’ for which computers are invoked merely as a tool.” Id. at 1336. This case is similar to Digitech Image Technologies, LLC v. Electronics for Imaging, Inc., 758 F.3d 1344 (Fed. Cir. 2014). There, the claims of the challenged patent were directed to the abstract idea of organizing information through mathematical correlations. Id. at 1350-51. We explained that the claim at issue “recites a" }, { "docid": "899995", "title": "", "text": "Corp., 822 F.3d 1327, 1338 (Fed. Cir. 2016), not all claims in all software patents are necessarily directed to an abstract idea, Ultramercial, Inc. v. Hulu, LLC, 772 F.3d 709, 715 (Fed. Cir. 2014). For example, we have held that software patent claims satisfy Alice step one when they are “directed to a specific implementation of a solution to a problem in the software arts,” such as an improvement in the functioning of a computer. Enfish, 822 F.3d at 1338-39. We find that claim 1 is directed to the abstract idea of encoding and decoding image data. It claims a method whereby a user displays images on a first display, assigns image codes to the images through an interface using a mathematical formula, and then reproduces the image based on the codes. See J.A. 35 (col. 1 11. 23-40). This method reflects standard encoding and decoding, an abstract concept long utilized to transmit information. Cf. Intellectual Ventures I LLC v. Capital One Fin. Corp., 850 F.3d 1332, 1340-41 (Fed. Cir. 2017) (organizing, displaying, and manipulating data encoded for human- and machine-readability is directed to an abstract concept). Morse code, ordering food at a fast food restaurant via a numbering system, and Paul Revere’s “one if by land, two if by sea” signaling system all exemplify encoding at one end and decoding at the other end. Even the ’303 patent describes “a common technique for synthesizing single images of faces involving] horizontally dividing the image of a face into bands for different features,” such that “[pjaper strips containing exemplary features [can] then be combined to form a composite drawing of a face.” J.A. 27 (col. 1 11. 37-43). RecogniCorp invokes Diamond v. Diehr, 450 U.S. 175, 101 S.Ct. 1048, 67 L.Ed.2d 155 (1981), to support its argument that claiming the use of a mathematical formula does not necessarily render a patent ineligible. RecogniCorp is correct. In Diehr, the Supreme Court held that despite a method claim’s recitation of a mathematical formula, “a physical and chemical process for molding precision synthetic rubber products falls within the § 101 categories of possibly patentable" }, { "docid": "21909652", "title": "", "text": "patent-ineligible subject matter). It is for this reason that the district court’s reliance on the patent-ineligible claims in Content Extraction & Transmission LLC v. Wells Fargo Bank, 776 F.3d 1343 (Fed. Cir. 2014) and In re TLI Communications LLC Patent Litigation, 823 F.3d 607 (Fed. Cir. 2016) was misplaced. In Content Extraction, we reviewed a series of patents claiming a method of using a computer and a scanner to extract data from hard copy documents, recognizing specific information in the extracted data, and storing that information in memory. Alice clarified that adding a computer cannot spare a claim that otherwise would be directed to an abstract idea, so we concluded that these claims were directed to “the basic concept of data recognition and storage.” Content Extraction, 776 F.3d at 1347. In TLI Communications, the invention involved assigning “classification data,” such as timestamps or dates, to digital images, sending the images to a server, extracting the classification data, and having the server take the classification data into consideration when storing the digital images. We held that the claims were “directed to the abstract idea of classifying and storing digital images in an organized manner.” TLI Commc’ns, 823 F.3d at 613. Although the claims recited the use of a phone and a server to carry out the claimed method, the claims did not “describe a new telephone, a new server, or a new physical combination of the two” and were “not directed to a specific improvement to computer functionality.” Id. at 612. The claims in Contract Extraction and TLI Communications were not directed to an improvement in computer functionality, which separates the claims in those cases from the claims in the current case. As discussed above, the claims in the ’740 patent recite an allegedly new, improved, and more efficient memory system. No analogous improvement is claimed in Content Extraction or TLI Communications. NVIDIA responds by arguing that the claims are directed to no more than “a desired result or outcome in the context of generic computer components and functionality.” Appellee Br. 23-24. According to NVIDIA, the “programmable operational characteristic” is a" }, { "docid": "7864930", "title": "", "text": "Similarly, the method of claim 1 employs a new kind of file that enables a computer security system to do things it could not do before. The security profile approach allows access to be tailored for different users and ensures that threats are identified before a file reaches a user’s computer. The fact that the security profile “identifies suspicious code” allows the system to accumulate and utilize newly available, behavior-based information about potential threats. The asserted claims are therefore directed to a non-abstract improvement in computer functionality, rather than the abstract idea of computer security writ large. Even accepting that the claims are directed to a new idea, Blue Coat argues that they remain abstract because they do not sufficiently describe how to implement that idea. To support this argument, Blue Coat points to Apple, Inc. v. Ameranth, Inc., where we invalidated claims related to a computer system that can generate a second menu from a first menu based on a selection of items on the first menu. 842 F.3d 1229, 1240-41 (Fed. Cir. 2016). In that case, we held that the patents were directed to an abstract idea because they “d[id] not claim a particular way of programming or designing the software ... but instead merely claim the resulting systems.” Id. at 1241. Blue Coat also relies on Affinity Labs, where we held that a claim related to wirelessly communicating regional broadcast content to an out-of-region recipient was abstract and patent ineligible because there was nothing in the claim “directed to how to implement [the idea]. Rather, the claim is drawn to the idea itself.” 838 F.3d at 1258. And Blue Coat also notes that, in Intellectual Ventures, we found claims directed to email filtering to be abstract and patent ineligible when there is “no restriction on how the result is accomplished ... [and] [t]he mechanism ... is not described.” 838 F.3d 1307, 1316 (Fed. Cir. 2016) (quoting Internet Patents Corp. v. Active Network, Inc., 790 F.3d 1343, 1348 (Fed. Cir. 2015)). Apple, Affinity Labs, and other similar cases hearken back to a foundational patent law principle: that a" }, { "docid": "2594533", "title": "", "text": "up unit in a telephone unit,” storing the images as digital images, transmitting the digital images and classification information to a server, and then storing the digital images in the server in light of the classification information. The court held that the claim at issue in TLI was abstract in that it was drawn to the abstract idea of classifying an image and storing the image based on its classification. While the claim required the use of concrete, tangible components such as a telephone unit and a server, the court noted that the specification made clear that the recited physical components “merely provide a generic environment in which to carry out the abstract idea of classifying and storing digital images in an organized manner.” Id. at 611. In addressing computer-implemented patents, the TLI court contrasted claims that are directed to an improvement in the functioning of a computer with claims that “simply add[ ] conventional computer components to well-known business practices” or consist only of “generalized steps to be performed on a computer using conventional computer activity.” Id. at 612. The claims in TLI were not directed to an improvement in computer functionality, but were directed to “the use of conventional or generic technology in a nascent but well-known environment.” Id. The court explained that the specification “does not describe a new telephone, a new server, or a new physical combination of the two,” but instead “describes the system and methods in purely functional terms.” Id. Thus, the court concluded, the claims “are not directed to a solution to a ‘technological problem.’ ” Id. at 613. Another case involving a similar abstract idea is Ultramercial, Inc. v. Hulu, LLC, 772 F.3d 709 (Fed. Cir. 2014). The patent at issue in that case was drawn to a method for distributing copyrighted content over the Internet, in which a consumer would be given access to copyrighted material in exchange for viewing an advertisement and the advertiser would pay for the copyrighted content. The court held that “[t]he process of receiving copyrighted media, selecting an ad, offering the media in exchange for watching" }, { "docid": "9256945", "title": "", "text": "language of the dependent claims and completely ignore the limitations of the parent claims.\" (D.I. 132 at 23-24) In Plaintiffs view, the claims \"focus on improving the use of the computers as a tool to execute a software application.\" (Id.) The \"basic character\" or \"focus\" of dependent claims 5-6, 8-9, and 11 amounts to nothing more than the abstract idea encompassed by independent claim 1 from which they all depend, namely, setting up and managing a cloud computing environment. The dependent claims add no meaningful limitations beyond this abstract idea. Instead, they broadly recite \"functional results\" for the claimed cloud computing environment, \"but [do] not sufficiently describe how to achieve these results in a non-abstract way.\" Two-Way Media, 874 F.3d at 1337. In particular, the dependent claims teach certain functional goals of the cloud computing environment. But the patent does not describe the technical details of how these methods are performed in a non-abstract way. Claims 5 and 6, for instance, are drawn to methods of \"forecasting.\" '974 patent, col. 19 IL 49-56. The specification explains that the forecasting \"may be performed using techniques such as, for example, neural networks, time-series algorithms, and regression analysis.\" Id. col. 8 11. 53-55. The specification further explains that the \"forecasting algorithms employed may be refined and updated as additional data becomes available.\" Id. col. 8 11. 57-59. However, there are no details on how the forecasting is done, and no algorithm is provided. The specification also references a \"Load Forecasting Module\" and a \"Pricing Module\" that may be used to perform these methods. Id. col. 15 11. 6-33. But, even assuming that use of such modules is a non-abstract way of performing the method of forecasting, the claim language (even applying Plaintiff's proposed constructions) does not require the use of these modules. Claims 8 and 9 recite methods for determining \"user-defined provisioning information\" using user input, a needs analysis algorithm, and geographic data. Id. col. 19 II. 58-63. The specification provides some \"[e]xamples of information that may comprise the user-defined provisioning information.\" Id. col. 6 II. 41-43. It explains that \"[i)n some embodiments," }, { "docid": "2594532", "title": "", "text": "specification provides any details regarding the manner in which the invention accomplishes the recited functions. The specification contains several other references to radio stations using the Internet to transmit their signals and communicating information by using digital broadcast signals, but it contains no further discussion of how the invention implements the delivery of ordinary broadcast radio signals to cellphones. See Dealertrack, Inc. v. Huber, 674 F.3d 1315, 1333 (Fed. Cir. 2012) (adding a “computer aided” limitation is insufficient to constitute a specific application where “[t]he claims are silent as to how a computer aids the method, the extent to which a computer aids the method, or the significance of a computer to the performance of the method”). The idea underlying the inventions in this case is akin to the ideas underlying the claims in several of this court’s recent cases. In In re TLI Communications LLC Patent Litigation, 823 F.3d 607, 610 (Fed. Cir. 2016), the claimed invention was a “method for recording and administering digital images,” which entailed “recording images using a digital pick up unit in a telephone unit,” storing the images as digital images, transmitting the digital images and classification information to a server, and then storing the digital images in the server in light of the classification information. The court held that the claim at issue in TLI was abstract in that it was drawn to the abstract idea of classifying an image and storing the image based on its classification. While the claim required the use of concrete, tangible components such as a telephone unit and a server, the court noted that the specification made clear that the recited physical components “merely provide a generic environment in which to carry out the abstract idea of classifying and storing digital images in an organized manner.” Id. at 611. In addressing computer-implemented patents, the TLI court contrasted claims that are directed to an improvement in the functioning of a computer with claims that “simply add[ ] conventional computer components to well-known business practices” or consist only of “generalized steps to be performed on a computer using conventional" }, { "docid": "20895398", "title": "", "text": "memory.” Id. at 1339, 2016 WL 2756255 at *8. The claims were therefore directed to an improvement of the functioning of the computer itself, as opposed to an abstract idea merely performed on a computer. Similarly, the claims at issue in DDR Holdings were directed to an improvement of the functionality of network technology itself. The claims there “specified] how interactions with the Internet are manipulated to yield a desired result—a result that overrides the routine and conventional sequence of events ordinarily triggered by the click of a hyperlink.” 773 F.3d at 1258. The claims thereby solved a “particular Internet-centric problem” by means that did not recite “the routine or conventional use of the Internet” to carry out a process. Id. at 1259. In contrast, the asserted claims here bear little resemblance to the claims at issue in Enfish and DDR Holdings. Although Plaintiff contends that “the [asserted [c]laims improve the functioning of the computer itself,” Opp. at 14, that conclusion does not follow from the specification of the Papst Patents or the asserted claims. The Papst Patents are directed to methods of verifying and optimizing memory tests, not to improving the computer or software components used to carry out those methods. Unlike the improvements to data structures claimed by the patents at issue in Enfish, the Papst Patents do not purport to improve the underlying technology of memory devices or particular techniques of testing memory devices. For example, the Papst Patents do not purport to improve the design, operation, or functionality of memory devices in any way. Nor do the Papst Patents disclose any improvement to the design or operation of the simulator or packer recited in the asserted claims. Indeed, as noted above, the Papst Patents offer scant detail as to how the simulator and packer should be implemented, let alone details of improvements to those components. The focus of the asserted claims is instead on “a process that qualifies as an ‘abstract idea’ for which computers are invoked merely as a tool”—specifically, using a generically claimed simulator as a tool to determine whether a memory test violates" }, { "docid": "5579663", "title": "", "text": "such terminals are the antithesis of ‘abstract.’ ”); see id. at 43-44. But, as we have said before, “merely limiting the field of use of the abstract idea to a particular ... environment does not render the claims any less abstract.” Affinity Labs of Tex., LLC v. DIRECTV, LLC, 838 F.3d 1253, 1259 (Fed. Cir. 2016); Capital One Fin., 850 F.3d at 1340 (same). Indeed, that the steps recited in the Asserted Claims are “necessarily” performed “in the physical, rather than purely conceptual, realm ... is beside the point.” Alice, 134 S.Ct. at 2358 (internal quotation marks and citation omitted). SSI also contends ' that the District Court failed to appreciate that, because the Patents-in-Suit disclose inventions claiming “speedier solutions,” the Asserted Claims do not fall within the abstract ideas realm. Appellant’s Br. 51. SSI’s argument is misplaced here because we consider the application of an abstract idea under Alice step two, not Alice step one. See, e.g., Intellectual Ventures I LLC v. Symantec Corp., 838 F.3d 1307, 1315 (Fed. Cir. 2016). SSI’s reliance on decisions from this court concerning obviousness, see Appellant’s Br. 51-52, does not change our conclusion on this point, cf. Synopsys, Inc. v. Mentor Graphics Corp., 839 F.3d 1138, 1151 (Fed. Cir. 2016) (explaining that, although some overlap occurs, the analysis under § 101 differs from that under the other patent-validity statutes). With respect to the ’003 and ’617 patents, the dissent states that those patents are directed not to any financial transaction, but to “the identification of a bank card as authorized for use in accessing a transit system.” Dissent at 1380. That characterization ignores what is actually recited in the asserted claims of the ’003 and ’617 patents. See, e.g., ’003 patent col. 14 1. 66-col. 15 1. 2 (describing use of a bankcard, a product generally used to conduct financial transactions, that provides “data” to a “bankcard reader”); ’617 patent col. 11 11. 14-17 (similar). Our mandate from the Supreme Court under Alice step one is to ascertain what the claims are “directed to,” not the “thrust,” “heart,” or “focus” of the invention," }, { "docid": "21909653", "title": "", "text": "the claims were “directed to the abstract idea of classifying and storing digital images in an organized manner.” TLI Commc’ns, 823 F.3d at 613. Although the claims recited the use of a phone and a server to carry out the claimed method, the claims did not “describe a new telephone, a new server, or a new physical combination of the two” and were “not directed to a specific improvement to computer functionality.” Id. at 612. The claims in Contract Extraction and TLI Communications were not directed to an improvement in computer functionality, which separates the claims in those cases from the claims in the current case. As discussed above, the claims in the ’740 patent recite an allegedly new, improved, and more efficient memory system. No analogous improvement is claimed in Content Extraction or TLI Communications. NVIDIA responds by arguing that the claims are directed to no more than “a desired result or outcome in the context of generic computer components and functionality.” Appellee Br. 23-24. According to NVIDIA, the “programmable operational characteristic” is a purely functional feature that simply describes “allowing data to be stored based on its characteristics.” Id. at 22. The claims, however, do not simply require a “programmable operational characteristic.” Even the broadest claim, claim 1, requires a memory system with a main memory and a cache memory, where the memory system is configured by a computer to store a type of data in the cache memory based on the type of processor connected to the memory system. Similarly, the dissent contends that the claimed programmable operational characteristic is “nothing more than a black box,” that “the patent lacks any details about how [the invention’s purpose] is achieved,” and that “because the ’740 patent does not describe how to implement the ‘programmable operational characteristic’ and requires someone else to supply the innovative programming effort, it is not properly described as directed to an improvement in computer systems.” Dissenting Op. 1263. There are three flaws with this conclusion. First, the patent includes a microfiche appendix having a combined total of 263 frames of computer code. See J.A." }, { "docid": "23463289", "title": "", "text": "we must be careful to avoid oversimplifying the claims because “[a]t some level, ‘all inventions ... embody, use, reflect, rest upon, or apply laws of nature, natural phenomena, or abstract ideas,’ ” Alice, 134 S.Ct. at 2354 (quoting Mayo, 132 S.Ct. at 1293). Cf. Diamond v. Diehr, 450 U.S. 175, 189 n. 12, 101 S.Ct. 1048, 67 L.Ed.2d 155 (1981) (cautioning that overgeneralizing claims, “if carried to its extreme, make[s] all inventions un-patentable because all inventions can be reduced to underlying principles of nature which, once known, make their implementation obvious.”). However, not every claim that recites concrete, tangible components escapes the reach of the abstract-idea inquiry. See, e.g., Alice, 134 S.Ct. at 2360 (claims that recite general-purpose computer components are nevertheless “directed to” an abstract idea); Content Extraction, 776 F.3d at 1347 (claims reciting a “scanner” are nevertheless directed to an abstract idea); Mortg. Grader, Inc. v. First Choice Loan Serv. Inc., 811 F.3d 1314, 1324-25 (Fed.Cir.2016) (claims reciting an “interface,” “network,” and a “database” are nevertheless directed to an abstract idea). On its face, representative claim 17 is drawn to the concept of classifying an image and storing the image based on its classification. While claim 17 requires concrete, tangible components such as “a telephone unit” and a “server,” the specification makes clear that the recited physical components merely provide a generic environment in which to carry out the abstract idea of classifying and storing digital images in an organized manner. And the specification’s emphasis that the present invention “relates to a method for recording, communicating and administering [a] digital image” underscores that claim 17 is directed to an abstract concept. '295 patent, col. 111.10-12. TLI’s characterization of the claimed invention also supports our conclusion at step one. In its briefs, TLI essentially parrots the disclosure of the '295 patent, asserting that claim 17 is “directed to a method for recording and administering digital images.” Appellant’s Br. 28. We recently clarified that a relevant inquiry at step one is “to ask whether the claims are directed to an improvement to computer functionality versus being directed to an abstract" }, { "docid": "9099727", "title": "", "text": "a display, assigning them image codes using a mathematical operation, and reproducing the image on another display based on the codes. Id. at 1324. The Federal Circuit upheld the district court's determination that the claims were unpatentable. It concluded that the claims were directed to an abstract idea-the mere operation of encoding and decoding data, \"an abstract concept long used to transmit information.\" Id. at 1326. Citing Digitech Image Technologies, LLC v. Electronics for Imaging, Inc., 758 F.3d 1344 (Fed. Cir. 2014), the court explained that a process that \"starts with data, adds an algorithm, and ends with a new form of data is directed to an abstract idea.\" RecogniCorp, 855 F.3d at 1327. The defendants say that is this case. While it is true that the invention in this case involves the manipulation of data, the point of the invention is not simply the transmission of data in coded form, but the conversion of the data into a form that makes the communication of the data more efficient. The specific function of the recited encoding scheme is to add efficiency to the process in a particular manner. As such, the recited protocol, even though expressed (as are all computer operations) as an algorithm, is a concrete technical contribution and not simply the embodiment of an abstract idea. A recent decision from this court is on point and illustrates the distinction nicely. In that case, Realtime Data, LLC v. Carbonite, Inc., Case No. 6:17-cv-121, 2017 WL 4693969 (E.D. Tex. Sept. 20, 2017), the court held a patent on a system for compressing data to be patent eligible. The court distinguished RecogniCorp on the ground that the invention was \"not simply encoding and decoding,\" but made a technical improvement in the process of data compression, resulting in real-time or pseudo-real-time compression. Id. at *5. Essentially the same analysis applies to the other two cases on which the defendants principally rely, Synopsys, Inc. v. Mentor Graphics Corp., 839 F.3d 1138 (Fed. Cir. 2016), and Intellectual Ventures I LLC v. Symantec Corp., 838 F.3d 1307 (Fed. Cir. 2016). The Synopsys court described the" }, { "docid": "23463290", "title": "", "text": "face, representative claim 17 is drawn to the concept of classifying an image and storing the image based on its classification. While claim 17 requires concrete, tangible components such as “a telephone unit” and a “server,” the specification makes clear that the recited physical components merely provide a generic environment in which to carry out the abstract idea of classifying and storing digital images in an organized manner. And the specification’s emphasis that the present invention “relates to a method for recording, communicating and administering [a] digital image” underscores that claim 17 is directed to an abstract concept. '295 patent, col. 111.10-12. TLI’s characterization of the claimed invention also supports our conclusion at step one. In its briefs, TLI essentially parrots the disclosure of the '295 patent, asserting that claim 17 is “directed to a method for recording and administering digital images.” Appellant’s Br. 28. We recently clarified that a relevant inquiry at step one is “to ask whether the claims are directed to an improvement to computer functionality versus being directed to an abstract idea.” See Enfish, LLC v. Microsoft Corp., No. 2015-2044, 822 F.3d 1327, 1335, 2016 WL 2756255 (Fed.Cir. May 12, 2016). We contrasted claims “directed to an improvement in the functioning of a computer” with claims “simply adding conventional computer components to well-known business practices,” or claims reciting “use of an abstract mathematical formula on any general purpose computer,” or “a purely conventional computer implementation of a mathematical formula,” or “generalized steps to be performed on a computer using conventional computer activity.” Id. at 1338. Contrary to TLI’s arguments on appeal, the claims here are not directed to a specific improvement to computer functionality. Rather, they are directed to the use of conventional or generic technology in a nascent but well-known environment, without any claim that the invention reflects an inventive solution to any problem presented by combining the two. According to the '295 patent, the problem facing the inventor was not how to combine a camera with a cellular telephone, how to transmit images via a cellular network, or even how to append classification information" }, { "docid": "1468751", "title": "", "text": "a conventional action for a computer); cf. buySAFE, 765 F.3d at 1355 (finding that a computer receiving and sending information over a network with no further specification was “not even arguably inventive”). Similarly, element B does not supply the needed innovative additional feature to prevent Claim 1 from claiming an abstract idea because it simply involves using generic computer components to perform the conventional computer function of processing data to display an input image on a display device. See, e.g., Diet-Goal Innovations LLC v. Bravo Media LLC, 33 F.Supp.3d 271, 286-87 (S.D.N.Y.2014) (finding that “displaying [] results on a visual display” amounted to a conventional computer task); Intellectual Ventures I, LLC v. Capital One Fin. Corp., Civil Action No. 1:13-cv-00740 (AJT/TRJ), 2014 WL 1513273, at *2-3 (E.D.Va. Apr. 16, 2014) (implicitly finding that the element of “displaying the data stream via an interactivé interface” did not establish that the implementation of an abstract idea rendered it patent-eligible). The generic limitation in element C of “adding to the displayed at least one input image at least one digital representation of at least one physical locate mark so as to generate a marked-up image” including such digital representation is also far from a transformative concept because it only involves a generic computerization of the traditional process of manually “identifying] the approximate location of the locate marks ... present at the dig area” on a “sketch or drawing of the dig area,” as indicated in the '204 patent’s specification. See '204 patent at 2:17-22; Wolf, 2014 WL 7639820, at *11-12, 2014 U.S. Dist. LEXIS 156527, at *35 (finding that the elements of a claim did not transform the abstract idea to which the claim was directed because “taken individually and as a whole, the independent claims [did] nothing more than recite a series of conventional steps carried out using basic camera and computer functions and mostly essential to placing searchable event photographs online for inspection and ordering,” the abstract idea to which those patents were directed). The fourth element of Claim 1, element D, also lacks an innovative concept sufficient to transform such" } ]

[ { "docid": "2053299", "title": "", "text": "farmer-owned and operated agencies rather than federal instrumentalities.”). III. Andrews nonetheless claims that the Bank’s termination of him qualifies as state action, because the Bank was an agent or instrumentality of the federal government. Alternatively, Andrews claims that the Board was a joint participant in the decision to terminate him. We -recognize that the many private characteristics of the Bank’s operations cannot end the inquiry. In certain circumstances, a private actor can still be bound by constitutional limitations because its “conduct is fairly attributable to the state.” Arlosoroff v. National Collegiate Athletic Ass’n, 746 F.2d 1019, 1021 (4th Cir.1984) (footnote omitted). In order to show state action by a private entity, however, it must be demonstrated that “the private party charged with the deprivation could be described in all fairness as a state actor.” Edmonson, — U.S. at -, 111 S.Ct. at 2083 (citations omitted). A private party can be deemed a state actor in four contexts: (1) when the state has coerced the private actor to commit an act that would be unconstitutional if done by the state; (2) when the state has sought to evade a clear constitutional duty through delegation to a private actor; (3) when the state has delegated a traditionally and exclusively public function to a private actor; or (4) when the state has committed an unconstitutional act in the course of enforcing a right of a private citizen. If the conduct does not fall into one of these four categories,. then the private conduct is not an action of the state. Applying these categories to the instant case, we find no state action in Andrews’ termination. A. The first category, coercion by the state, stands for the obvious proposition that when the government orders specific conduct, it must be held accountable for that conduct. The presumption in favor of respecting the private choice of individuals is dissolved by the force of state command. “When the State has commanded a particular result, it has saved to itself the power to determine that result and ... has removed that decision from the sphere of private choice.”" } ]

[ { "docid": "22550750", "title": "", "text": "to placement in a particular private school may also elect to place their child in a private school of their choice; in such cases, they must pay the tuition. Amicus curiae Massachusetts Association of 766 Approved Private Schools, Inc., of which the New Perspectives School is a member, informs the Court that many of its members have a student population which is more or less evenly divided between students referred and paid for by the State and students referred and paid for by their parents or guardians. Brief as Amicus Curiae 3. The record does not contain details of the school’s contract with the Brookline School Committee. Title 42 U. S. C. § 1983 provides: “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.” The Fourteenth Amendment provides, in pertinent part: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law . . . The Court has concluded that the acts of a private party are fairly attributable to the state on certain occasions when the private party acted in concert with state actors. For example, in Adickes v. S. H. Kress & Co., 398 U. S. 144, 155-156 (1970), the issue was whether a restaurant violated § 1983 by refusing service to a white teacher who was in the company of six Negro students; the town sheriff arrested the white teacher for vagrancy as a result of her request to be served lunch in their company. The Court concluded that the restaurant acted under color of state law because it conspired with the sheriff, a state actor," }, { "docid": "22571387", "title": "", "text": "this appeal, we must decide whether the record conclusively establishes on the basis of uncontro-verted facts that (1) the Fire Company is not a state actor subject to suit under 42 U.S.C. § 1983 and (2) Haavistola and the Fire Company did not share an employee/employer relationship governed by Title VII. A 42 U.S.C. § 1983 provides, in relevant part, that: “[e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States ... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.” To establish a claim under section 1983, a plaintiff must prove two elements: First, the plaintiff must prove that the defendant has deprived him of a right secured by the “Constitution and laws” of the United States. Second, the plaintiff must show that the defendant deprived him of this constitutional right “under col- or of any statute, ordinance, regulation, custom, or usage, of any State or Territory.” Adickes v. S.H. Kress & Co., 398 U.S. 144, 150, 90 S.Ct. 1598, 1604, 26 L.Ed.2d 142 (1970) (quoting 42 U.S.C. § 1983). In cases construing section 1983, “under color” of law has been treated consistently as equivalent to the “state action” requirement under the Fourteenth Amendment. Rendell-Baker v. Kohn, 457 U.S. 830, 838, 102 S.Ct. 2764, 2769, 73 L.Ed.2d 418 (1982). In this case the Fire Company asserted and the district court agreed that the Fire Company did not act with the requisite state action to establish the second element needed to make out a successful claim under section 1983. Haavistola v. Community Fire Co., 812 F.Supp. 1379, 1390-1400 (D.Md.1993). The issue for our review is whether the Fire Company, a private corporation organized under the laws of Maryland, funded to some extent through state and local resources, and regulated extensively by the State of Maryland, acted under color" }, { "docid": "23480181", "title": "", "text": "tion and its employees and agents act under color of state law for purposes of 42 U.S.C. § 1983 when they perform surgery on seized pets against the owner’s wishes or without the owner’s knowledge. This case therefore presents an issue of first impression for our Court. Section 1983 provides that “[e]very person who, under color of any [state] statute, ordinance, regulation, custom, or usage ... subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.” 42 U.S.C. § 1983. “Because the United States Constitution regulates only the Government, not private parties, a litigant claiming that his constitutional rights have been violated must first establish that the challenged conduct constitutes state action.” Flagg v. Yonkers Sav. & Loan Ass’n, 396 F.3d 178, 186 (2d Cir.2005) (internal quotation marks omitted). “A plaintiff pressing a claim of violation of his constitutional rights under § 1983 is thus required to show state action.” Tancredi v. Metro. Life Ins. Co., 316 F.3d 308, 312 (2d Cir.2003); see also Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass’n, 531 U.S. 288, 295 n. 2, 121 S.Ct. 924, 148 L.Ed.2d 807 (2001) (“If a defendant’s conduct satisfies the state-action requirement of the Fourteenth Amendment, the conduct also constitutes action ‘under color of state law’ for § 1983 purposes.”). “[S]tate action requires both an alleged constitutional deprivation ‘caused by the exercise of some right or privilege created by the State or by a rule of conduct imposed by the State or by a person for whom the State is responsible,’ and that ‘the party charged with the deprivation must be a person who may fairly be said to be a state actor.’ ” Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50, 119 S.Ct. 977, 143 L.Ed.2d 130 (1999), quoting Lugar v. Edmondson Oil Co., 457 U.S. 922, 937, 102 S.Ct." }, { "docid": "18353859", "title": "", "text": "States, 594 F.2d 280, 287 (1st Cir.1979); Boston Public Housing Tenants Council, Inc. v. Lynn, 388 F.Supp. 493 (D.Mass.1974). The courts have concluded that section 1437 represents a general statement of policy, “too amorphous to create a cause of action.” Perry v. Housing Authority, 486 F.Supp. 498, 502 (D.S.C.1980). The Court, having been presented with no Compelling reason why it should depart from the precedent construing the legislative history and statutory language of the USHA, finds that plaintiffs do not have a private right of action to enforce the policy statement set forth in section 1437. The Court now turns to plaintiffs’ contention that they have a statutory cause of action under 42 U.S.C. § 1983. Section 1983 provides in pertinent part: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or ... the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or any other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. 42 U.S.C. § 1983. While the statute does not create substantive rights, it provides an express cause of action to redress a deprivation by state officials of rights secured by federal law. Maine v. Thiboutot, 448 U.S. 1, 100 S.Ct. 2502, 65 L.Ed.2d 555 (1980) . Since a plaintiff is not required to show congressional intent to preserve section 1983 remedies, the burden of demonstrating an actionable section 1983 violation is less stringent than that required in the private right of action context. See Middlesex County Sewerage Authority v. National Sea Clammers Ass’n, 453 U.S. 1, 21, 101 S.Ct. 2615, 2627, 69 L.Ed.2d 435 (1981) . “Instead, Congress is, in effect, presumed to legislate against the background of section 1983 and thus to contemplate private enforcement of the relevant statute against state and municipal actors absent fairly discernible congressional intent to the contrary.” Samuels v. District of Columbia, at 194." }, { "docid": "7008458", "title": "", "text": "Marlene Wesley, and Dr. Hardy, because Maryland’s involuntary commitment statute required them to conduct the evaluation that led to her involuntary commitment. As a result, Peller contends that WAH and its personnel were state actors. We conclude, however, that the statutory scheme, when viewed as a whole, is more permissive than mandatory, and that it grants private physicians complete medical discretion in determining whether an individual should be involuntarily committed. Ae- cordingly, we decline to hold the private individuals to be state actors and dismiss Peller’s § 1983 claims against them. Section 1983 of Title 42 provides that Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State ... subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be ha-ble to the party injured. 42 U.S.C.A. § 1983 (West Supp.1997). Under the express terms of the statute, § 1983 applies only to those persons who act “under color” of law. See Lugar v. Edmondson Oil Co., 457 U.S. 922, 937, 102 S.Ct. 2744, 2753-54, 73 L.Ed.2d 482 (1982) (holding that a § 1983 claim requires a showing that “the conduct allegedly causing the deprivation of [the plaintiffs rights] be fairly attributable to the State”). WAH, Nurse Wesley, and Dr. Hardy are all private entities or individuals, not state employees. This Court has identified three situations, however, in which a private party’s conduct may constitute “state action.” A private entity regulated by the state acts under color of state law (1) when there is either a sufficiently close nexus, or joint action between the state and the private party; (2) when the state has, through extensive regulation, exercised coercive power over, or provided significant encouragement to, the private actor; or (3) when the function performed by the private party has traditionally been an exclusive public function. See Conner v. Donnelly, 42 F.3d 220, 223-24 (4th Cir.1994) (citing Blum v. Yaretsky, 457 U.S. 991, 1004-05, 102 S.Ct. 2777, 2785-86, 73" }, { "docid": "19313100", "title": "", "text": "to deprive her of her rights and privileges under federal law, including but not limited to her rights under §§ 524, 525 and 727(b), her right to a discharge in bankruptcy, her right to freedom from suits and collection activity, her right not to be discriminated against with regard to debts discharged in bankruptcy. 24. Therefore defendants ... violated 42 U.S.C. § 1983. Complaint ¶¶ 23 and 24. Section 1983 provides: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. 42 U.S.C. § 1983. In Maine v. Thiboutot, 448 U.S. 1, 100 S.Ct. 2502, 65 L.Edüd 555 (1980), the United States Supreme Court considered whether § 1983 encompasses deprivation of rights secured by purely federal statutory law. The Court rejected a limitation on the applicability of § 1983 to constitutional claims and found a § 1983 violation properly pled in the context of an asserted violation of rights granted under the Social Security Act. Moreover, it held that such statutory claims were covered by the Civil Rights Attorney’s Act of 1976, 42 U.S.C. § 1988. In dissent, Justices Powell, Burger and Rehnquist criticized the “dramatic” expansion of liability of state and local officials resulting from the majority’s transformation of purely statutory claims into civil rights actions under § 1983 and “virtual elimination” of the “American Rule” in suits against those officials. Id. at 12, 100 S.Ct. 2502. That the extreme result presaged by the dissent was not to follow became clear the next term when the Court clarified its ruling in Thiboutot by noting two exceptions to the application of § 1983 to statutory violations: (1) where Congress has foreclosed private enforcement in the statute itself (i.e., the governing statute provides the exclusive remedy for violations" }, { "docid": "21686855", "title": "", "text": "U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Corneal v. Jackson Township, 313 F.Supp.2d 457, 464 (M.D.Pa.2003) (“[T]he non-moving party may not simply sit back and rest on the allegations in its complaint”), aff'd, 94 Fed.Appx. 76 (3d Cir.2004). Only if this burden is met, through submission of sufficient evidence to sustain favorable jury findings with respect to each essential element of the claim, can the cause of action proceed. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-57, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-89, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); see Fed.R.Civ.P. 56(c), (e) (requiring production of evidence “showing that there is a genuine issue for trial”). Otherwise, summary judgment must “be rendered forthwith” against the adverse party. Id. III. Discussion Section 1983 of Title 42 of the United States Code offers private citizens a cause of action for violations of federal law by state officials. See 42 U.S.C. § 1983. The statute provides, in pertinent part, as follows: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.... Id. Section 1983 is not a source of substantive rights, but merely a method to vindicate violations of federal law committed by state actors. Gonzaga Univ. v. Doe, 536 U.S. 273, 284-85, 122 S.Ct. 2268, 153 L.Ed.2d 309 (2002); Kneipp v. Tedder, 95 F.3d 1199, 1204 (3d Cir.1996). The claims in this case invoke the broad and amorphous protections of due process. The Fourteenth Amendment provides that “[n]o state shall ... deprive any person of ... property, without due process of law.” U.S. Const. amend. XIV, § 1. From this short phrase has emerged an immense" }, { "docid": "404499", "title": "", "text": "claim arguing that no dispute of material fact exists and judgment is ripe as a matter of law. Specifically, defendant contends that: 1) any constitutional harm suffered by Jennifer Bosley was at the hands of private persons not acting under color of state law; 2) that the school district has no constitutional or federal duty to protect students from private actors; 3) that no evidence exists to show that Superintendent Logerwell knew of the alleged misconduct until after plaintiffs complaint was filed with the Missouri Division of Human Rights; and 4) that any omissions or commissions by other school district employees regarding the plaintiffs complaints of constitutional harm cannot be imputed by operation of law to Superintendent Logerwell or the Kearney R-l School District. B. Analysis The United States Congress stated in 42 U.S.C. § 1983 as Mows: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proceeding for redress____ The statute was designed to deter state actors from using their authority to deprive individuals of their federally guaranteed rights and to provide relief to victims if deterrence failed. Wyatt v. Cole, 504 U.S. 158, 161, 112 S.Ct. 1827, 1830, 118 L.Ed.2d 504 (1992). Under 42 U.S.C. § 1983, plaintiff must show that 1) the defendant acted under color of state law; 2) the defendant’s action involves one or more violations of plaintiffs constitutional rights; and 3) that the constitutional harm suffered was actually and proximately caused by the defendant’s conduct. Chapman v. Musich, 726 F.2d 405, 407 (8th Cir.1984), cert. denied, 469 U.S. 931, 105 S.Ct. 325, 83 L.Ed.2d 262 (1984). In applying the second requirement of a § 1983 action, Jennifer Bosley asserts a substantive due process claim against the defendant school district" }, { "docid": "23480180", "title": "", "text": "instead shows a messy house.” We agree with the district court that no genuine issues of material fact remain on any of Fabrikant’s federal claims, and that defendants are entitled to summary judgment. However, we reach that conclusion for reasons different in some respects from those articulated by the district court. See Bruh v. Bessemer Venture Partners III L.P., 464 F.3d 202, 205 (2d Cir.2006) (observing that “we may affirm on any basis for which there is sufficient support in the record, including grounds not relied on by the district court”). Most notably, we disagree with part of the district court’s state-action analysis. We conclude that the SPCA defendants engaged in state action when they performed surgery on the seized dogs prior to sending them to foster homes. However, we also conclude that, as state actors, those defendants are entitled to qualified immunity, because the due process rights asserted by Fabrikant were not “clearly established” at the time of defendants’ challenged actions. I. State Action We have not previously addressed whether a private animal-rescue organiza tion and its employees and agents act under color of state law for purposes of 42 U.S.C. § 1983 when they perform surgery on seized pets against the owner’s wishes or without the owner’s knowledge. This case therefore presents an issue of first impression for our Court. Section 1983 provides that “[e]very person who, under color of any [state] statute, ordinance, regulation, custom, or usage ... subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.” 42 U.S.C. § 1983. “Because the United States Constitution regulates only the Government, not private parties, a litigant claiming that his constitutional rights have been violated must first establish that the challenged conduct constitutes state action.” Flagg v. Yonkers Sav. & Loan Ass’n, 396 F.3d 178, 186 (2d Cir.2005) (internal quotation marks omitted). “A" }, { "docid": "9667502", "title": "", "text": "322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Pappas, 331 F.Supp.2d at 314. “Such affirmative evidence — regardless of whether it is direct or circumstantial — must amount to more than a scintilla, but may amount to less (in the evaluation of the court) than a preponderance.” Saldana v. Kmart Corp., 260 F.3d 228, 231-32 (3d Cir.2001) (quoting Williams v. Borough of West Chester, 891 F.2d 458, 460-61 (3d Cir.1989)). Only if this burden is met can the cause of action proceed. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-57, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-89, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); see Fed. R. Civ. P. 56(c), (e). III. Discussion Section 1983 of Title 42 of the United States Code offers private citizens a cause of action for violations of federal law by state officials. See 42 U.S.C. § 1983. The statute provides, in pertinent part, as follows: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress .... Id.; see also Gonzaga Univ. v. Doe, 536 U.S. 273, 284-85, 122 S.Ct. 2268, 153 L.Ed.2d 309 (2002). To establish a civil rights claim, the plaintiff must show a “deprivation” of a constitutional or statutory right by a person “acting under color of state law.” Id. Satisfaction of these elements, however, does not guarantee recovery. Certain officials, including police officers and other state actors who perform “discretionary functions,” are shielded from suit if their conduct did not violate a “clearly established statutory or constitutional right[ ] of which a reasonable person would have known.” Saucier v. Katz, 533 U.S. 194, 200-01, 121 S.Ct. 2151, 150 L.Ed.2d 272" }, { "docid": "2993941", "title": "", "text": "provides: “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.” 42 U.S.C. § 1983. A person acts “under color of state law” when he or she “exercisefs] power ‘possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law.’ ” Bonenberger v. Plymouth Twp., 132 F.3d 20, 24 (3d Cir.1997) (quoting West v. Atkins, 487 U.S. 42, 49, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988)). The undisputed facts present a close question as to whether Officer Ferentz and Mayor Fox were acting as state actors when they initiated criminal proceedings against Pomykacz. Officer Ferentz and Mayor Fox contacted Cape May County Assistant Prosecutor DeWeese, who was the prosecutor on call for the night, to consult with her about possible charges against Pomykacz. Then, in the middle of the night, Officer Ferentz and Mayor Fox managed to have their criminal complaint delivered to Judge Belasco’s home and a warrant issued for Pomykacz’s arrest. Private citizens do not have such ease of access to the County Prosecutor’s Office or judges at any time, and certainly not after-hours. In the normal course of a citizen’s complaint of stalking or harassment, a private citizen makes a complaint to law en forcement officers who may thereafter contact the county prosecutor. In this case, Officer Ferentz and Mayor Fox used their authority as law enforcement officials to contact the county prosecutor directly. At the very least, they were acting simultaneously as private citizens and law enforcement officials at that time. Given Officer Ferentz’s and Mayor Fox’s unusual access to the local criminal process and the factual subtleties implicated in this case, the Court will assume for the" }, { "docid": "12611051", "title": "", "text": "n. 6, and declined to exercise supplemental jurisdiction over the state law claims, id. at *6. Judgment for defendants was entered on April 30, 2007, and this appeal followed. DISCUSSION On appeal, the Sybalskis challenge the District Court’s determination that they failed adequately to plead state action in support of their section 1983 claims. Pursuant to section 1983, anyone acting “under color of any [state] statute, ordinance, regulation, custom, or usage,” who causes a United States citizen to be deprived “of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.” 42 U.S.C. § 1983. The Supreme Court has explained that “[t]he purpose of § 1983 is to deter state actors from using the badge of their authority to deprive individuals of their federally guaranteed rights and to provide relief to victims if such deterrence fails.” Wyatt v. Cole, 504 U.S. 158, 161, 112 S.Ct. 1827, 118 L.Ed.2d 504 (1992). Accordingly, we have held that “[a] plaintiff pressing a claim of violation of his constitutional rights under § 1983 is thus required to show state action.” Tancredi v. Metro. Life Ins. Co., 316 F.3d 308, 312 (2d Cir.2003). For the purposes of section 1983, the actions of a nominally private entity are attributable to the state when: (1) the entity acts pursuant to the “coercive power” of the state or is “controlled” by the state (“the compulsion test”); (2) when the state provides “significant encouragement” to the entity, the entity is a “willful participant in joint activity with the [s]tate,” or the entity’s functions are “entwined” with state policies (“the joint action test” or “close nexus test”); or (3) when the entity “has been delegated a public function by the [s]tate,” (“the public function test”). Brentwood Acad. v. Tenn. Secondary Sch. Ath. Ass’n, 531 U.S. 288, 296, 121 S.Ct. 924, 148 L.Ed.2d 807 (2001) (citations and internal quotation marks omitted). It is not enough, however, for a plaintiff to plead state involvement in “some activity of the institution" }, { "docid": "7508271", "title": "", "text": "government actions regardless of the fairness of the procedures used to implement them.” Daniels v. Williams, 474 U.S. 327, 331, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986). Violation of substantive due process rights pursuant to the Fourteenth Amendment of the U.S. Constitution is remedied through 42 U.S.C. § 1983: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State ... subjects, or causes to be subjected, any citizen of the United States ... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. 42 U.S.C. § 1983. This section, enacted in its original form in 1871, was specifically designed to provide a means for redress of violations of the rights protected under the Fourteenth Amendment by state actors. As described by the United States Supreme Court, § 1983 developed in the following manner: As a result of the new structure of law that emerged in the post-Civil War era — and especially of the Fourteenth Amendment, which was its centerpiece — the role of the Federal Government as guarantor of basic federal rights against state power was clearly established.... Section 1983 opened the Federal Courts to private citizens, offering a uniquely federal remedy against incursions under the claimed authority of state law upon rights secured by the Constitution and laws of the Nation. * * ❖ * * * The very purpose of § 1983 was to interpose the Federal Courts between the states and the people, as guardians of the people’s federal rights — to protect the people from unconstitutional action under color of state law, ‘whether that action be executive, legislative, or judicial.’ Mitchum v. Foster, 407 U.S. 225, 238-40, 242, 92 S.Ct. 2151, 32 L.Ed.2d 705 (1972). • While implemented to provide a means of redress for the deprivation of life, liberty or property by state action, neither § 1983 nor the Fourteenth Amendment transform mere torts into constitutional violations. Daniels, 474 U.S. at 332," }, { "docid": "14112102", "title": "", "text": "Id. (citations omitted). Moreover, as Higgins filed his complaint pro se, we must liberally construe his pleadings, and we will “apply the applicable law, irrespective of whether a pro se litigant has mentioned it by name.” Holley v. Dep’t of Veteran Affairs, 165 F.3d 244, 247-48 (3d Cir.1999). Section 1983 authorizes a person to file a private cause of action against state actors for a deprivation of rights protected by a federal statute or the United States Constitution. Section 1983 provides in pertinent part: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suite in equity, or other proper proceeding for redress.... 42 U.S.C. § 1983. It is undisputed that the ADTC employees were state actors who deprived Higgins of funds derived from his VA disability benefits check without his consent under color of a state court order issued pursuant to N.J.Stat.Ann. § 2C:43-3.1(a)(3). A. We must first consider whether Higgins alleged sufficient facts to demonstrate .a violation of 38 U.S.C. § 5301(a). Section 5301(a) provides in relevant part: Payments of benefits due or to become due under any law administered by the Secretary shall not be assignable except to the extent specifically authorized by law, and such payments made to, or on account of, a beneficiary shall be exempt from taxation, shall be exempt from the claim of creditors, and shall not be liable to attachment, levy, or seizure by or under any legal or equitable process whatever, either before or after receipt by the beneficiary. The preceding sentence shall not apply to claims of the United States arising under such laws nor shall the exemption therein contained as to taxation extend to any property purchased in part or wholly out of such payments.... 38 U.S.C. § 5301(a). In" }, { "docid": "22854088", "title": "", "text": "allegations of pleadings and must do more than create some metaphysical doubt.’ ” Id. (quoting [Petruzzi’s IGA Supermarkets, Inc. v. Darling-Delaware Co., 998 F.2d 1224, 1230 (3d Cir.), cert. denied, [— U.S.-], 114 S.Ct. 554 [126 L.Ed.2d 455] (1993) ]). Id. at 1423. III. Discussion In cases involving the scope of liability under a federal statute, it always is appropriate to begin with the statutory language. 42 U.S.C. § 1983 provides in pertinent part that: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. “By its terms, of course, the statute creates no substantive rights; it merely provides remedies for deprivations of rights established elsewhere.”. City of Oklahoma City v. Tuttle, 471 U.S. 808, 816, 105 S.Ct. 2427, 2432, 85 L.Ed.2d 791 (1985) (plurality opinion). Thus, “[t]o establish a claim under 42 U.S.C. § 1983, [a plaintiff] must démonstrate a violation of a right secured by the Constitution and the laws of the United States [and] that the alleged deprivation was committed by a person acting under color of state law.” Moore v. Tartler, 986 F.2d 682, 685 (3d Cir.1993). Here, Mark claims that he was deprived of his substantive due process rights guaranteed by the Fourteenth Amendment. The district court opinion focused principally on whether Enterprise could be considered a state actor for section 1983 purposes. That is where, then, we will begin our analysis. A. Is Enterprise a State Actor? “Although a private [party] may cause a deprivation of ... a right, [it] may be subjected to liability under § 1983 only when [it] does so under color of law.” Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 156, 98 S.Ct. 1729, 1733, 56 L.Ed.2d 185 (1978). The Supreme Court has clarified that “[i]n" }, { "docid": "13117736", "title": "", "text": "federal and pendant state law claims. Specifically, the district court found that Stephens was not a “state actor” for purposes of Section 1983. The judge’s Order also declined to retain pendant jurisdiction over Johnson’s state law claims. Johnson timely appealed the Order to this Court on October 16, 2002. We affirm. II. ANALYSIS “We review a district court’s grant of summary judgment de novo, construing all facts and inferences in the light most favorable to the non-moving party.” Williams v. Waste Mgmt. of Ill., 361 F.3d 1021, 1028 (7th Cir.2004). Summary judgment is appropriate where “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed. R.Civ.P. 56(c). 42 U.S.C. § 1983 provides in pertinent part that “[e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any State ... subjects, or causes to be subjected, any citizen of the United States ... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law.” 42 U.S.C. § 1983. While generally employed against government officers, the language of § 1983 authorizes its use against private individuals who exercise government power; that is, those individuals who act “under color of state law.” Payton v. Rush-Presbyterian-St. Luke’s Med. Ctr., 184 F.3d 623, 628 (7th Cir.1999). This Court held in Payton v. Rush-Presbyteriaur-St. Luke’s Medical Center that a private party will be deemed to have acted under “color of state law” when the state either (1) “effectively directs or controls the actions of the private party such that the state can be held responsible for the private party’s decision”; or (2) “delegates a public function to a private entity.” Id. Johnson argues, in accord with the latter theory, that Stephens should be considered a state actor due to his status as a special policeman, duly appointed under Chicago Municipal Code §" }, { "docid": "20732305", "title": "", "text": "is a state actor. Section 1983 provides, [ejvery person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. 42 U.S.C. § 1983. Similarly, the New Jersey Civil Rights Act provides, in relevant part, [a]ny person who has been deprived of any substantive due process or equal protection rights, privileges or immunities secured by the Constitution or laws of the United States, or any substantive rights, privileges or immunities secured by the Constitution or laws of this State, or whose exercise or enjoyment of those substantive rights, privileges or immunities has been interfered with or attempted to be interfered with, by threats, intimidation or coercion by a person acting under color of law, may bring a civil action for damages and for injunctive or other appropriate relief. N.J.S.A. 10:6-2(c) (emphasis added). With regard to the § 1983 color of law analysis, the Third Circuit has most recently explained, [although there is no simple line between state and private actors, we have explained that the principal question at stake is whether there is such a close nexus between the State and the challenged action that seemingly private behavior may be fairly treated as that of the State itself. To answer that question, we have outlined three broad tests generated by Supreme Court jurisprudence to determine whether state action exists: (1) whether the private entity has exercised powers that are traditionally the exclusive prerogative of the state; (2) whether the private party has acted with the help of or in concert with state officials; and (3) whether the state has so far insinuated itself into a position of interdependence with the acting party that it must be recognized as a joint participant in the challenged activity." }, { "docid": "15568120", "title": "", "text": "part that “[e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any State ... subjects, or causes to be subjected, any citizen of the United States ... to the deprivation of any rights, privileges, or immunities secured by the Constitution and law, shall be liable to the party injured in an action at law.” 42 U.S.C. § 1983. Although it is usually used only against government officers because of its requirement that the defendant act “under color of state law,” § 1983 may also be brought to bear on private individuals who exercise government power. Erwin Chemerinsky, Federal Jurisdiction, 464-65 (3rd ed.1999). The Supreme Court has left open the question of whether private police officers can be held liable as state actors under § 1983. Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 163, 98 S.Ct. 1729, 56 L.Ed.2d 185 (1978). We have also previously demurred from directly answering this question. Iskander v. Village of Forest Park, 690 F.2d 126, 128 n. 1 (7th Cir.1982). However, under relevant Seventh Circuit precedent, privately employed railroad police have been deemed state actors. United States v. Hoffman, 498 F.2d 879, 881-82 (7th Cir.1974). In well-reasoned opinions, district courts in this circuit have held that private hospital security guards and university policemen also can be state actors. See Scott v. Northwestern University School of Latu, 1999 WL 134059 at *3-4 (N.D.Ill. March 8, 1999); Stokes v. Northwestern Memorial Hospital, 1989 WL 84584 at *3-4. (N.D.Ill. July 24, 1989). On the other hand, this court has held that a private mall security force was not a state actor, because the guards exercised no “police powers.” United States v. Shahid, 117 F.3d 322, 324 (7th Cir.1997). We have also held on summary judgment and after extensive fact finding that a private security guard operating under a contract with the Chicago Housing Authority was not a state actor. Wade v. Byles, 83 F.3d 902, 906 (7th Cir.1996). The present case falls closer to Hoffman than Shahid or Wade. There are two circumstances in which a private party will be held responsible as" }, { "docid": "541974", "title": "", "text": "Concrete Co., Inc., 500 U.S. 614, 619, 111 S.Ct. 2077, 114 L.Ed.2d 660 (1991). While this limitation on the reach of the Constitution is fundamental to our federal system, it is not without boundaries. Indeed, were this limitation boundless, states, government agencies, and government officials could avoid constitutional limits and obligations by simply delegating core governmental functions to private actors. This victory of form over substance is not permitted under the guise of federalism; thus, where “governmental authority ... dominate^] an activity to such an extent that its participants must be deemed to act with the authority of the government[, the ostensibly private participants are] subject to constitutional constraints.” Id. at 620, 111 S.Ct. 2077. Mirroring this pragmatic scheme, section 1983 of Title 42 provides, in pertinent part, that Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State ..., subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. 42 U.S.C. § 1983. This statute, promulgated as part of the Civil Rights Act of 1871, provides “the party injured” with a cause of action for violations of constitutional rights by “every person,” that is, both private persons and private entities, but liability is imposed only for deprivations carried out under color of law. Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 156, 98 S.Ct. 1729, 56 L.Ed.2d 185 (1978). “In cases construing section 1983, ‘under color’ of law has been treated consistently as equivalent to the ‘state action’ requirement under the Fourteenth Amendment.” Haavistola v. Community Fire Co. of Rising Sun, Inc., 6 F.3d 211, 215 (4th Cir.1993) (citing Rendell-Baker v. Kohn, 457 U.S. 830, 838, 102 S.Ct. 2764, 73 L.Ed.2d 418 (1982)). As the Supreme Court recently reaffirmed, two principles guide state action determinations: [S]tate action requires both an alleged constitutional deprivation “caused by the exercise of" }, { "docid": "5261873", "title": "", "text": "1983. Plaintiff alleges that Gannett, through its officers and employees, entered into an agreement with a state actor, Relin, to deny plaintiff her First Amendment rights to freedom of speech and freedom of the press, and that, acting in concert with that state actor, Gannett did deny plaintiff those constitutional rights. Plaintiff also alleges that Gannett, acting in concert with Relin, punished plaintiff in retaliation for her exercise of her First Amendment rights. Plaintiff seeks compensatory and punitive damages, and attorney’s fees. DISCUSSION I. Defendant’s Motion to Dismiss A. “Under Color of State Law” Requirement-General Principles Section 1983 provides in relevant part: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress ... In order to state a claim under § 1983, therefore, “a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law.” West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988). Action taken “under color” of law “has consistently been treated as the same thing as the ‘state action’ required under the Fourteenth Amendment.” Rendell-Baker v. Kohn, 457 U.S. 830, 838, 102 S.Ct. 2764, 73 L.Ed.2d 418 (1982) (quoting United States v. Price, 383 U.S. 787, 794 n. 7, 86 S.Ct. 1152, 16 L.Ed.2d 267 (1966)). In this case, plaintiff has elected not to sue the state official, Relin, but names a private entity, Gannett. Gannett contends, therefore, that the complaint does not allege facts showing state action. Plaintiff has only alleged that Gannett, a private actor, made decisions about what it wished to print in its own newspaper." } ]

[ { "docid": "10424168", "title": "", "text": "revised Subpart B of Regulation J to apply the provisions of U.C.C. Article 4A to funds transfers handled by Federal Reserve banks. The official commentary to the U.C.C. provisions in Regulation J, Subpart B provide that the official comments to U.C.C. Article 4A, while not incorporated in Subpart B or its official commentary, may nonetheless “be useful in interpreting Article 4A.” Recently, electronic funds transfers, also known as wire transfers, have become increasingly utilized by businesses and financial institutions to effect payments and transfers of a vast volume of funds. The success of funds transfer systems is predicated on speed, efficiency, high volume, low cost, certainty, and finality. The drafters of the U.C.C. considered these factors in assessing liabilities under Article 4A: This system of pricing may not be feasible if the bank is exposed to very large liabilities in connection with the transaction.... A major policy issue in the drafting of Article 4A is that of determining how risk of loss is to be allocated given the price structure in the industry. U.C.C. § 4A-101, Prefatory Note. IV. Donmar contends that Regulation J does not pre-empt its state law negligence and wrongful payment claims and that the district court erred in dismissing these causes of action. In considering the preemptive effect of federal law, including federal regulations, we first look to the regulation to determine the expressed pre-emptive intent of the Federal Reserve Board. Regulation J itself contains a preemption standard: [Regulations of the Board may pre-empt inconsistent provisions of state law. Accordingly, subpart B of this part supersedes or pre-empts inconsistent provisions of state law. It does not affect state law governing funds transfers that does not conflict with the provisions of subpart B of this part, such as Article 4A, as enacted in any state, as it applies to parties to funds transfers through Fedwire whose rights are not governed by subpart B of this part. Appendix A to Subpart B to Part 210, 12 C.F.R. § 210.25 (1995). This regulation specifies that inconsistent provisions of state law are pre-empted, while state law that does not conflict" } ]

[ { "docid": "2617346", "title": "", "text": "Furthermore, the Eleventh Circuit has recognized that “[cjomplete preemption occurs when federal law so occupies a given field that a state-law claim is transformed into a claim ‘arising under’ federal law.” Id. (citing Geddes v. Am. Airlines, Inc., 321 F.3d 1349, 1353 (11th Cir.2003)). “In other words, ‘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.’ ” Id. (quoting Franchise Tax Bd., 463 U.S. at 24, 103 S.Ct. 2841). B. Preemption of Mr. Bensman’s Fla. Stat. § 670,204 Claim By Federal Law Mr. Bensman asserts that his case should be remanded to the state court because his claim under Fla. Stat. § 670.204 is not completely preempted by federal law. Fla Stat. § 670.204 specifically provides, in relevant part: [i]f a receiving bank accepts a payment order issued in the name of its customer as sender which is not authorized and not effective as the order of the customer under section 670.202 or is not enforceable, in whole or in part, against the customer under 670.203 the bank shall refund any payment of the payment order received from the customer to the extent the bank is not entitled to enforce payment and shall pay interest on the refundable amount calculated from the date the bank received payment to the date of the refund.... In this case, Mr. Bensman alleges that the defendants are strictly liable under section 670.204 to return $4.5 million of funds that were wired without authorization during the period encompassing January through March of 2000. Defendants contend that removal jurisdiction is proper in this case because Mr. Bensman’s wire transfer claim is completely preempted by Subpart B of Federal Reserve Regulation J (12 C.F.R. §§ 210.25-210.32). These regulations govern wire transfers made via the Federal Reserve Wire Transfer Network (“Fed-wire”). See Grossman v. Nationsbank, N.A., 225 F.3d 1228, 1229 (11th Cir.2000) (explaining Fedwire system). In Gross-man, though the Eleventh Circuit did not specifically address the issue of complete preemption, the court recognized that in cases" }, { "docid": "2617347", "title": "", "text": "is not enforceable, in whole or in part, against the customer under 670.203 the bank shall refund any payment of the payment order received from the customer to the extent the bank is not entitled to enforce payment and shall pay interest on the refundable amount calculated from the date the bank received payment to the date of the refund.... In this case, Mr. Bensman alleges that the defendants are strictly liable under section 670.204 to return $4.5 million of funds that were wired without authorization during the period encompassing January through March of 2000. Defendants contend that removal jurisdiction is proper in this case because Mr. Bensman’s wire transfer claim is completely preempted by Subpart B of Federal Reserve Regulation J (12 C.F.R. §§ 210.25-210.32). These regulations govern wire transfers made via the Federal Reserve Wire Transfer Network (“Fed-wire”). See Grossman v. Nationsbank, N.A., 225 F.3d 1228, 1229 (11th Cir.2000) (explaining Fedwire system). In Gross-man, though the Eleventh Circuit did not specifically address the issue of complete preemption, the court recognized that in cases alleging “erroneous execution of a Fedwire funds transfer ... the provisions of Regulation J exclusively apply to the fund transfer.” Grossman, 225 F.3d at 1232. In Eisenberg v. Wachovia Bank, N.A., 301 F.3d 220 (4th Cir.2002), the Fourth Circuit specifically considered whether Regulation J completely preempts any state law claims arising from erroneous execution of a Fedwire funds transfer. The Fourth Circuit examined its holding in Donmar Enterprises, Inc. v. Southern National Bank of North Carolina, 64 F.3d 944 (4th Cir.1995), and stated that “[b]y its own terms, Regulation J ‘supersedes or pre-empts inconsistent provisions of state law.’ ” Eisenberg, 301 F.3d at 223 (citing Comm, on Sec. 210.25, 12 C.F.R. Part 210, Subpt. B, App. A. (2002)). The Eisenberg court then added that “[rjegulation J preempts any state law cause of action premised on conduct falling within the scope of Subpart B, whether the state law conflicts with or is duplicative of Subpart B.” Id. (citing Donmar 64 F.3d at 949-50). Finally, the court added that “[djetermining if a state law claim is preempted" }, { "docid": "17565", "title": "", "text": "state law claims because it held that those claims were preempted by Article 4A. “We may, however, affirm the grant of summary judgment on any ground fairly supported by the record.” Alliance Metals, Inc., of Atlanta v. Hinely Indus., Inc., 222 F.3d 895, 900 (11th Cir.2000). “[Pjarties whose conflict arises out of a funds transfer should look first and foremost to Article 4-A for guidance in bringing and resolving their claims.... ” Sheerbonnet, Ltd. v. Am. Express Bank, Ltd., 951 F.Supp. 403, 407 (S.D.N.Y.1995). Regions’s claims are based on Mornings-tar’s direction to Fleet Bank to transfer funds, illegally obtained from Regions, to Morningstar’s DDA at Provident. Because the wire transfers at issue here occurred via the Federal Reserve Wire Transfer Network, or “Fedwire,” which is owned and operated by the Federal Reserve Banks, Subpart B of Federal Reserve Regulation J (“Regulation J”), 12 C.F.R. §§ 210.25-210.32, applies. See id. § 210.25(a) (“This subpart provides rules to govern funds transfers through Fed-wire .... ”). Moreover, Regulation J “incorporates the provisions of Article 4A” of the U.C.C. as set forth in the Regulation, id. § 210.25(b)(1), and “governs the rights and obligations of,” inter alia, “parties to a funds transfer any part of which is carried out through Fedwire.... ” Id. § 210.25(b)(2)(v). See also Grossman v. Nationsbank, N.A., 225 F.3d 1228, 1232 (11th Cir.2000) (per curiam) (“Regulation J applies U.C.C. Article 4A to wire transfers conducted using Fedwire.”). Accordingly, the provisions of Article 4A, as incorporated to funds transfers using Fedwire via Regulation J, apply to the circumstances before us. Section 4A-103 of Article 4A defines various terms that are used within the Article such as payment order , beneficia-ry , beneficiary’s bank , receiving bank , and sender . Under Article 4A, Provident was the beneficiary’s bank and the receiving bank when it received the payment order from Fleet Bank, the sender, on behalf of Morningstar, the beneficiary. The rules that emerged during the drafting of the U.C.C. “are intended to be the exclusive means of determining the rights, duties and liabilities of the affected parties in any situation covered" }, { "docid": "22995224", "title": "", "text": "execution of a Fedwire funds transfer. Fed.R.Civ.P. 12(b)(6). In granting Nationsbank’s motion to dismiss, the district court noted that Grossman’s complaint had failed to specify pursuant to which statute or statutes he had filed his claims, and whether he was suing under Florida or federal law. After an analysis of the preemptive effect of federal regulations, the district court concluded that even if Grossman had intended to proceed under Florida law, the state law would be preempted by Subpart B of Federal Reserve Board Regulation J (“Regulation J”), which governs wire transfers effected through Fedwire. Therefore, the district court analyzed the claims in Grossman’s complaint exclusively using Subpart B of Regulation J, which applies U.C.C. Article 4A as the governing statute for Fedwire funds transfers. See 12 C.F.R. § 210.25(b)(1) (providing also that Regulation J controls in the event of inconsistencies with U.C.C. Article 4A). All of the parties now agree that Nationsbank’s duty was governed by Regulation J and U.C.C. Article 4A. The parties disagree regarding whether the district court properly held that Grossman’s complaint failed to allege a cause of action under Regulation J, 12 C.F.R. Part 210, Subpart B, App. B, § 4A-302(a)(l). III. STANDARD OF REVIEW We review de novo a district court’s order dismissing a complaint for failure to state a claim upon which relief could be granted. See Lopez v. First Union National Bank of Florida, 129 F.3d 1186, 1189 (11th Cir.1997) (citation omitted). When considering a motion to dismiss, all facts set forth in the plaintiffs complaint “are to be accepted as true and the court limits its consideration to the pleadings and exhibits attached thereto.” GSW, Inc. v. Long County, 999 F.2d 1508, 1510 (11th Cir.1993). A complaint may not be dismissed pursuant to Rule 12(b)(6) “unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Lopez, 129 F.3d at 1189 (internal quotations and citation omitted). IV. DISCUSSION The district court held, and the parties agree, that the provisions of Regulation J exclusively apply to the fund" }, { "docid": "10424171", "title": "", "text": "intended to be the exclusive means of determining the rights, duties and liabilities of the affected parties in any situation covered by particular provisions of the Article. Consequently, resort to principles of law or equity outside of Article 4A is not appropriate to create rights, duties and liabilities inconsistent with those stated in this Article. It is apparent from the U.C.C. commentary that a uniform and comprehensive national regulation of Fedwire transfers was the goal of the Board in adopting Article 4A. Furthermore, the Board has made clear that the type of state laws it considers not in conflict with Subpart B are state laws specifically governing funds transfers and parties not subject to Subpart B. Because we conclude in Part V that Southern National complied with and therefore has no liability under Subpart B, any liability founded on state law of negligence or wrongful payment would necessarily be in conflict with the federal regulations and is pre-empted. See Worm v. American Cyanamid Co., 5 F.3d 744, 748 (4th Cir.1993). Accordingly, we hold that any state causes of action based on negligence or unlawful payment on the facts of this case are preempted by Regulation J. V. Donmar argues that the notation STC DONMAR TRANS CODE 1021011 on its wire transfer dated February 26, 1991 and the notation SLC/DONMAR TRANS CODE 102-1011 on its wire transfer dated March 27,1991 indicate that STC and Donmar were joint beneficiaries of the transfer. Therefore, Donmar claims that Southern National violated section 4A — 404(a) by crediting the funds to Stephen’s only. Section 4A — 404(a) of Regulation J provides in relevant part: [I]f a beneficiary’s bank accepts a payment order, the bank is obliged to pay the amount of the order to the beneficiary of the order.... In support of its contention that an issue of fact exists as to whether Donmar was a beneficiary of the transfer and that Southern National violated this section, Donmar relies upon the affidavit of Levinson to the effect that it was his intention, by putting Donmar’s name on what he refers to as the “beneficiary line”" }, { "docid": "23233156", "title": "", "text": "75, 78-79 (1st Cir.1996). Under that formulation, the appropriate place to look is the correspondence and conversations between the Banks and the Receivers. Neither party addresses this point, however, and the record is relatively silent as to the character of the claims made on FTB by the Receivers, as opposed to their claims on Am-South, who received a draft complaint. Instead, FTB defends the district court’s finding of subject matter jurisdiction entirely on the basis of the so-called “complete preemption” of Regulation J. Complete preemption is a narrow exception to the well-pleaded complaint rule, whereby plaintiff is master of his complaint and can choose to assert only state law claims, in situations where Congress has indicated an intent to occupy the field so completely that any ostensibly state law claim is in fact a federal claim for purposes of arising-under jurisdiction. See Beneficial Nat’l Bank v. Anderson, 539 U.S. 1, 6-9, 123 S.Ct. 2058, 156 L.Ed.2d 1 (2003). The Supreme Court has only found three statutes that evince this sort of Congressional intent: § 301 of the LMRA, see Avco Corp. v. Aero Lodge No. 735, Int’l Ass’n of Machinists, 390 U.S. 557, 560, 88 S.Ct. 1235, 20 L.Ed.2d 126 (1968), § 502(a)(1)(B) of ERISA, see Metro. Life Ins. Co. v. Taylor, 481 U.S. 58, 63-66, 107 S.Ct. 1542, 95 L.Ed.2d 55 (1987), and § § 85 and 86 of the National Bank Act, see Beneficial Nat’l Bank, 539 U.S. at 10-11, 123 S.Ct. 2058. The district court, in finding that Regulation J might completely preempt the Receivers’ state law claims, characterized two Fourth Circuit opinions as deciding the question in favor of complete preemption, namely Eisenberg v. Wachovia Bank, N.A., 301 F.3d 220, 223-24 (4th Cir.2002), and Donmar Enterprises, Inc. v. Southern National Bank, 64 F.3d 944, 948-50 (4th Cir.1995). These decisions, however, clearly deal with ordinary preemption, rather than the complete preemption that would justify original arising-under jurisdiction. The district court erred in holding that Regulation J, a federal regulation promulgated by the Federal Reserve Board, a federal agency, could completely preempt the Receivers’ state law claims; only" }, { "docid": "22995225", "title": "", "text": "complaint failed to allege a cause of action under Regulation J, 12 C.F.R. Part 210, Subpart B, App. B, § 4A-302(a)(l). III. STANDARD OF REVIEW We review de novo a district court’s order dismissing a complaint for failure to state a claim upon which relief could be granted. See Lopez v. First Union National Bank of Florida, 129 F.3d 1186, 1189 (11th Cir.1997) (citation omitted). When considering a motion to dismiss, all facts set forth in the plaintiffs complaint “are to be accepted as true and the court limits its consideration to the pleadings and exhibits attached thereto.” GSW, Inc. v. Long County, 999 F.2d 1508, 1510 (11th Cir.1993). A complaint may not be dismissed pursuant to Rule 12(b)(6) “unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Lopez, 129 F.3d at 1189 (internal quotations and citation omitted). IV. DISCUSSION The district court held, and the parties agree, that the provisions of Regulation J exclusively apply to the fund transfer in this case because it was effected by the use of Fedwire, the Federal Reserve Banks’ wire-transfer system. See 12 C.F.R. § 210.25-32. Regulation J applies U.C.C. Article 4A to wire transfers conducted using Fedwire. See 12 C.F.R. § 210.25(b)(1); Appendix B to Subpart B to Part 210 ; see also Donmar Enters., Inc. v. Southern Nat’l Bank, 64 F.3d 944, 948 (4th Cir.1995). We address Nationsbank’s duty under Regulation J and U.C.C. Article 4A once Grossman requested the fund transfer, so that we can determine whether Gross-man’s complaint sufficiently stated a claim that Nationsbank breached its duty under those provisions. However, we will first provide Article 4A’s definition of the terms that are necessary to discuss the wire-transfer process in this case. The originator is “the sender of the first payment order in a funds transfer,” in this case, Grossman. 12 C.F.R. Part 210, Subpart B, App. B, § 4A-104(c). The payment order is the “instruction ... to pay ... a fixed or determinable amount of money to a beneficiary.” Id. § 4A-103(a)(l)." }, { "docid": "16516272", "title": "", "text": "and comprehensive national regulation of Fedwire transfers.” Donmar, 64 F.3d at 949. By its own terms, Regulation J “supersedes or pre-empts inconsistent provisions of state law.” Comm, on Sec. 210.25, 12 C.F.R. Part 210, Subpt. B, App. A (2002). We held in Donmar that Regulation J preempts any state law cause of action premised on conduct falling within the scope of Subpart B, whether the state law conflicts with or is duplicative of Sub-part B. 64 F.3d at 949-50. Determining if a state law claim is preempted by Regulation J turns on whether the challenged conduct in the state claim would be covered under Subpart B as well. Eisenberg’s negligence claims focus on several aspects of Wachovia’s conduct in establishing Reid’s account and crediting Eisenberg’s funds transfer to that account. One instance of alleged negligence involves Wachovia “accepting and crediting the Wire Transfer to Mr. Reid’s account when the wire instructions designated ‘Bear Stearns’ as the intended recipient.” Eisenberg addressed the Fedwire transfer to “Wachovia Bank,” “Beneficiary Account 1861296138,” “For Further Credit to BEAR STEARNS.” Subpart B applies here. When a transfer order identifies the beneficiary by an account number, the receiving bank may rely on the account number in crediting the account even though the transfer order identifies a person different from the holder of the account. See 12 C.F.R. § 210.27 (2002). Wachovia properly processed Eisenberg’s funds transfer order under the standards of Sub-part B. Wachovia is not liable under Subpart B for the manner in which it received and credited Eisenberg’s Fedwire funds transfer. Any state law claim that is premised on this same conduct would be either du-plicative of or contradictory to Regulation J and is thus preempted. Eisenberg’s negligence claims are preempted insofar as they challenge Wachovia’s Fedwire transfer processing. Eisenberg contends, however, that his negligence claims primarily challenge not the wire transfer processing but rather Wachovia’s conduct in allowing Reid to open and operate the bank account under the name “dba Bear Stearns.” The Fed-wire transfer, according to Eisenberg, is only incidental to his negligence claims. Eisenberg thus urges that his negligence claims are" }, { "docid": "17564", "title": "", "text": "II Regions asserts that the district court erred in holding that Regions’s state law claims were preempted by Article 4A. Regions argues that “nothing in Article 4A suggest that the drafters intended it to insulate a wrongdoer from liability in connection with funds transfers that were effectuated as intended.” Regions asserts that its claims were not preempted because Provident accepted the funds when it knew or should have known that the funds were fraudulently obtained. Regions further contends that “genuine issues of material fact exist with respect to the elements of Regions’s claims.” This court reviews a district court’s grant of summary judgment de novo. Scala v. City of Winter Park, 116 F.3d 1396, 1398 (11th Cir.1997). Summary judgment is proper if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. See Pritchard v. S. Co. Servs., 92 F.3d 1130, 1132 (11th Cir.1996). The district court concluded that it was unnecessary to determine whether a genuine issue of material fact existed regarding Regions’s state law claims because it held that those claims were preempted by Article 4A. “We may, however, affirm the grant of summary judgment on any ground fairly supported by the record.” Alliance Metals, Inc., of Atlanta v. Hinely Indus., Inc., 222 F.3d 895, 900 (11th Cir.2000). “[Pjarties whose conflict arises out of a funds transfer should look first and foremost to Article 4-A for guidance in bringing and resolving their claims.... ” Sheerbonnet, Ltd. v. Am. Express Bank, Ltd., 951 F.Supp. 403, 407 (S.D.N.Y.1995). Regions’s claims are based on Mornings-tar’s direction to Fleet Bank to transfer funds, illegally obtained from Regions, to Morningstar’s DDA at Provident. Because the wire transfers at issue here occurred via the Federal Reserve Wire Transfer Network, or “Fedwire,” which is owned and operated by the Federal Reserve Banks, Subpart B of Federal Reserve Regulation J (“Regulation J”), 12 C.F.R. §§ 210.25-210.32, applies. See id. § 210.25(a) (“This subpart provides rules to govern funds transfers through Fed-wire .... ”). Moreover, Regulation J “incorporates the provisions of Article 4A” of the U.C.C." }, { "docid": "16516269", "title": "", "text": "Carolina for deposit in an account bearing the name “Douglas Walter Reid dba Bear Stearns,” “For Further Credit to BEAR STEARNS.” The electronic transfer was made through the “Fedwire” wire service operated by the Federal Reserve Bank. Wachovia accepted the transfer and deposited the funds to the credit of the specified account, which had been opened by and was under the control of Reid. Reid withdrew almost all of Eisenberg’s funds and converted them to his own use. Wachovia’s customer agreements do not restrict the name under which a new customer may open a bank account. The Wachovia employee who opened Reid’s account did not verify that Reid was authorized to operate under the name Bear Stearns. Reid possessed no such authority and was not in any way affiliated with Bear Stearns. Eisenberg filed a complaint against Wachovia in federal court on the basis of diversity jurisdiction, see 28 U.S.C. § 1332, asserting two claims of negligence. The first claim alleged that Wa-chovia negligently allowed Reid to establish and operate a fraudulent bank account and negligently failed to train its employees to detect fraud. The second claim alleged that Wachovia was vicariously liable for its employee’s negligence in allowing Reid to open the bank account without proper verification. Both claims include the allegation that Wachovia breached a duty of care owed to people like Eisenberg, who transact with Wachovia customers, to detect and prevent the fraudulent use of its bank accounts. Wachovia moved to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). Wachovia argued that both negligence claims are preempted by Federal Reserve Board Regulation J (“Regulation J”), Subpart B, 12 C.F.R. §§ 210.25-210.32 (2002). Wachovia also argued, in the alternative, that the claims fail as a matter of law because Wachovia does not owe Eisenberg a duty of care. Agreeing that the claims are preempted, the district court granted Wachovia’s motion and dismissed the complaint with prejudice. The court did not address Wacho-via’s alternative argument for dismissal based on the absence of a duty of care. We review de novo the district court’s dismissal of the" }, { "docid": "22995226", "title": "", "text": "transfer in this case because it was effected by the use of Fedwire, the Federal Reserve Banks’ wire-transfer system. See 12 C.F.R. § 210.25-32. Regulation J applies U.C.C. Article 4A to wire transfers conducted using Fedwire. See 12 C.F.R. § 210.25(b)(1); Appendix B to Subpart B to Part 210 ; see also Donmar Enters., Inc. v. Southern Nat’l Bank, 64 F.3d 944, 948 (4th Cir.1995). We address Nationsbank’s duty under Regulation J and U.C.C. Article 4A once Grossman requested the fund transfer, so that we can determine whether Gross-man’s complaint sufficiently stated a claim that Nationsbank breached its duty under those provisions. However, we will first provide Article 4A’s definition of the terms that are necessary to discuss the wire-transfer process in this case. The originator is “the sender of the first payment order in a funds transfer,” in this case, Grossman. 12 C.F.R. Part 210, Subpart B, App. B, § 4A-104(c). The payment order is the “instruction ... to pay ... a fixed or determinable amount of money to a beneficiary.” Id. § 4A-103(a)(l). The originator’s bank is “the receiving bank to which the payment order of the originator is issued if the originator is not a bank.” Id. § 4A-104(d)(i). Because Grossman is not a bank, he took his payment order to the originator’s bank, in this case, Nations-bank. The beneficiary is “the person to be paid by the beneficiary’s bank.” Id. § 4A-103(a)(2). The beneficiary’s bank is “the bank identified in the payment order in which an account of the beneficiary is to be credited pursuant to the order or which otherwise is to make payment to the beneficiary if the order does not provide for payment to an account.” Id. § 4A-103(a)(3). In the simplest Fedwire transfer, the funds to be transferred are debited from the originator’s account, and travel from the originator’s bank to the beneficiary’s bank, where the beneficiary’s account is credited. However, an originator can in struct the originator bank that the funds are to travel through one or more intermediary banks, defined by Article 4A as a “receiving bank other than the" }, { "docid": "16516271", "title": "", "text": "complaint and can affirm on any basis fairly supported by the record. Korb v. Lehman, 919 F.2d 243, 246 (4th Cir.1990). We hold that Regula tion J does not preempt Eisenberg’s negligence claims but the claims still fail because Wachovia does not owe Eisenberg a duty of care under the facts of this case. II We discussed the preemptive effect of Regulation J in Donmar Enterprises, Inc. v. Southern National Bank of North Carolina, 64 F.3d 944 (4th Cir.1995). Sub-part B of Regulation J incorporates Article 4A of the Uniform Commercial Code to “provide [ ] rules to govern funds transfers through Fedwire.” 12 C.F.R. § 210.25(a) (2002); see id. at § 210.25(a)-(b). The rules adopted from Article 4A serve as the exclusive means for determining the rights, duties and liabilities of all parties involved in a Fedwire funds transfer. Comm, on Sec. 210.25(b), 12 C.F.R. Part 210, Subpt. B., App. A (2002). Affected parties include senders, intermediary banks, receiving banks and beneficiaries. Id. The Federal Reserve Board intended Subpart B to create a “uniform and comprehensive national regulation of Fedwire transfers.” Donmar, 64 F.3d at 949. By its own terms, Regulation J “supersedes or pre-empts inconsistent provisions of state law.” Comm, on Sec. 210.25, 12 C.F.R. Part 210, Subpt. B, App. A (2002). We held in Donmar that Regulation J preempts any state law cause of action premised on conduct falling within the scope of Subpart B, whether the state law conflicts with or is duplicative of Sub-part B. 64 F.3d at 949-50. Determining if a state law claim is preempted by Regulation J turns on whether the challenged conduct in the state claim would be covered under Subpart B as well. Eisenberg’s negligence claims focus on several aspects of Wachovia’s conduct in establishing Reid’s account and crediting Eisenberg’s funds transfer to that account. One instance of alleged negligence involves Wachovia “accepting and crediting the Wire Transfer to Mr. Reid’s account when the wire instructions designated ‘Bear Stearns’ as the intended recipient.” Eisenberg addressed the Fedwire transfer to “Wachovia Bank,” “Beneficiary Account 1861296138,” “For Further Credit to BEAR STEARNS.”" }, { "docid": "16516285", "title": "", "text": "of the Churches of Christ v. First Union National Bank, No. 97-1851, 1998 WL 416744 (4th Cir. July 22, 1998). First Union applied Donmar and held that state law claims based on conduct before the Fedwire transfer, such as opening an account, are preempted by Sub-part B: [Plaintiffs'] state law claims all arise out of their losses suffered when [the defendant bank] transferred the [funds].... Were it not for the alleged unauthorized transfer, [plaintiffs] could not be heard to complain as they would have suffered no damages .... [Plaintiffs] cannot compartmentalize and detach [their] state causes of action simply because certain of [defendant’s] activities occurred before the transfer when such causes of action would not have been available minus the resulting transfer. Id. at *3-*4 (paragraph break omitted). First Union is a nonbinding unpublished opinion. See 4th Cir. Local Rule 36(c). We moreover find First Union's reasoning unpersuasive. We think the better approach to a question of Regulation J preemption, as Donmar instructs, is to determine straightforwardly whether a state law cause of action is inconsistent with or duplicative of the rules established in Subpart B of Regulation J. . Contrary to Eisenberg's arguments, Sun 'n Sand, Inc. v. United California Bank, 21 Cal.3d 671, 148 Cal.Rptr. 329, 582 P.2d 920 (1978), is not analogous to this case. In that case a Sunn Sand employee fraudulently deposited company checks into a personal bank account at United California Bank (\"UCB”). Id. at 335. Sun’n Sand sued the bank for negligently allowing the employee, who was not the payee on the checks, to deposit the checks into her account. Although Sun 'n Sand was not a UCB customer, the California Supreme Court held that the bank had a limited duty of inquiry based on the highly suspicious acts of the employee. Id. at 344-45. The court stressed that the duty it was recognizing was \"narrowly circumscribed: it is activated only when checks, not insignificant in amount, are drawn payable to the order of a bank and are presented to the payee bank by a third party seeking to negotiate the checks for" }, { "docid": "6649778", "title": "", "text": "a standard of circumstantial reasonableness within a commercial setting (§ 4A-202(c)) which, by and large, determine who will bear the risk of loss for an erroneous payment under § 4A-205. To interject an alternative standard of due care with its attendant liability from an additional legal source (such as state common law negligence) would necessarily involve either a direct conflict between federal and state standards or useless repetition of identical rules of law arising from state sources. Directly conflicting provisions of state negligence law are expressly pre-empted by the plain language of Regulation J. Compatible aspects of negligence doctrine would be pre empted because they do not relate exclusively to governing funds transfers and are thus uselessly repetitive and implicitly pre-empted by Regulation J. In the case of a conflicting standard between North Carolina common law negligence and the built-in due care standards of Regulation J, the commentary on the regulations and its structure and purpose unambiguously counsel that the common law is preempted by the regulation within this very narrow context. In the case of a complete compatibility between Regulation J and North Carolina negligence doctrine, a cause of action brought under both standards would senselessly duplicate liability for the same wrongs under the same theories although the standards of liability issue from different sovereigns. The Court believes this would be an untenable inference to draw. To do so would require the Court to find that by promulgating Regulation J with congressionally delegated authority, the Federal Reserve Board, and through it, Congress, intended to multiply, duplicate, complicate and exacerbate bank liability from FedWire transfers. The Court thinks it more plausible to conclude that the Federal Reserve Board intended to streamline, unify, simplify and narrow liability exposure for such transactions. The Court will not impute illogie to the Federal Reserve Board by holding that in promulgating Regulation J, it intended to complicate matters for banks or their customers. 2) The Wrongful Payment Claim A similar analysis applies to Plaintiffs wrongful payment claim. Inasmuch as that claim is compatible with Regulation J, it is senselessly duplicative, and where it contradicts the" }, { "docid": "23233157", "title": "", "text": "of the LMRA, see Avco Corp. v. Aero Lodge No. 735, Int’l Ass’n of Machinists, 390 U.S. 557, 560, 88 S.Ct. 1235, 20 L.Ed.2d 126 (1968), § 502(a)(1)(B) of ERISA, see Metro. Life Ins. Co. v. Taylor, 481 U.S. 58, 63-66, 107 S.Ct. 1542, 95 L.Ed.2d 55 (1987), and § § 85 and 86 of the National Bank Act, see Beneficial Nat’l Bank, 539 U.S. at 10-11, 123 S.Ct. 2058. The district court, in finding that Regulation J might completely preempt the Receivers’ state law claims, characterized two Fourth Circuit opinions as deciding the question in favor of complete preemption, namely Eisenberg v. Wachovia Bank, N.A., 301 F.3d 220, 223-24 (4th Cir.2002), and Donmar Enterprises, Inc. v. Southern National Bank, 64 F.3d 944, 948-50 (4th Cir.1995). These decisions, however, clearly deal with ordinary preemption, rather than the complete preemption that would justify original arising-under jurisdiction. The district court erred in holding that Regulation J, a federal regulation promulgated by the Federal Reserve Board, a federal agency, could completely preempt the Receivers’ state law claims; only Congress can completely preempt a state cause of action. See Beneficial Nat’l Bank, 539 U.S. at 8, 9 & n. 5, 123 S.Ct. 2058 (describing doctrine of complete preemption as when a “federal statute completely pre-empts the state-law cause of action”; “Only if Congress intended [the statute at issue] to provide the exclusive cause of action ... would the statute ” completely preempt state law claims; “[T]he proper inquiry focuses on whether Congress intended the federal cause of action to be exclusive.” (emphases added)); Metro. Life Ins., 481 U.S. at 66, 107 S.Ct. 1542 (the touchstone of complete preemption is “the intent of Congress ” (emphasis added)); Peters v. Lincoln Elec. Co., 285 F.3d 456, 468 n. 11 (6th Cir.2002) (“Without evidence of Congress’s intent to transfer jurisdiction to federal courts, there is no basis for invoking federal judicial power.” (emphasis added)); Hyzer v. Cigna Prop. Cas. Ins. Co., 884 F.Supp. 1146, 1152 (E.D.Mich.1995) (no support for contention that agency regulations could completely preempt area). This conclusion fits in more generally with the balance struck" }, { "docid": "10424169", "title": "", "text": "4A-101, Prefatory Note. IV. Donmar contends that Regulation J does not pre-empt its state law negligence and wrongful payment claims and that the district court erred in dismissing these causes of action. In considering the preemptive effect of federal law, including federal regulations, we first look to the regulation to determine the expressed pre-emptive intent of the Federal Reserve Board. Regulation J itself contains a preemption standard: [Regulations of the Board may pre-empt inconsistent provisions of state law. Accordingly, subpart B of this part supersedes or pre-empts inconsistent provisions of state law. It does not affect state law governing funds transfers that does not conflict with the provisions of subpart B of this part, such as Article 4A, as enacted in any state, as it applies to parties to funds transfers through Fedwire whose rights are not governed by subpart B of this part. Appendix A to Subpart B to Part 210, 12 C.F.R. § 210.25 (1995). This regulation specifies that inconsistent provisions of state law are pre-empted, while state law that does not conflict is not pre-empted, and lists as an example of a non-conflicting state law, a state law governing funds transfers that applies to parties to which the federal Article 4A does not apply. But Article 4A applies in this ease. The Official Commentary to U.C.C. section 4A-102 provides insight as to the objectives of the Federal Reserve Board in adopting Article 4A: Before this Article was drafted there was no comprehensive body of law — statutory or judicial — that defined the judicial nature of a funds transfer or the rights and obligations flowing from payment orders. Judicial authority with respect to funds transfers is sparse, undeveloped and not uniform. Judges have had to resolve disputes by referring to general principles of common law or equity ... [b]ut attempts to define rights and obligations in funds transfers by general principles or by analogy to rights and obligations in negotiable instrument law or the law of check collection have not been satisfactory.... The rules that emerged represent a careful and delicate balancing of those interests and are" }, { "docid": "16516270", "title": "", "text": "negligently failed to train its employees to detect fraud. The second claim alleged that Wachovia was vicariously liable for its employee’s negligence in allowing Reid to open the bank account without proper verification. Both claims include the allegation that Wachovia breached a duty of care owed to people like Eisenberg, who transact with Wachovia customers, to detect and prevent the fraudulent use of its bank accounts. Wachovia moved to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). Wachovia argued that both negligence claims are preempted by Federal Reserve Board Regulation J (“Regulation J”), Subpart B, 12 C.F.R. §§ 210.25-210.32 (2002). Wachovia also argued, in the alternative, that the claims fail as a matter of law because Wachovia does not owe Eisenberg a duty of care. Agreeing that the claims are preempted, the district court granted Wachovia’s motion and dismissed the complaint with prejudice. The court did not address Wacho-via’s alternative argument for dismissal based on the absence of a duty of care. We review de novo the district court’s dismissal of the complaint and can affirm on any basis fairly supported by the record. Korb v. Lehman, 919 F.2d 243, 246 (4th Cir.1990). We hold that Regula tion J does not preempt Eisenberg’s negligence claims but the claims still fail because Wachovia does not owe Eisenberg a duty of care under the facts of this case. II We discussed the preemptive effect of Regulation J in Donmar Enterprises, Inc. v. Southern National Bank of North Carolina, 64 F.3d 944 (4th Cir.1995). Sub-part B of Regulation J incorporates Article 4A of the Uniform Commercial Code to “provide [ ] rules to govern funds transfers through Fedwire.” 12 C.F.R. § 210.25(a) (2002); see id. at § 210.25(a)-(b). The rules adopted from Article 4A serve as the exclusive means for determining the rights, duties and liabilities of all parties involved in a Fedwire funds transfer. Comm, on Sec. 210.25(b), 12 C.F.R. Part 210, Subpt. B., App. A (2002). Affected parties include senders, intermediary banks, receiving banks and beneficiaries. Id. The Federal Reserve Board intended Subpart B to create a “uniform" }, { "docid": "2617349", "title": "", "text": "by Regulation J turns on whether the challenged conduct in the state, claim would be covered under Subpart B as well.” Id. In Eisenberg, the court held that: Wachovia properly processed Eisenberg’s funds transfer order under the standards of Subpart B. Wachovia is not liable under Subpart B for the manner in which it received and credited Eisenberg’s Fedwire funds transfer. Any state law claim that is premised on this same conduct would be either duplicative of or contradictory to Regulation J and is thus preempted. Id. The Eisenberg court added that the only claims that are not preempted by Regulation J are claims where the Fedwire transfer “is only incidental” to the claims in the complaint. Id. In Mr. Bensman’s case, however, his complaint for damages under Fla. Stat. § 670.204 specifically alleges that defendants are liable because they “wire transferred [funds] from Plaintiff Bensman’s custodial account to Rx Remedy without authorization.” Pi’s. Compl. at ¶¶ 129-31. In this case, Mr. Bensman is specifically alleging that Citibank is liable “for the manner in which it [handled Mr. Bensman’s] Fedwire funds transfer.” Thus, under the logic outlined in Eisenberg and Donmar, the court finds that' Mr. Bensman’s state law claim under Fla. Stat. § 670.204 is either duplicative of or contradictory to Regulation J and is thus preempted. Accordingly, the court finds that removal jurisdiction is proper in this case because Mr. Bensman’s claim under Fla. Stat. § 670.204 is completely preempted by Regulation J. C. Supplemental Jurisdiction Mr. Bensman alternatively argues that, regardless of this court’s decision on Count X, his remaining claims should be remanded to state court. In In re City of Mobile, 75 F.3d 605, 607 (11th Cir.1996) the Eleventh Circuit recognized that: district courts may decline to exercise supplemental jurisdiction over a claim under subsection (a) if: (1) the claim raises a novel or complex issue of state law; (2) the claim substantially predominates over the claim or , claims over which the district court has original jurisdiction; (3) the district court has dismissed all claims over which it has original jurisdiction; or (4) in" }, { "docid": "16516284", "title": "", "text": "negligence claim, holding that the bank did not owe plaintiffs a duty of care to monitor the disbursement of the loan proceeds. Id. at 636. The court reasoned that, absent a contractual obligation arising from the letter of credit itself, there was no relationship between the bank and the plaintiffs to give rise to a duty of care. Id. at 637. Carlson suggests that the North Carolina Court of Appeals would not find a duty of care in this case, where there was no direct relationship at all between Eisenberg and Wa-chovia, much less a contractual obligation. We hold that Wachovia did not owe Ei-senberg a duty of care under the facts of this case. Eisenberg consequently cannot maintain a claim of negligence against Wa-chovia. IV The district court properly dismissed Ei-senberg’s complaint with prejudice. Ei-senberg’s negligence claims are not preempted by Subpart B of Regulation J. The negligence claims are instead dismissed because Wachovia does not owe Eisenberg a duty of care. AFFIRMED. . Wachovia argues that this case is indistinguishable from National Council of the Churches of Christ v. First Union National Bank, No. 97-1851, 1998 WL 416744 (4th Cir. July 22, 1998). First Union applied Donmar and held that state law claims based on conduct before the Fedwire transfer, such as opening an account, are preempted by Sub-part B: [Plaintiffs'] state law claims all arise out of their losses suffered when [the defendant bank] transferred the [funds].... Were it not for the alleged unauthorized transfer, [plaintiffs] could not be heard to complain as they would have suffered no damages .... [Plaintiffs] cannot compartmentalize and detach [their] state causes of action simply because certain of [defendant’s] activities occurred before the transfer when such causes of action would not have been available minus the resulting transfer. Id. at *3-*4 (paragraph break omitted). First Union is a nonbinding unpublished opinion. See 4th Cir. Local Rule 36(c). We moreover find First Union's reasoning unpersuasive. We think the better approach to a question of Regulation J preemption, as Donmar instructs, is to determine straightforwardly whether a state law cause of action is" }, { "docid": "2617348", "title": "", "text": "alleging “erroneous execution of a Fedwire funds transfer ... the provisions of Regulation J exclusively apply to the fund transfer.” Grossman, 225 F.3d at 1232. In Eisenberg v. Wachovia Bank, N.A., 301 F.3d 220 (4th Cir.2002), the Fourth Circuit specifically considered whether Regulation J completely preempts any state law claims arising from erroneous execution of a Fedwire funds transfer. The Fourth Circuit examined its holding in Donmar Enterprises, Inc. v. Southern National Bank of North Carolina, 64 F.3d 944 (4th Cir.1995), and stated that “[b]y its own terms, Regulation J ‘supersedes or pre-empts inconsistent provisions of state law.’ ” Eisenberg, 301 F.3d at 223 (citing Comm, on Sec. 210.25, 12 C.F.R. Part 210, Subpt. B, App. A. (2002)). The Eisenberg court then added that “[rjegulation J preempts any state law cause of action premised on conduct falling within the scope of Subpart B, whether the state law conflicts with or is duplicative of Subpart B.” Id. (citing Donmar 64 F.3d at 949-50). Finally, the court added that “[djetermining if a state law claim is preempted by Regulation J turns on whether the challenged conduct in the state, claim would be covered under Subpart B as well.” Id. In Eisenberg, the court held that: Wachovia properly processed Eisenberg’s funds transfer order under the standards of Subpart B. Wachovia is not liable under Subpart B for the manner in which it received and credited Eisenberg’s Fedwire funds transfer. Any state law claim that is premised on this same conduct would be either duplicative of or contradictory to Regulation J and is thus preempted. Id. The Eisenberg court added that the only claims that are not preempted by Regulation J are claims where the Fedwire transfer “is only incidental” to the claims in the complaint. Id. In Mr. Bensman’s case, however, his complaint for damages under Fla. Stat. § 670.204 specifically alleges that defendants are liable because they “wire transferred [funds] from Plaintiff Bensman’s custodial account to Rx Remedy without authorization.” Pi’s. Compl. at ¶¶ 129-31. In this case, Mr. Bensman is specifically alleging that Citibank is liable “for the manner in which" } ]

[ { "docid": "1276535", "title": "", "text": "done a purchaser of EFCA securities and the assistance a defendant may have given the fraud at a date subsequent to that purchase. Thus, no defendant will be held liable for the conduct of any primary defendant that occurred prior to the time at which it is proved the secondary defendant became an aider and abettor as that term is defined above. There are other limitations on the plaintiffs’ aider and abettor claims. Most of the statutes on which plaintiffs base these claims specifically limit the categories of persons that can be held liable under those statutes. § 11 of the 1933 Act, for example, imposes potential liability only on signators to the registration statement, directors or partners of the issuer or those so named, accountants or other professionals that certify or prepare work appearing in the statement, and underwriters. § 12 of the 1933 Act limits liability to those who are sellers of the security purchased by the plaintiff, although the term “seller” as used in § 12(2) may include others than the person who actually passes title. In re Caesars Palace Securities Litigation, 360 F.Supp. 366 (S.D.N.Y.1973). The only statutes relied on by plaintiffs that do not include similar limitations are § 17 of the 1933 Act and §§ 10(b) and 14 of the 1934 Act. This court is of the opinion that where a statute specifically limits those who may be held liable for the conduct described by the statute, the courts cannot extend liability, under a theory of aiding and abetting, to those who do not fall within the categories of potential defendants described by the statute. To impose such liability would circumvent thé express intent of Congress in enacting these statutes that proscribe narrowly defined conduct and allow relief from precisely defined parties. Failure to Plead Fraud with Particularity Defendants’ motions also contend the Complaint does not plead fraud with the particularity required by Fed.R.Civ.Pro. 9(b), or is so vague as to require amendment in order to allow defendants a reasonable opportunity to frame a responsive pleading. For the most part, these objections are not" } ]

[ { "docid": "689222", "title": "", "text": "firm assert that as a matter of . law, recovery cannot be had under these provisions on an aiding and' abetting theory. We agree. In support of their claims, plaintiffs cite In re Caesars Palace Securities Litigation, 360 F.Supp. 366, 384 (S.D.N.Y.1973), where the court held that aiding and abetting claims under Sections 11 and 12(2) are actionable. That holding was based on the broad, remedial nature of the 1933 Act, the perceived need for a liberal construction of that Act, and the notion that participants who substantially assist wrongdoing should not escape liability. Id. at 382-83. In recent cases, the Supreme Court has made it clear that a determination of the standard of liability under the various provisions of the federal securities laws must begin with and rest primarily on the language of the statutes. See Ernst & Ernst v. Hochfelder, 425 U.S. 185, 200-01, 96 S.Ct. 1375, 1384, 47 L.Ed.2d 668 (1976); see also Transamerica Mortgage Advisors, Inc. (TAMA) v. Lewis, 444 U.S. 11, 100 S.Ct. 242, 245, 62 L.Ed.2d 146 (1979); Touche Ross & Co. v. Redington, 442 U.S. 560, 99 S.Ct. 2479, 2485, 61 L.Ed.2d 82 (1979). In line with this reasoning, we believe the greater and better weight of authority on the issue of aiding and abetting liability under Sections 11 and 12(2) is that expressed in In Re Equity Funding Corporation of America Securities Litigation, 416 F.Supp. 161, 181 (C.D.Cal.1976): [W]here a statute specifically limits those who may be held liable for the conduct described by the statute, the courts cannot extend liability, under a theory of aiding and abetting, to those who do not fall within the categories of potential defendants described by the statute. To impose such liability would circumvent the express intent of Congress in enacting these statutes that proscribe narrowly defined conduct and allow relief from precisely defined parties. See also McFarland v. Memorex Corp., 493 F.Supp. 631, 642 (N.D.Cal.1980); In re Gap Stores Securities Litigation, 457 F.Supp. 1135, 1143 (N.D.Cal.1978); 3 A. Blomberg, Securities Fraud & Commodities Fraud § 8.5(320) (1981). Section 11 and 12(2) are express liability provisions," }, { "docid": "22429852", "title": "", "text": "Virginia Bankshares, supra, at 1102. More specifically, this Court has rejected the creation of implied causes of action for ancillary claims like retaliation. In Central Bank, we concluded that § 10(b) of the Securities Exchange Act of 1934, 48 Stat. 891, as amended, 15 U. S. C. §78j, provided no civil action against those who aid and abet individuals engaging in manipulative or deceptive practices, though the respondents urged that such a claim was necessary to fulfill the statute’s protection against deceit in the securities marketplace. 511 U. S., at 177, 188. We declined to do so even though this Court had implied a cause of action for § 10(b). See Borak, supra. In our view, while the statute’s language potentially reached the conduct of some aiders and abettors, the full scope of liability for aiding and abetting would have extended liability beyond the conduct prohibited by the statute. Central Bank, 511 U. S., at 176. We surveyed other statutes and found that “Congress knew how to impose aiding and abetting liability when it chose to do so.” Id., at 176-177. Our view that the statute did not reach aiding and abetting was also confirmed by the fact that an “element critical for recovery” in actions against those engaging in fraudulent and manipulative acts was not required in proving that someone had aided and abetted such persons. Id., at 180. The same reasons militate equally against extending the implied cause of action under Title IX to retaliation claims. As in Central Bank, imposing retaliation liability expands the statute beyond discrimination “on the basis of sex” to instances in which no discrimination on the basis of sex has occurred. Again, §901 protects individuals only from discrimination on the basis of their own sex. Supra, at 185-187. Thus, extending the implied cause of action under Title IX to claims of retaliation expands the class of people the statute protects beyond the specified beneficiaries. As with the absence of aiding and abetting from the statute at issue in Central Bank, I find it instructive that § 901 does not expressly prohibit retaliation, while" }, { "docid": "5094006", "title": "", "text": "(N.D.Cal.1978) (section 11 liability “is limited to persons who are signators of the registration statement, directors or partners of the issuer, experts named as preparing or certifying a portion of the registration statement, or underwriters with respect to the issue”). Plaintiff asserts that he can state a section 11 claim against the nonsigning officers under a section 15 “controlling person” theory. As will be discussed below, plaintiff has not adequately alleged any Section 15 claim. But even if he had, Section 15 does not make control persons directly liable under section 11. Relying on In re Caesars Palace Securities Litigation, 360 F.Supp. 366, 384 (S.D.N.Y. 1973), plaintiff also suggests that the nonsigning officers can be held liable under section 11 for aiding and abetting other wrongdoers. In that case, the court did permit co-conspirator and aider and abettor liability under section 11. This Court declines, however, to follow what it regards as a minority position. Judge Lucas’ reasoning in In re Equity Funding Corp. of America Securities Litigation, 416 F.Supp. 161 (C.D. Cal. 1976), is more persuasive: There are other limitations on the plaintiffs’ aider and abettor claims. Most of the statutes on which plaintiffs base these claims specifically limit the categories of persons that can be held liable under those statutes . . . This court is of the opinion that where a statute specifically limits those who may be held liable for the conduct described by the statute, the courts cannot extend liability, under a theory of aiding and abetting, to those who do not fall within the categories of potential defendants described by the statute. To impose such liability would circumvent the express intent of Congress in enacting these statutes that proscribe narrowly defined conduct and allow relief from precisely defined parties. Id. at 181 (emphasis added). To sanction a theory of aiding and abetting would be to essentially gut the statutory definitions of meaning. Such a theory is not novel. If Congress had intended that this theory apply to section 11, it would have so stated either in the statute or in the legislative history. Because" }, { "docid": "18421345", "title": "", "text": "Nuveen & Co., Inc., that defendant was also the exclusive underwriter of the securities and had bought the notes from Winter & Hirsch, Inc. and resold them to plaintiff. Thus, plaintiff’s statement that “the fact remains the broker was found liable in Sanders under Section 12(2)” (Plaintiff’s Surreply Brief at 8) is pure sophistry in light of the obvious fact that Nuveen was not held liable as a broker, but as a seller to whom “strict privity” applied. In any event, there is no question that under any stretch of the term, “strict privity” does not apply to Laventhol, whose conduct did not occur until well after the plaintiff bought his Xonics stock in February, 1983. Indeed, the Court agrees with Laventhol that even under the “substantial factor” and “transaction causation” tests enunciated by other circuits which have not required “strict privity” under Section 12(2), Laventhol did not have both prior and significant involvement in the events leading to and causing the sales transaction in February, 1983, under the few fact-specific allegations of the First Amended Complaint. Thus, Laventhol’s motion to dismiss the Section 12(2) claims against it would be granted regardless of the resolution of the “strict privity” issue. For the same reasons, this Court holds that plaintiff’s claim that the Cantor, Fitzgerald and Laventhol defendants are liable under Section 12(2) as aiders and abettors must also be dismissed. If these defendants are not liable as principals under Section 12(2) because they do not fall within the scope of potential defendants described by that statute, liability should not extend to include them under the theory of aiding and abetting. Hagert v. Glickman, Lurie, Eiger & Co., 520 F.Supp. 1028, 1034 (D.Minn.1981); In Re Equity Funding Corporation of America Securities Litigation, 416 F.Supp. 161, 181 (C.D. Cal.1976). In addition, in a well-reasoned recent case decided in this Circuit, Judge Evans dismissed aiding and abetting claims under Section 12(2) stating, “There would seem to be little point in pursuing both a 10(b) claim and a section 12(2) claim as an aider and abettor against the same defendants.” Hackett v. Village Court" }, { "docid": "18910877", "title": "", "text": "the conduct described by the statute, the courts cannot extend liability, under a theory of aiding and abetting, to those who do not fall within the categories of potential defendants described by the statute.”) See also Hagert v. Glickman, Lurie, Eiger & Co., 520 F.Supp. at 1034. This court, following what appears to be the law in the Eighth Circuit and after observing development of securities regula tion narrowing the scope of liability in several areas, is constrained to dismiss the aiding and abetting theory of liability under Section 11. Such liability, however, may remain viable in other sections of the securities laws which do not expressly limit the class of potential defendants. SECTION 10(b) OF THE 1934 ACT Count III of the plaintiffs’ complaint asserts both primary and secondary liability under Section 10(b) of the 1934 Exchange Act and Rule 10b-5 promulgated thereunder. That section 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 continuance 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. 15 U.S.C. § 78j(b). Rule 10b-5 provides: It shall be unlawful or 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, (1) to employ any device, scheme, or artifice to defraud, (2) to make any untrue statement of a material fact or to omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they are made, not misleading, or (3) to engage in any act, practice, or course of business which operates or would operate as a" }, { "docid": "18812998", "title": "", "text": "firm’s knowledge of and participation in the alleged misrepresentation. The court’s position on secondary liability of accountants was placed in some question by a footnote at 1311 n. 12. The footnote stated that although the court had suggested potential aiding and abetting liability under the securities laws, it had not ruled directly on the issue. Included was a brief history of the aiding and abetting theory of liability and the suggestion that the Supreme Court would not recognize a secondary liability theory if called upon to rule on the issue today. Nonetheless, actions speak louder than words. Thus far, the Ninth Circuit has not chosen to depart from its “suggestions” of aiding and abetting liability for accountants under § 10(b) claims. For the reasons outlined in the discussion of Rule 9(b), the aiding and abetting claim satisfies the pleading requirements of the rule. C. Liability Under § 11 Coopers & Lybrand and Duff & Phelps, Inc. challenge allegations of liability against them under § 11 on grounds that: 1) there is no aiding and abetting liability under the section, and 2) the claim is time-barred. Neither argument has merit. Section 11 of the Securities Act of 1933, 15 U.S.C. § 77k, sets forth the classes of persons who may be sued in civil actions for false registration statements. Among those included are: (a)(4) every accountant, engineer, or appraiser, or any person whose profession gives authority to a statement made by him, who has with his consent been named as having prepared or certified any part of the registration statement, or as having prepared or certified any report or valuation which is used in connection with the registration statement, with respect to the statement in such registration statement, report, or valuation, which purports to have been prepared or certified by him.... Defendants cite Hagert v. Glickman, Lurie, Eiger & Co., 520 F.Supp. 1028 (D.Minn.1981), where the Minnesota court, citing In Re Equity Funding Corporation of America Securities Litigation, 416 F.Supp. 161, 181 (C.D.Cal.1976), stated at 1034: [W]here a statute specifically limits those who may be held liable for the conduct described" }, { "docid": "1045233", "title": "", "text": "notes that Central Bank can be distinguished since the cause of action considered in that ease was an implied right of action. See Boim v. Quranic Literacy Institute, 291 F.3d 1000, 1019 (7th Cir.2002) (commenting that “the courts were already inferring an intent by Congress to create a private civil cause of action with section 10(b), and they would have been stacking another inference on top of that one in extending liability to aiders and abettors”). Here, the TVPA provides an express right of action. Central Bank stands for the proposition that “when Congress enacts a statute under which a person may sue and recover damages from a private defendant for the defendant’s violation of some statutory norm, there is no general presumption that the plaintiff may also sue for aiders and abettors.” 511 U.S. at 182, 114 S.Ct. 1439 (emphasis added). However, this proposition is different than a rule which precludes aiding and abetting liability unless expressly provided for via the language of the statute. In Central Bank, the question before the Court was whether section 10(b) of the Securities Exchange Act of 1934 extends civil liability to those who “aid and abet” the violation. Id. at 167, 114 S.Ct. 1439. The Court’s analysis began with the text of the statute. Id. at 173, 114 S.Ct. 1439. After recognizing that the language of the statute did not include the words “aid” or “abet”, the Court held that the words “directly or indirectly” in section 10(b) circumscribe the liability of the statute to preclude aiding or abetting liability. Id. at 175-76, 114 S.Ct. 1439. In other words, since the statute described liability as extending to those who “directly or indirectly” committed securities fraud, aiding and abetting (as liability that does not require even indirect action) was not prohibited by the statute. Like section 10(b), the TVPA does not contain the words “aid” or “abet”. However, unlike section 10(b), the TVPA states that an individual shall be held liable if that person “subjects” an individual to torture or extrajudicial killing. See § 1350 Note § 2(a). To “subject” is defined as" }, { "docid": "7436963", "title": "", "text": "have known that NatWest Finance was engaging in fraudulent conduct and failed to exercise its control to prevent that fraud. See Harris, 186 F.3d at 247 (“The district court should grant such a motion only if, after viewing plaintiffs allegations in this favorable light, it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.”). 2. Section 10(b) claim a. Agency In Central Bank, the Supreme Court held that private plaintiffs cannot bring claims under § 10(b) for aiding and abetting securities fraud. See Central Bank, 511 U.S. at 191, 114 S.Ct. 1439. Focusing on the text of § 10(b), the Court stated: As in earlier cases considering conduct prohibited by § 10(b), we again conclude that the statute prohibits only the making of a material misstatement (or omission) or the commission of a manipulative act. The proscription does not include giving aid to a person who commits a manipulative or deceptive act. We cannot amend the statute to create liability for acts that are not themselves manipulative or deceptive within the meaning of the statute. Id. at 177-78, 114 S.Ct. 1439 (citations omitted). The Court then explained that allowing aiding and abetting liability under § 10(b) would enable plaintiffs to state a claim without meeting all the required elements: Our reasoning is confirmed by the fact that respondents’ argument would impose 10b-5 aiding and abetting liability when at least one element critical for recovery under 10b-5 is absent: reliance. A plaintiff must show reliance on the defendant’s misstatement or omission to recover under 10b-5. Were we to allow the aiding and abetting action proposed in this case, the defendant could be liable without any showing that the plaintiff relied upon the aider and abettor’s statements or actions. Allowing plaintiffs to circumvent the reliance requirement would disregard the careful limits on 10b-5 recovery mandated by our earlier cases. Id. at 180, 114 S.Ct. 1439 (citations omitted). Finally, the Court noted that plaintiffs still could assert claims for secondary liability under § 20(a). See id. at 184, 114" }, { "docid": "18813000", "title": "", "text": "in the statute, the courts cannot extend liability, under a theory of aiding and abetting, to those who do not fall within the categories of potential defendants described by the statute. To impose such liability would circumvent the express intent of Congress in enacting these statutes that proscribe narrowly defined conduct and allow relief from precisely defined parties. [Italics added.] Purporting to follow Equity Funding, the court dismissed a § 11 claim against defendant accountants and a law firm which was based on the theory of aiding and abetting. By this ruling, the Minnesota court misinterpreted dicta from Equity Funding, supra. In Equity Funding, the court recognized aiding and abetting liability under several sections of federal securities laws, with certain limitations. One such limitation arose where the statute specifically limited the category of defendants. § 11 of the 1933 Act, for example, imposes potential liability only on signators to the registration statement, directors or partners of the issuer or those so named, accountants or other professionals that certify or prepare work appearing in the statement, and underwriters. Equity Funding, supra, at 181. In other words, a theory of secondary liability cannot be employed to bring categories of persons not listed in § 11 within its categories of potential defendants. In the present case, both Duff & Phelps, Inc., and Coopers & Lybrand, are within the classes of persons or entities listed in § 11. Accordingly, the limitation noted in Equity Funding, supra, is inapplicable. With respect to the claim that the § 11 claim is time-barred, plaintiff has properly pleaded fraudulent concealment under Rule 9(b), as discussed above. D. Liability Under § 17 Defendant Coopers & Lybrand states that there is no implied private right of action under § 17, and, even if there were, the implied remedy must be in fraud, not negligence. In Stephenson v. Calpine Conifers II, Ltd., 652 F.2d 808 (9th Cir.1981), the Ninth Circuit adopted the reasoning of the Second Circuit and found an implied right of action under § 17. Defendant points out that the more recent Ninth Circuit decision, Kramas v. Security Gas" }, { "docid": "6506189", "title": "", "text": "at 173, 114 S.Ct. 1439. Because adherence to the statutory language is the starting point of any case involving construction of a statute, the Supreme Court refused to allow 10b-5 liability for conduct not prohibited by the text of section 10(b). 511 U.S. at 174, 114 S.Ct. 1439. In view of the fact that section 10(b) made no mention of aiding and abetting liability, the Court found that there could be no private right of action for aiding and abetting a 10(b) violation. The Court rejected a claim that language in the statute imposing liability on any person who “directly or indirectly” employs a deceptive practice meant that Congress intended to cover aiding and abetting: The problem, of course, is that aiding and abetting liability extends beyond persons who engage, even indirectly, in a proscribed activity; aiding and abetting liability reaches persons who do not engage in the proscribed activities at all, but who give a degree of aid to those who do. 511 U.S. at 175-76, 114 S.Ct. 1439. Citing section 876(b) of the Restatement (Second) of Torts, the Court acknowledged that aiding and abetting a wrongdoer ought to be actionable in certain other circumstances, but the issue here was whether aiding and abetting was covered by the statute. The Court stated that it was inconsistent with settled methodology in section 10(b) cases to extend liability beyond the scope of conduct prohibited by the statutory text. The Court found that the statute prohibited only the making of a material misstatement (or omission) or the commission of a manipulative act. Because the statute did not proscribe giving aid to a person who commits a manipulation or deceptive act, the Court declined to extend liability to aiders and abettors. 511 U.S. at 177-78, 114 S.Ct. 1439. The Court further noted that it could reach the same result by examining the express causes of action identified in the 1933 and 1934 Acts as models for implied rights of action under those same sections. None of the express causes of actions in the 1934 Act imposed liability on aiders and abettors, and the" }, { "docid": "18421346", "title": "", "text": "Amended Complaint. Thus, Laventhol’s motion to dismiss the Section 12(2) claims against it would be granted regardless of the resolution of the “strict privity” issue. For the same reasons, this Court holds that plaintiff’s claim that the Cantor, Fitzgerald and Laventhol defendants are liable under Section 12(2) as aiders and abettors must also be dismissed. If these defendants are not liable as principals under Section 12(2) because they do not fall within the scope of potential defendants described by that statute, liability should not extend to include them under the theory of aiding and abetting. Hagert v. Glickman, Lurie, Eiger & Co., 520 F.Supp. 1028, 1034 (D.Minn.1981); In Re Equity Funding Corporation of America Securities Litigation, 416 F.Supp. 161, 181 (C.D. Cal.1976). In addition, in a well-reasoned recent case decided in this Circuit, Judge Evans dismissed aiding and abetting claims under Section 12(2) stating, “There would seem to be little point in pursuing both a 10(b) claim and a section 12(2) claim as an aider and abettor against the same defendants.” Hackett v. Village Court Associates, 602 F.Supp. 856, 859 (E.D.Wisc.1985). Here too, plaintiff has raised a Section 10(b) claim against the Laventhol and Cantor, Fitzgerald defendants which may be viable if the next complaint pleads fraud with sufficient particularity. Thus, all the Section 12(2) claims against defendants Laventhol and Cantor, Fitzgerald are dismissed. II. RICO Claims This Court already has granted the defendants’ motion to dismiss the RICO claims under Sections 1962(a), (c), and (d) pursuant to Rule 9(b) because it agrees that the plaintiff has failed to allege with sufficient particularity the requisites of the predicate acts constituting the “pattern of racketeering activity,” in this case mail fraud, wire fraud, and securities fraud, and to properly specify which among the 14 RICO defendants are charged with what RICO violations. RICO violations based on fraud must be pleaded with the same particularity that is required in pleading fraud. Taylor v. Bear Stearns & Co., 572 F.Supp. 667, 682 (N.D.Ga.1983). Plaintiff has been granted an opportunity to file a Second Amended Complaint, however, and for that reason this Opinion will" }, { "docid": "6486262", "title": "", "text": "11 unless the misleading information can be expressly attributed to them. See 15 U.S.C. § 77k(a)(4); McFarland v. Memorex Corp., 493 F.Supp. 631, 643 (N.D.Cal. 1980). The court finds that the instant allegations are insufficient as to DH & S. In order to state a claim against DH & S, plaintiffs must identify the misleading statements in the portion of the prospectus which DH & S allegedly prepared or certified. The court also finds that there is no “secondary liability” under Section 11. The court acknowledges that some courts have allowed claims for “aiding and abetting” a Section 11 claim. See, e.g. Zatkin v. Primuth, 551 F.Supp. 39 (S.D.Cal.1982). The court, however, is persuaded that the proper position is expressed in decisions such as In re Equity Funding Corp. of America Securities Litigation, 416 F.Supp. 161 (C.D.Cal.1976) and McFarland, supra. The court finds that to impose liability for “aiding and abetting” a Section 11 violation “would circumvent the express intent of Congress in enacting these statutes that proscribe narrowly defined conduct and allow relief from precisely defined parties.” In re Equity Funding, supra, at p. 181. For these reasons, the court grants DH & S motion to dismiss plaintiffs’ fifth claim for relief (violation of Section 11) as to DH & S. The remaining motions to dismiss this claim for relief are denied. C. Section 12(2) Claim Section 12(2) imposes liability on persons who offer or sell securities by means of any prospectus containing material misrepresentations or omissions; the statute provides that such a person shall be liable “to the person purchasing such security from'him” for rescission or, if the plaintiff has sold the security, for damages. See 15 U.S.C. § Til (2). The definition of a seller under Section 12 is one who “successfully solicits the purchase, motivated at least in part by a desire to serve his own financial interests or those of the securities owner.” Pinter v. Dahl, — U.S. -, 108 S.Ct. 2063, 2079, 100 L.Ed.2d 658 (1988). The court finds that plaintiffs have sufficiently alleged that Smith Barney was a seller within the meaning of" }, { "docid": "18910876", "title": "", "text": "Plaintiffs’ allegations that defendant can be held liable under an aiding and abetting theory under Section 11 also must fail. It is true that over a decade ago this court, in light of the scarcity of authority on point, was constrained to find that charges of aiding and abetting under Section 11 stated a cause of action. In re Caesars Palace Securities Litigation, 360 F.Supp. 366 (S.D.N.Y.1973). Since then, however, the Supreme Court has adopted a narrow construction of Section 11 in Huddleston, supra. Although it did not direct its attention to aiding and abetting liability, by recognizing that the section fails to reach a number of persons primarily involved in the registration process, the court implicitly indicated that expansive liability under Section 11 is inappropriate. Other lower courts have refused to recognize certain aiding and abetting liability under Section 11. See In re Equity Funding Corp. of America Securities Litigation, 416 F.Supp. 161, 181 (C.D.Cal.1976) (“This court is of the opinion that where a statute specifically limits those who may be held liable for the conduct described by the statute, the courts cannot extend liability, under a theory of aiding and abetting, to those who do not fall within the categories of potential defendants described by the statute.”) See also Hagert v. Glickman, Lurie, Eiger & Co., 520 F.Supp. at 1034. This court, following what appears to be the law in the Eighth Circuit and after observing development of securities regula tion narrowing the scope of liability in several areas, is constrained to dismiss the aiding and abetting theory of liability under Section 11. Such liability, however, may remain viable in other sections of the securities laws which do not expressly limit the class of potential defendants. SECTION 10(b) OF THE 1934 ACT Count III of the plaintiffs’ complaint asserts both primary and secondary liability under Section 10(b) of the 1934 Exchange Act and Rule 10b-5 promulgated thereunder. That section 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" }, { "docid": "18812999", "title": "", "text": "liability under the section, and 2) the claim is time-barred. Neither argument has merit. Section 11 of the Securities Act of 1933, 15 U.S.C. § 77k, sets forth the classes of persons who may be sued in civil actions for false registration statements. Among those included are: (a)(4) every accountant, engineer, or appraiser, or any person whose profession gives authority to a statement made by him, who has with his consent been named as having prepared or certified any part of the registration statement, or as having prepared or certified any report or valuation which is used in connection with the registration statement, with respect to the statement in such registration statement, report, or valuation, which purports to have been prepared or certified by him.... Defendants cite Hagert v. Glickman, Lurie, Eiger & Co., 520 F.Supp. 1028 (D.Minn.1981), where the Minnesota court, citing In Re Equity Funding Corporation of America Securities Litigation, 416 F.Supp. 161, 181 (C.D.Cal.1976), stated at 1034: [W]here a statute specifically limits those who may be held liable for the conduct described in the statute, the courts cannot extend liability, under a theory of aiding and abetting, to those who do not fall within the categories of potential defendants described by the statute. To impose such liability would circumvent the express intent of Congress in enacting these statutes that proscribe narrowly defined conduct and allow relief from precisely defined parties. [Italics added.] Purporting to follow Equity Funding, the court dismissed a § 11 claim against defendant accountants and a law firm which was based on the theory of aiding and abetting. By this ruling, the Minnesota court misinterpreted dicta from Equity Funding, supra. In Equity Funding, the court recognized aiding and abetting liability under several sections of federal securities laws, with certain limitations. One such limitation arose where the statute specifically limited the category of defendants. § 11 of the 1933 Act, for example, imposes potential liability only on signators to the registration statement, directors or partners of the issuer or those so named, accountants or other professionals that certify or prepare work appearing in the statement," }, { "docid": "5094007", "title": "", "text": "more persuasive: There are other limitations on the plaintiffs’ aider and abettor claims. Most of the statutes on which plaintiffs base these claims specifically limit the categories of persons that can be held liable under those statutes . . . This court is of the opinion that where a statute specifically limits those who may be held liable for the conduct described by the statute, the courts cannot extend liability, under a theory of aiding and abetting, to those who do not fall within the categories of potential defendants described by the statute. To impose such liability would circumvent the express intent of Congress in enacting these statutes that proscribe narrowly defined conduct and allow relief from precisely defined parties. Id. at 181 (emphasis added). To sanction a theory of aiding and abetting would be to essentially gut the statutory definitions of meaning. Such a theory is not novel. If Congress had intended that this theory apply to section 11, it would have so stated either in the statute or in the legislative history. Because it did not do so, this Court will not move beyond the clear and apparent meaning of the statutory formulation. 2. Accountants. The accountants cannot be held liable under section 11 as the complaint is drafted. The language of that section plainly states that an accountant may be sued only with respect to that part of a registration statement “which purports to have been prepared or certified by him.” 15 U.S.C. § 77k(a)(4) (1976). Thus, even if part of a registration statement is misleading, there is no accountant liability unless the misleading data can be expressly attributed to the accountant. See, e. g., Grimm v. Whitney-Fildago Seafoods, Inc., [1977-78 Transfer Binder] Fed.Sec.L.Rep. (CCH) ¶ 96,029, at 91,608-09 (S.D.N.Y. 1973). As discussed above, the accountants are named in the registration statement as having prepared or certified only the consolidated financial statements for the years 1974 through 1977. The complaint when liberally construed, challenges the 1978 financial information. The registration statement prominently labels all financial statements or summaries of operations for 1978 as “unaudited.” Because of this," }, { "docid": "689223", "title": "", "text": "Ross & Co. v. Redington, 442 U.S. 560, 99 S.Ct. 2479, 2485, 61 L.Ed.2d 82 (1979). In line with this reasoning, we believe the greater and better weight of authority on the issue of aiding and abetting liability under Sections 11 and 12(2) is that expressed in In Re Equity Funding Corporation of America Securities Litigation, 416 F.Supp. 161, 181 (C.D.Cal.1976): [W]here a statute specifically limits those who may be held liable for the conduct described by the statute, the courts cannot extend liability, under a theory of aiding and abetting, to those who do not fall within the categories of potential defendants described by the statute. To impose such liability would circumvent the express intent of Congress in enacting these statutes that proscribe narrowly defined conduct and allow relief from precisely defined parties. See also McFarland v. Memorex Corp., 493 F.Supp. 631, 642 (N.D.Cal.1980); In re Gap Stores Securities Litigation, 457 F.Supp. 1135, 1143 (N.D.Cal.1978); 3 A. Blomberg, Securities Fraud & Commodities Fraud § 8.5(320) (1981). Section 11 and 12(2) are express liability provisions, as contrasted to Sections 17(a) and the 1933 Act and Section 10(b) of the 1934 Act which define violations or make certain acts unlawful. The concept of aiding and abetting, with its origin in the criminal law, is a more proper adjunct to the violation sections. Id., § 8.5(315) at 206.7; see also In re Equity Funding Corporation of America Securities Litigation, 416 F.Supp. at 181. This reasoning applies with equal force to Section 12(2), notwithstanding the expansive view of privity generally taken with regard to that provision. See generally, Wasson v. Securities Exchange Commission, 558 F.2d 879 (8th Cir. 1977). Accordingly, plaintiffs’ claims of aiding and abetting in Counts 1 and 2 of the complaint are dismissed with prejudice. C. Primary Liability of Law firm under Section 11. The law firm seeks to dismiss Count I of the complaint as to it on the ground that it cannot be held liable as a primary violator of Section 11, as it is not among the enumerated classes subject to liability found in that provision. The" }, { "docid": "1340846", "title": "", "text": "for its conduct in aiding and abetting the fraud.” Id. at 1443. The Supreme Court rejected this aiding and abetting theory of secondary liability. Central Bank announces two holdings. First, the Court held that § 10(b) prohibits only the making of a material misstatement (or omission) or the commission of a manipulative act... The proscription does not include giving aid to a person who commits a manipulative or deceptive act. We cannot amend the statute to create liability for acts that are not themselves manipulative or deceptive within the meaning of the statute. Id. at 1448. Second, the Court held that the district court’s grant of summary judgment to Central Bank was appropriate because merely aiding and abetting a manipulative or deceptive act committed by someone else does not trigger liability under § 10(b). Id. at 1455. Defendants, the Court said, can only be held liable under Rule 10b-5 if they themselves “employ[ ] a manipulative device or make[ ] a material misstatement (or omission) on which a purchaser or seller of securities relies ...” Id. Pointing out that a plaintiff must show reliance on the defendant’s misstatement or omission to recover under Rule 10b-5, the Court stated that, “[w]ere we to allow the aiding and abetting action proposed in this case, the defendant could be liable without any showing that the plaintiff relied upon the aider and abettor’s statements or actions.” Id. at 1449-1450. Central Bank precludes liability based on allegations that a group of defendants acted together to violate the securities laws unless each defendant committed a manipulative or deceptive act in furtherance of the scheme. See Dinsmore v. Squadron, Ellenoff, Plesent, Sheinfeld & Sorkin, 135 F.3d 837, 842 (2d Cir.1998) (extending Central Bank’s reasoning to claims that group of defendants conspired to violate securities laws). But see also Wenneman v. Brown, 49 F.Supp.2d 1283, 1290 & n. 3 (D.Utah 1999) (finding no specific reference to conspiracy in Central Bank). A secondary actor may not be liable for primary violations under an alleged scheme to defraud unless all of the requirements for liability under Rule 10b-5 have been" }, { "docid": "22182460", "title": "", "text": "areas where Congress has failed to act. Therefore, Winback concludes, AT & T’s argument more properly is made to Congress rather than to the courts. It relies for this proposition on Central Bank, a recent Supreme Court case refusing to find parties liable for aiding and abetting the violation of a federal securities statute. In Central Bank, the Supreme Court considered whether section 10(b) of the Securi ties Exchange Act of 1934 (the “Exchange Act”), which has been held to create a private cause of action against parties who “commit a manipulative or deceptive act in connection with the purchase of or sale of securities ... extends as well to those who do not engage in the manipulative or deceptive practice but who aid and abet the violation.” Id. at-, 114 S.Ct. at 1443. Examining the language of the statute, as well as the Court’s own tendency to construe narrowly the scope of conduct prohibited by the Exchange Act, the Court concluded that an action cannot be maintained for aiding and abetting securities fraud: “[T]he statute prohibits only the making of a material misstatement (or omission) or the commission of a manipulative act [and this] proscription does not include giving aid to a person who commits a manipulative or deceptive act.” Id. -, 114 S.Ct. at 1148. The language of Central Bank is undeniably broad, and the dissent warned that other mechanisms of common law secondary liability — such as “respondeat superior and other common-law agency principles” — may not survive the majority’s construction of Section 10(b) of the Exchange Act. Id. at -n. 12, 114 S.Ct. at 1460 n. 12 (Stevens, J. dissenting). Nonetheless, we do not believe that the Court’s restrictive reading of the Exchange Act impacts on the determination of the scope of liability under the Lan-ham Act. In Central Bank, the Supreme Court primarily was concerned with broadening the range of unlawful conduct beyond that specifically proscribed by the Act. As the Court framed the issue, aiding and abetting constituted a separate cause of action, and in order to find such liability, the Court would have" }, { "docid": "6506188", "title": "", "text": "and abetting action under section 10(b). 511 U.S. at 170, 114 S.Ct. 1439. The securities laws contain a number of provisions creating an extensive scheme of civil liability. The 1933 and 1934 Acts contain express private rights of action, and the courts have also found private rights of actions to be implied by the terms of sections 10(b) and 14(a) of the 1934 Act. 511 U.S. at 171, 114 S.Ct. 1439. The SEC adopted Rule 10b-5 to further describe the conduct prohibited, and it is under this rule that plaintiffs often brought their actions. The Court noted that determining the elements of rule 10b-5 private action claims had posed difficulty because Congress had not expressly provided for a private 10(b) action and thus had no occasion to offer guidance about the elements of a private liability scheme. 511 U.S. at 172, 114 S.Ct. 1439. The courts thus had to infer how the 1934 Congress would have addressed the issue had the 10b-5 action been included as an express provision of the 1934 Act. 511 U.S. at 173, 114 S.Ct. 1439. Because adherence to the statutory language is the starting point of any case involving construction of a statute, the Supreme Court refused to allow 10b-5 liability for conduct not prohibited by the text of section 10(b). 511 U.S. at 174, 114 S.Ct. 1439. In view of the fact that section 10(b) made no mention of aiding and abetting liability, the Court found that there could be no private right of action for aiding and abetting a 10(b) violation. The Court rejected a claim that language in the statute imposing liability on any person who “directly or indirectly” employs a deceptive practice meant that Congress intended to cover aiding and abetting: The problem, of course, is that aiding and abetting liability extends beyond persons who engage, even indirectly, in a proscribed activity; aiding and abetting liability reaches persons who do not engage in the proscribed activities at all, but who give a degree of aid to those who do. 511 U.S. at 175-76, 114 S.Ct. 1439. Citing section 876(b) of the" }, { "docid": "6506190", "title": "", "text": "Restatement (Second) of Torts, the Court acknowledged that aiding and abetting a wrongdoer ought to be actionable in certain other circumstances, but the issue here was whether aiding and abetting was covered by the statute. The Court stated that it was inconsistent with settled methodology in section 10(b) cases to extend liability beyond the scope of conduct prohibited by the statutory text. The Court found that the statute prohibited only the making of a material misstatement (or omission) or the commission of a manipulative act. Because the statute did not proscribe giving aid to a person who commits a manipulation or deceptive act, the Court declined to extend liability to aiders and abettors. 511 U.S. at 177-78, 114 S.Ct. 1439. The Court further noted that it could reach the same result by examining the express causes of action identified in the 1933 and 1934 Acts as models for implied rights of action under those same sections. None of the express causes of actions in the 1934 Act imposed liability on aiders and abettors, and the Court found it would be “anomalous to impute to Congress an intention in effect to expand the defendant class for 10b-5 actions beyond the bounds delineated for comparable express causes of action.” 511 U.S. at 180, 114 S.Ct. 1439. This analysis was bolstered by the conclusion that an action against aiders and abettors would allow liability when at least one element critical for recovery under rule 10b-5 is absent: reliance. Id. An aiding and abetting action would allow a defendant to be held liable without the usual requisite showing that the plaintiff relied on the defendant’s statements or actions, in contravention of the careful limits on 10b-5 recovery mandated by earlier cases. Id. The Court also examined the history of aiding and abetting liability, noting first that Congress enacted 18 U.S.C. § 2, a general aiding and abetting statute applicable to all federal crimes, in 1909. The statute provides that persons who provide knowing aid to those committing federal crimes, with the intent to facilitate the crime, are themselves committing a crime. 511 U.S. at" } ]

[ { "docid": "15238664", "title": "", "text": "the burden of proof here, it is on the claimant in these cases to establish medical evidence of the impairment and I just don’t find any medical evidence of a significant nervous, psychiatric or mental problem in the record. So, I — I’m not going to order any additional examinations on behalf of — of the government. Do you want additional time to send this lady out at your own expense? ATTORNEY: I would have to discuss that with my associates and my co-counsel in this case. I won’t ask for additional time at this time. ALJ: Well, alright. Then the record will be closed and the matter submitted. And anything further? ATTORNEY: No, sir. After the hearing, counsel for Appellant did not advise the AU that she sought to have additional examinations for her client or that she wanted the record re-opened. In fact, it was not until June 5,1981, several days after the ALJ denied Willis’ application for benefits, that Appellant was examined by Dr. Saim Giray, a psychiatric expert. Dr. Giray’s evaluation of Ms. Willis was completed on June 10. In his report, Dr. Giray concluded that, based on his findings and evaluations of Appellant’s physical and mental condition, Appellant was “totally and permanently disabled and unable to engage in any kind of gainful employment activity in any capacity.” This report was submitted to the Appeals Council along with Appellant’s request for review of the ALJ’s decision denying her benefits. 42 U.S.C. § 405(g) as amended, P.L. 96-265. § 307, 94 Stat. 458 (1980), provides that a reviewing court “may at any time order additional evidence to be taken before the Secretary, but only upon a showing that there is new evidence which is material and that there is good cause for the failure to incorporate such evidence into the record in a prior proceeding.” 42 U.S.C. § 405(g) (emphasis added.) We have examined the legislative history of the 1980 amendment to 42 U.S.C. § 405(g) and it clearly indicates the amendment was designed to limit the ability of a reviewing federal court to remand the case" } ]

[ { "docid": "20227812", "title": "", "text": "DECISION AND ORDER LARIMER, Chief Judge. INTRODUCTION This is an action brought pursuant to 42 U.S.C. § 405(g) to review the final determination of the Commissioner of Social Security (“the Commissioner”) that Edwin Mathews (“plaintiff’) is not disabled under the Social Security Act, and therefore, is not entitled to benefits. The Commissioner and plaintiff both now move for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c). As discussed below, the Commissioner’s decision is reversed, and this matter is remanded for further findings consistent with this opinion. BACKGROUND Edwin Mathews was born on March 31, 1951. (Tr. 52.) He completed ninth grade and has not obtained a GED. (Tr. 367.) His previous work experience includes work as a windshield installer (Tr. 81, 82), a foundry worker (Tr. 91), a mold maker (Tr. 187), a maintenance worker (Tr. 188) and a sider (Id.). This work generally required him to stand eight hours per day, and bend occasionally to frequently. (Tr. 81, 82.) He applied for Supplemental Security Income benefits on March 29, 1995, alleging that his low back pain and cardiac condition were totally disabling. (Tr. 52.) His application was denied initially and on reconsideration. (Tr. 60-63, 75-78.) Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”), and a hearing was held on June 5, 1996. The ALJ determined that plaintiff was not entitled to benefits and denied his claim. (Tr. 17-25.) The ALJ’s decision became the Commissioner’s final decision on June 12, 1998, when the Appeals Council denied plaintiffs request for review. (Tr. 4-5.) On June 25, 1998, the claimant commenced an action in this district seeking review of the Commissioner’s final decision. By order dated June 29, 1999, the court remanded the matter to the Social Security Administration for further administrative proceedings pursuant to sentence four of 42 U.S.C. § 405(g). (Tr. 439-444.) This matter was remanded because the Commissioner was unable to locate the tape of the June 5, 1996 hearing, and was thus unable to produce a transcript of the hearing proceedings. Another administrative hearing resulted in a decision dated July 17, 2000 again denying the plaintiffs" }, { "docid": "16613014", "title": "", "text": "noted that he was unaware of the existence of this letter until late October 1996, when his caseworker at Niagra County Department of Social Services provided him with a copy of the letter in connection with a meeting regarding Medicaid benefits. (Item # 9). Defendant’s reply memorandum contended that this document was not new and material, and that there was no good cause for the failure to submit it earlier in the administrative process. Therefore, defendant opposed any remand for consideration of the Dr. Altieri’s letter. The Social Security Act permits remand for review of new and material evidence pursuant to the sixth sentence of § 205(g), 42 U.S.C. § 405(g), which provides in pertinent part that “[t]he court ... may at any time order additional evidence to be taken before the Commissioner, but only upon a showing that there is new evidence which is material and that there is good cause for the failure to incorporate such evidence into the record in a prior proceeding----” Id. See, Lisa v. Secretary of Health and Human Services, 940 F.2d 40, 42 (2d Cir.1991). In order to justify remand under this provision, the plaintiff must show (1) that the proffered evidence is “new” and not merely cumulative of what is already in the record, (2) that the evidence is material, i.e., both relevant to the claimant’s condition during the time period for which benefits were denied and probative, and (3) good cause for failing to present the evidence earlier. Id. at 43 (citing Szubak v. Secretary of Health and Human Services, 745 F.2d 831, 833 (3d Cir.1984); Cutler v. Weinberger, 516 F.2d 1282,1285 (2d Cir.1975)). Dr. Altieri’s letter is “new” in that it is not merely cumulative of the prior evidence in the record. It is obviously material, as it contains a treating physician’s report which was prepared prior to the second hearing and which contains an opinion that plaintiff is disabled. As such, the letter might have changed the ALJ’s decision, had the evidence been before him. Finally, good cause exists for the failure to present this evidence earlier, since this" }, { "docid": "20227813", "title": "", "text": "back pain and cardiac condition were totally disabling. (Tr. 52.) His application was denied initially and on reconsideration. (Tr. 60-63, 75-78.) Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”), and a hearing was held on June 5, 1996. The ALJ determined that plaintiff was not entitled to benefits and denied his claim. (Tr. 17-25.) The ALJ’s decision became the Commissioner’s final decision on June 12, 1998, when the Appeals Council denied plaintiffs request for review. (Tr. 4-5.) On June 25, 1998, the claimant commenced an action in this district seeking review of the Commissioner’s final decision. By order dated June 29, 1999, the court remanded the matter to the Social Security Administration for further administrative proceedings pursuant to sentence four of 42 U.S.C. § 405(g). (Tr. 439-444.) This matter was remanded because the Commissioner was unable to locate the tape of the June 5, 1996 hearing, and was thus unable to produce a transcript of the hearing proceedings. Another administrative hearing resulted in a decision dated July 17, 2000 again denying the plaintiffs claim. (Tr. 364-414, 344-357.) The plaintiff elected not to file exceptions with the Appeals Council, thus making the ALJ’s decision the final position of the Commissioner pursuant to 20 C.F.R. § 404.984(d). Plaintiff then commenced this action seeking review of the Commissioner’s final decision pursuant to 42 U.S.C. § 405(g). DISCUSSION The Commissioner’s decision that plaintiff was ineligible to receive Supplemental Security Income benefits must be affirmed if it is supported by substantial evidence. 42 U.S.C. § 405(g); Rivera v. Sullivan, 923 F.2d 964, 967 (2d Cir.1991). Substantial evidence is defined as “more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938)). Thus, “[i]t is not the function of a reviewing court to decide de novo whether a claimant was disabled.” Melville v. Apfel, 198 F.3d 45, 52 (2d Cir.1999). Therefore, the" }, { "docid": "21737726", "title": "", "text": "Akopyan again appealed, filing a motion for summary judgment in district court. Notably, in this motion, Akopyan challenged the ALJ’s decision only on the ground that “[t]he record establishes that the ALJ did not comply with the Supreme Court’s mandate that he accurately assess the evidence as would a reasonable mind.” Akopyan did not allege that a remand was again required to develop a full and fair record. On May 6, 1998 the parties appeared before a magistrate judge for the purpose of arguing their cross-motions for summary judgment. After the hearing, the parties agreed that the matter should be remanded to the Commissioner of the Social Security Administration for a new determination on the merits of Akopyan’s claims. The district court signed the 1998 remand judgment pursuant to the stipulation of counsel, which stated that the action would be remanded to the Commissioner pursuant to Sentence 4 of 42 U.S.C. § 405(g) for a new determination of the merits of plaintiffs application for benefits. Upon remand, the Commissioner will assign the matter to an Administrative Law Judge who has not previously acted by [sic] plaintiffs claim. Plaintiffs counsel shall retain the right to move to recuse any particular Administrative Law Judge (‘ALJ’). The Administrative Law Judge will either accept the diagnoses and opinions of plaintiffs treating physicians, or will fully explain why he or she does not accept those diagnoses and opinions..... The Commissioner may not obtain any - additional consultative examinations of plaintiff. At this point, the earlier sentence six remand was termi nated. .The sentence six post-remand proceedings had been completed in .accordance with the district court’s 1994 remand order, the Commissioner had returned to court, and the court had entered a sentence four remand, which constitutes a final judgment. Melkonyan, 501 U.S. at 102, 111 S.Ct. 2157. Akopyan’s argument that the sentence four remand was somehow not a final judgment because it required further administrative proceedings has been squarely rejected by the Supreme Court, as discussed above. Because this sentence four remand was a final judgment in the case, the time frame for Akopyan to file" }, { "docid": "21737720", "title": "", "text": "showing that there is new evidence which is material and that there is good cause for the failure to incorporate such evidence into the record in a prior proceeding; and the Commissioner of Social Security shall, after the case is remanded, and after hearing such additional evidence if so ordered, modify or affirm the Commissioner’s findings of fact or the Commissioner’s decision, or both, and shall file with the court any such additional and modified findings of fact and decision, and a transcript of the additional record and testimony upon which the Commissioner’s action in modifying or affirming was based. 42 U.S.C. § 405(g). Sentence six remands may be ordered in only two situations: where the Commissioner requests a remand before answering the complaint, or where new, material evidence is adduced that was for good cause not presented before the agen cy. Schaefer, 509 U.S. at 297 n. 2, 113 S.Ct. 2625. Unlike sentence four remands, sentence six remands do not constitute final judgments. Rather, “[i]n sentence six cases, the filing period does not begin until after the postremand proceedings are completed, the Commissioner returns to court, the court enters a final judgment, and the appeal period runs.” Melkonyan, 501 U.S. at 102, 111 S.Ct. 2157. II. Background On December 22, 1987, Sogomon Ako-pyan filed an application for Supplemental Security Income payments under Title XVI of the Social Security Act, alleging that he had become disabled. Following the denial of Akopyan’s claim by the Commissioner, Akopyan sought review of his application by an administrative law judge (“ALJ”), who also determined that Ako-pyan was not disabled.. Akopyan then sought judicial review of the ALJ’s determination in the United States District Court for the Central District of California. On May 2, 1994, the district- court entered an order and judgment adopting a report and recommendation of a magistrate judge and remanding the case for further administrative proceedings (the “1994 remand”). The 1994 remand was issued pursuant to the sixth sentence of 42 U.S.C. § 405(g). Further administrative proceedings were then held in accordance with the district court’s remand order. Akopyan appeared and" }, { "docid": "22948521", "title": "", "text": "for disability insurance benefits on the merits, the district court cannot consider that new evidence in deciding whether to uphold, modify, or reverse the ALJ’s decision.”). There is no backdoor route to get new evidence considered for the first time at the court of appeals level; the only method to have new evidence considered is to ask for a sentence six remand under 42 U.S.C. § 405(g), a claim which is analyzed below. II. New and Material Evidence 'Plaintiff asserts that the material submitted to the Appeals Council was new and material. Sentence six of 42 U.S.C. § 405(g) allows a remand to develop additional evidence in the record, “but only upon a showing that there is new evidence which is material and that there is good cause for failure to incorporate such evidence into the record in a prior proceeding.” Plaintiff avers that the standard was met. We disagree. The lack of good cause for incorporating this evidence in the record is the simplest reason why the standard for remand is not met. Plaintiff has not detailed any obstacles that prevented him from entering this evidence, all of which predates the hearing before the ALJ on October 28, 2004. See Willis v. Sec’y of Health & Human Servs., 727 F.2d 551, 554 (6th Cir.1984) (per curiam). Indeed, plaintiff had no apparent problem submitting evidence from July 2004 regarding his gangrenous infection. Yet, plaintiff apparently had a problem entering evidence from 2001, and March, April, and June of 2004. To show good cause, plaintiff points only to the fact that the ALJ closed the record after the hearing for all but reports from Dr. Naum. Indeed, it is not clear that the ALJ did in fact close the record. Even if the ALJ did close the record, plaintiffs counsel has not explained why he failed to submit this evidence which predates the hearing before the ALJ closed the record. Additionally, plaintiffs counsel did not seek to have the record remain open to submit the evidence here provided, which in and of itself shows a lack of good cause. See Curry" }, { "docid": "23266194", "title": "", "text": "consider new and material evidence “if it relates to the period on or before the date of the administrative law judge hearing decision.”). Thus, medical records that document Schmidt’s condition as it existed one to three years after the ALJ rendered his decision, while “new,” do not constitute “material” evidence for purposes of a potential remand pursuant to 42 U.S.C. § 405(g). As previously mentioned, evidence is material only to the extent that it could have affected the outcome of the ALJ’s decision. Medical records documenting Schmidt’s medical condition as it existed in 2002-03 could not have affected the bottom line of a decision rendered in December 2000. Schmidt’s attempt to characterize the employment records as new and material evidence fails for a different reason. It is undisputed that these records existed and were available to Schmidt at the time of the administrative hearing. In deed, the most recent of these evaluations predates the administrative hearing by-seven months. Schmidt has offered no explanation as to why the records were not submitted to the ALJ in time for consideration as part of the record in the administrative proceeding. Clearly then, this evidence is not “new” for purposes of our authority to order a remand pursuant to 42 U.S.C. § 405(g). Schmidt suggests that the employment records were “new” evidence because they could have been submitted to the Appeals Council if the Council had granted his eleventh-hour request for a sixty-day extension for the submission of additional evidence. While not stated explicitly in his briefing to this court, we presume that Schmidt intends this argument as a vehicle for demonstrating good cause as to why the employment records were never submitted to the Social Security Administration. In essence, Schmidt would have us hold that a claimant who fails to submit readily available evidence to an ALJ, then obtains an extension of time to submit additional evidence to the Appeals Council but fails to submit any evidence during the extended period, may justify these failures by pointing to a second, last-minute request for a second extension of time that was not granted. We" }, { "docid": "11126886", "title": "", "text": "the final decision of SSA. In the latter two appeals, the claimant had requested counsel, but none appeared on his behalf. The brother of the claimant filed suit on August 28, 1998. The district court appointed counsel for the brother, and the parties filed cross-motions for summary judgment. The brother argued that because the claimant had more than forty QCs, he qualified under an exception to the general bar against paying benefits to alien beneficiaries. SSA countered that the claimant had not accrued forty QCs, and submitted, as evidence, computerized extracts of his work history that had not been included in the administrative record, purporting to show that the claimant had accrued only thirty QCs. At a hearing, the brother argued that he was entitled to a judgment on the then-existing administrative record, while SSA argued that the case should be remanded for “good cause” so that it could supplement the record with the certified extracts of the claimant’s work history. The brother responded that there was no good cause for SSA’s failure to include the earnings history in the original administrative record. On September 17, 1999, over the brother’s objection, the district court ruled that “the new evidence counsels in favor of additional agency proceedings,” and because there was “good cause shown,” remanded the case “pursuant to sentence six of Section 205(g) of the Social Security Act, 42 U.S.C. § 405(g).” Krishnan v. Apfel, No. 98-CV-2059 at 2 (D.D.C. Sept. 17, 1999) (emphasis added). On remand, an ALJ held a hearing on March 27, 2000, at which the brother, who was represented by counsel, submitted documents, including pay stubs from the claimant’s work at Polytechnic, purporting to show that the claimant had earned forty-two QCs. SSA submitted the computerized employment extracts it had first brought to the district court, and argued that because social security taxes were not withheld from money paid to the claimant for his work at Polytechnic, he had earned less than forty QCs. By decision of April 18, 2000, the ALJ agreed with SSA, finding that the claimant had earned less than forty QCs because" }, { "docid": "5346084", "title": "", "text": "district court to find claimant disabled). Where the district court cannot discern the basis for the Commissioner’s decision, a sentence-four remand may be appropriate to allow him to explain the basis for his decision. Falcon v. Heckler, 782 F.2d 827, 829-30 (11th Cir.1984) (remand was appropriate to allow ALJ to explain his basis for determining that claimant’s depression did not significantly affect her ability to work) (treating psychologist acknowledged that claimant had improved in response to treatment and could work in a supportive, non-competitive, tailor-made work environment). On remand under sentence four, the ALJ should review the case on a complete record, including any new material evidence. Diorio v. Heckler, 721 F.2d 726, 729 (11th Cir.1983) (necessary for ALJ on remand to consider psychiatric report tendered to Appeals Council); Reeves v. Heckler, 734 F.2d 519, 522 n. 1 (11th Cir.1984) (ALJ should consider on remand the need for orthopedic evaluation). After a sentence-four remand, the district court enters a final and appealable judgment immediately, and then loses jurisdiction. Jackson, 99 F.3d at 1089, 1095. In contrast, sentence six of 42 U.S.C. § 405(g) provides: The ... court may at any time order additional evidence to be taken before the Commissioner of Social Security, but only upon a showing that there is new evidence which is material and that there is good cause for the failure to incorporate such evidence into the record in a prior proceeding; 42 U.S.C. § 405(g). To remand under sentence six, the claimant must establish: 1.) that there is new, non-cumulative evidence; 2.) that the evidence is material — relevant and probative so that there is a reasonable possibility that it would change the administrative result; and 3.) there is good cause for failure to submit the evidence at the administrative level. See Jackson, 99 F.3d at 1090-92; Cannon v. Bowen, 858 F.2d 1541, 1546 (11th Cir.1988); Smith v. Bowen, 792 F.2d 1547, 1550 (11th Cir.1986); Caulder v. Bowen, 791 F.2d 872, 877 (11th Cir.1986); see also Keeton v. Dept. of Health and Human Serv., 21 F.3d 1064, 1068 (11th Cir.1994). A sentence-six remand may be" }, { "docid": "13461925", "title": "", "text": "a California state agency, it was determined that Burton’s disability had ceased in September 1979 and that his entitlement to SSI benefits terminated at the end of November 1979. Burton sought and obtained review of this determination by an Administrative Law Judge. On March 21, 1980 the ALJ found that Burton no longer was disabled. Burton did not submit any evidence at the hearing before the ALJ contradicting the apparent improvement in his initial disabilities. The ALJ’s decision became the final decision of the Secretary when the Appeals Council approved it on September 9, 1980. Burton presented evidence before the Appeals Council based on a 1977 hospital re port and 1980 letter from his treating physician relating to problems connected with his alcoholism. His presentation included the results of new psychological testing dated August 13, 1980. The testing indicated the presence of a “severe impairment in Mr. Burton’s ability to acquire new information and skill or even to reason with his existing information and skill.” The report concluded, “Mr. Burton’s former work as a janitor is now impossibly hard. He may be unable to perform even the most simple tasks satisfactorily.” The Appeals Council, without comment, denied Burton’s request for review of this evidence. Burton sought judicial review in the district court. A psychiatric evaluation dated October 27,1980 concluding that the deterioration of mental capacity was due to long-term alcohol abuse was submitted to the district court. In addition to arguing that the case should be reversed on the merits, Burton requested that the court remand the case for a further administrative hearing on the basis of the new medical evidence relating to the mental effects of his chronic alcoholism. The court declined to remand the case and entered summary judgment for appellee. II. At the outset, we of course recognize that a remand to the Secretary to consider additional evidence not contained in the administrative record has been limited by the June 9, 1980 amendment to § 405(g) of the Social Security Act. 42 U.S.C. § 405(g) (Supp. V 1981); Ward v. Schweiker, 686 F.2d 762, 764 (9th Cir.1982);" }, { "docid": "19972976", "title": "", "text": "pulmonary disease (COPD) from nicotine abuse. Likewise, pulmonary function tests performed on March 14, 2006, were consistent with severe obstructive pulmonary impairment. Although doctors repeatedly advised Mouser to stop smoking, at the time of the April 6, 2006, hearing before the administrative law judge (ALJ) he was still smoking a pack of cigarettes per day. Mouser filed for disability insurance benefits and supplemental security income benefits on April 18, 2005. On June 30, 2006, the ALJ issued an opinion that concluded that Mouser was not disabled. The ALJ found that Mouser’s testimony was not entirely credible in light of the medical evidence and his failure to follow doctors’ orders to stop smoking. After hearing testimony from a vocational expert, the ALJ concluded that although Mouser could not perform his past relevant work, he possessed the residual functional capacity to perform a range of medium work with restrictions and was therefore not disabled. The Appeals Council denied Mouser’s request for review on October 4, 2006, making the ALJ’s decision final. Mouser timely appealed the decision to the district court and alternatively asked the district court to remand his case to the ALJ so that a recently issued report concerning Mouser’s mental capacity could be evaluated. The magistrate judge granted summary judgment to the Commissioner, affirming the ALJ’s decision, and denied Mouser’s request to remand. 2008 U.S. Dist. LEXIS 7307 No. 3:06-cv-203 (E.D.Ark. Jan. 31, 2008). It is from these orders that Mouser appeals. II Mouser argues that the district court erred in not remanding this case for consideration of new evidence pursuant to 42 U.S.C. § 405(g), a decision that we review for abuse of discretion. Thomas v. Sullivan, 928 F.2d 255, 260 n.6 (8th Cir. 1991). Section 405(g) allows the court to remand a case “upon a showing that there is new evidence which is material and that there is good cause for the failure to incorporate such evidence into the record in a prior proceeding....” The report at issue was released on December 6, 2006, after Mouser underwent a psychological evaluation performed by Dr. George M. DeRoeck. This evaluation" }, { "docid": "23696413", "title": "", "text": "consider the new psychiatric evidence because the Appeals Council had done so. In a thorough and well-reasoned opinion, the district court accepted the magistrate judge’s recommendation in full and affirmed the ALJ’s denial of disability benefits. II Cline’s primary argument is that because the Appeals Council considered his new psychiatric evidence, the district court was required to do so as well. He is mistaken. In Cotton v. Sullivan, 2 F.3d 692, 695-96 (6th Cir.1993), this court decided a case very much like Cline’s, holding that where the Appeals Council considers new evidence but declines to review a claimant’s application for disability insurance benefits on the merits, the district court cannot consider that new evidence in deciding whether to uphold, modify, or reverse the ALJ’s decision. The district court can, however, remand the case for further administrative proceedings in light of the evidence, if a claimant shows that the evidence is new and material, and that there was good cause for not presenting it in the prior proceeding. Id. at 696. When the district court issues such a remand order, under sentence six of 42 U.S.C. § 405(g), it “does not rule in any way as to the correctness of the administrative determination. Rather, the court remands because new evidence has come to light that was not available to the claimant at the time of the administrative proceeding and that evidence might have changed the outcome of the prior proceeding.” Melkonyan v. Sullivan, 501 U.S. 89, 98, 111 S.Ct. 2157, 2163, 115 L.Ed.2d 78 (1991); see also Faucher v. Secretary of Health and Human Services, 17 F.3d 171, 173-75 (6th Cir.1994). In order to obtain a remand for further administrative proceedings, section 405(g) clearly requires a showing of both materiality and good cause, and Cline falls far short with respect to the latter requirement. The district court noted that Cline’s primary argument on “good cause” appeared to be that his legal representative was not sufficiently acquainted with him in order to determine his need for psychiatric evaluation. According to Cline’s counsel, it was only at the hearing that he was able" }, { "docid": "8440712", "title": "", "text": "one rational interpretation of the evidence, the ALJ’s conclusion must be upheld. Richardson v. Perales, 402 U.S. 389,399, 91 S.Ct. 1420,1426,28 L.Ed.2d 842 (1971); Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir.1982). Based on the reports of Drs. Patterson and Lunianski, and to a lesser extent, Dr. Heiman, the ALJ could rationally conclude that Allen’s emotional disorder was not disabling. Moreover, there was some evidence that his disorder was amenable to control. The psychiatric evidence Allen cites in support of his argument is selective and shows primarily that a disorder exists. It does not show that it was of disabling severity. The ALJ’s conclusion is supported by substantial evidence. NEW EVIDENCE Allen asks this court to remand for consideration of new evidence consisting of the results of objective psychological tests and psychiatric evaluations. A claimant seeking remand must show “thát there is' new evidence which is material and that there is good cause for the failure to incorporate such evidence into the record in a prior proceeding.” 42 U.S.C. § 405(g). Allen has not shown good cause for his failure to provide these psychiatric evaluations earlier in the proceedings. Although the reports offered were not made until 1982, Allen was aware of his mental problems at the time of the hearing. The only explanation Allen has offered for his failure to obtain the evidence earlier is that he was not represented by an attorney at the administrative hearing. Even if we accept this argument, it would not excuse Allen’s failure to introduce the evidence in the district court. The obvious explanation is that when Allen was unsuccessful in the agency and district court hearings, he sought out new expert witnesses who might better support his disability claim. The “good cause” requirement would be meaningless if such circumstances were sufficient to allow introduction of new evidence. Our decision in Ward v. Schweiker, 686 F.2d 762 (9th Cir.1982), does not hold otherwise. In that case, doctors had failed to discover that the claimant had been suffering from myasthenia gravis until she was admitted to a hospital after the Secretary’s decision. Thus," }, { "docid": "23696414", "title": "", "text": "such a remand order, under sentence six of 42 U.S.C. § 405(g), it “does not rule in any way as to the correctness of the administrative determination. Rather, the court remands because new evidence has come to light that was not available to the claimant at the time of the administrative proceeding and that evidence might have changed the outcome of the prior proceeding.” Melkonyan v. Sullivan, 501 U.S. 89, 98, 111 S.Ct. 2157, 2163, 115 L.Ed.2d 78 (1991); see also Faucher v. Secretary of Health and Human Services, 17 F.3d 171, 173-75 (6th Cir.1994). In order to obtain a remand for further administrative proceedings, section 405(g) clearly requires a showing of both materiality and good cause, and Cline falls far short with respect to the latter requirement. The district court noted that Cline’s primary argument on “good cause” appeared to be that his legal representative was not sufficiently acquainted with him in order to determine his need for psychiatric evaluation. According to Cline’s counsel, it was only at the hearing that he was able to spend “a considerable amount of time” with Cline and come to the conclusion that a “psychological” evaluation might be useful. The district court properly found this excuse to be unpersuasive. The district court stated that counsel should have notified the ALJ of Cline’s need for a psychiatric examination as soon as he realized it at the hearing. Counsel had an entire month to notify the ALJ before the ALJ made his decision, but Cline’s lawyer elected to wait and submit the new evidence to the Appeals Council for the first time. This is clearly not good cause. Even if we excuse counsel’s failure to acquaint himself with his client before the hearing, Cline cannot benefit from any failure to notify the ALJ at or following the hearing regarding the need to consider additional psychiatric evidence. Cline also suggests that because the Appeals Council considered his new psychiatric evidence, it might implicitly have found good cause. Cline fails to realize, however, that the Appeals Council is not required to find good cause in order to" }, { "docid": "11126887", "title": "", "text": "the earnings history in the original administrative record. On September 17, 1999, over the brother’s objection, the district court ruled that “the new evidence counsels in favor of additional agency proceedings,” and because there was “good cause shown,” remanded the case “pursuant to sentence six of Section 205(g) of the Social Security Act, 42 U.S.C. § 405(g).” Krishnan v. Apfel, No. 98-CV-2059 at 2 (D.D.C. Sept. 17, 1999) (emphasis added). On remand, an ALJ held a hearing on March 27, 2000, at which the brother, who was represented by counsel, submitted documents, including pay stubs from the claimant’s work at Polytechnic, purporting to show that the claimant had earned forty-two QCs. SSA submitted the computerized employment extracts it had first brought to the district court, and argued that because social security taxes were not withheld from money paid to the claimant for his work at Polytechnic, he had earned less than forty QCs. By decision of April 18, 2000, the ALJ agreed with SSA, finding that the claimant had earned less than forty QCs because “[o]n campus work which is done by [foreign] students is excluded from employment (20 C.F.R. 404.1036(a)).” The district court affirmed SSA’s remand decision. Krishnan v. Massanari, 158 F.Supp.2d 67 (D.D.C.2001). Rejecting the brother’s position that he was entitled to judgment based on the original administrative record, the court noted that the administrative record had not included a printout of the claimant’s earnings record - “a standard exhibit in the administrative record of nearly every disability case.” Id. at 71. Upon reviewing the supplemented administrative record on remand, the court found that “substantial evidence” supported the ALJ’s decision that the claimant had not accrued forty QCs. Accordingly, the district court denied the brother’s motion for summary judgment and motion to vacate the earlier remand. B. On appeal, the brother renews his contention that the cláimant qualified for benefits under an exception to the nonpayment provision for alien beneficiaries because the claimant had earned more than forty QCs, and contends that the district court’s remand under sentence six was unlawful and that he is entitled to benefits" }, { "docid": "15238668", "title": "", "text": "an AU had found that claimant had failed to substantiate her claim of mental impairment at the administrative hearing. During the pendency of the Appeals Council review, however, claimant developed debilitating mental symptoms, and was hospitalized. In this instance the Fifth Circuit found good cause for her failure to incorporate the evidence into the administrative proceeding. 702 F.2d at 606. Dorsey is, however, distinguishable from the case at bar. Here, Appellant offers absolutely no explanation of why the medical evidence she seeks to have considered on remand could not have been presented to the ALJ in the May 8, 1981 hearing. Unlike Dorsey, there is no contention that the onset of her impairment occurred after the hearing. Furthermore, as noted above, the transcript of the hearing before the ALJ clearly indicates that counsel for the Appellant did not seek to have the record remain open until such time as other evidence could be made a part of the record. Nothing in the record indicates any good cause for the failure to elicit medical testimony from Dr. Giray, prior to the close of the proceedings before the AU. If counsel for Appellant believed there was evidence of a psychiatric condition in support of the claim of disability, that evidence should have been before the AU. Absent a demonstration of good cause to excuse the failure to incorporate this evidence in the original hearing, we cannot order a remand for the purposes of requiring the Secretary to consider new evidence. To do so would directly contravene the express language contained in the 1980 amendment to 42 U.S.C. § 405(g). Because we conclude that Appellant has failed to satisfy the “good cause” test of section 405(g), we do not decide the question of whether Dr. Giray’s report constituted new and material evidence. Appellant also claims that substantial evidence does not exist to support the Secretary’s finding that she is not disabled as defined in 42 U.S.C. § 423(d)(2)(B). Under the statute a widow is considered not disabled unless her physical or mental impairments are of a level of severity which preclude her from" }, { "docid": "22113595", "title": "", "text": "disabled. F. The district court did not err in refusing to remand the case for consideration of additional evidence Foster finally argues that the district court erred in refusing to remand the case to the ALJ for consideration of the December 1998 report by Dr. Lewis. The district court refused to remand the case because (1) the report was not part of the record for purposes of substantial evidence review, and (2) a remand was not warranted under 42 U.S.C. § 405(g) because Foster had failed to show “good cause” for her failure to submit the evidence during the prior proceeding. As the Commissioner has pointed out, this court has repeatedly held that evidence submitted to the Appeals Council after the ALJ’s decision cannot be considered part of the record for purposes of substantial evidence review. Cline v. Comm'r of Social Security, 96 F.3d 146, 148 (6th Cir.1996) (“[WJhere the Appeals Council considers new evidence but declines to review a claimant’s application for disability insurance benefits on the merits, the district court cannot consider that new evidence in deciding whether to uphold, modify, or reverse the ALJ’s decision.”). “The district court can, however, remand the case for further administrative proceedings in light of the evidence, if a claimant shows that the evidence is new and material, and that there was good cause for not presenting it in the prior proceeding.” Id. For the purposes of a 42 U.S.C. § 405(g) remand, evidence is new only if it was “not in existence or available to the claimant at the time of the administrative proceeding.” Sullivan v. Finkelstein, 496 U.S. 617, 626, 110 S.Ct. 2658, 110 L.Ed.2d 563 (1990). Such evidence is “material” only if there is “a reasonable probability that the Secretary would have reached a different disposition of the disability claim if presented with the new evidence.” Sizemore v. Sec’y of Health & Human Servs., 865 F.2d 709, 711 (6th Cir.1988). A claimant shows “good cause” by demonstrating a reasonable justification for the failure to acquire and present the evidence for inclusion in the hearing before the ALJ. Willis v." }, { "docid": "3220502", "title": "", "text": "eleven-year period. For all that can be discerned from the record before us, Hol-lon’s 612-page submission might be entirely cumulative of materials that already are a part of the administrative record. If this were not the case, it presumably would not be difficult for Hollon to identify some material distinction between the existing record and her voluminous submission. Tellingly, she has not done so. Hollon’s showing is similarly deficient on the “good cause” prong of a request for a sentence six remand. “A claimant shows ‘good' cause’ by demonstrating a reasonable justification for the failure to acquire and present the evidence for inclusion in the hearing before the ALJ.” Foster, 279 F.3d at 357. Again, there is no indication that any of the evidence cited by Hollon as grounds for a remand was unavailable to her during the course of the administrative proceedings. Nor has she identified any obstacles to her submission of this evidence during those proceedings. Even assuming that Hollon’s pro se status is relevant to the “good cause” inquiry, see, e.g., Jones v. Sullivan, 949 F.2d 57, 61 (2d Cir.1991), she was represented by counsel by the time the matter reached the Appeals Council — and, indeed, her attorney was successful in supplementing the administrative record at that point. Accordingly, we agree with the district court’s conclusion that Hollon has not met the standards for a sentence six remand for the consideration of new evidence. Nonetheless, Hollon argues that she should be relieved of the obligation to satisfy these statutory requirements of materiality and good cause, where the district court already had ordered a remand under sentence six of § 405(g) to allow the Commissioner to either locate or reconstruct the lost administrative record. As Hollon observes, nothing in the district court’s order of remand precluded the Commissioner from receiving her additional evidence — and, indeed, the pertinent agency regulations seemingly confirm the Commissioner’s authority to proceed in this fashion upon remand from the district court, see 20 C.F.R. § 404.983. Because the case was remanded at the Commissioner’s request, and because it was the Commissioner’s negligence" }, { "docid": "22468070", "title": "", "text": "is the decision of the administrative law judge- The correctness of that decision depends on the evidence that was before him- He cannot be faulted for having failed to weigh evidence never presented to him.... Eads, 983 F.2d at 817. Thus, this will be our rule: when the AC has denied review, we will look only to the evidence actually presented to the ALJ in determining whether the ALJ’s decision is supported by substantial evidence. In different kinds of cases, however, we will consider evidence submitted only to the AC. For example, 42 U.S.C. § 405(g) permits courts to remand a case to the Social Security Administration for consideration of newly discovered evidence. To succeed on a claim that remand is appropriate, Falge would have had to show that (1) new, noncumulative evidence exists, (2) the evidence is material such that a reasonable possibility exists that the new evidence would change the administrative result, and (3) good cause exists for the applicant's failure to submit the evidence at the appropriate administrative level. See Cannon v. Bowen, 858 F.2d 1541 (11th Cir.1988); see also Keeton, 21 F.3d at 1067 (court may remand to Secretary if new evidence is material and good cause exists for failure to incorporate the evidence in the record during proceedings before the ALJ). But, Falge has provided no reason — no good cause — why Dr. Inga’s report was not made available during proceedings before the ALJ. We accept that, if an applicant can show good cause for his failure to introduce evidence during a hearing before the ALJ (even if the evidence was available to the applicant before the ALJ’s decision) courts may consider that evidence in deciding whether the case should be remanded for further administrative proceedings to include the new evidence. But again, that kind of case is not before us. Falge has neither shown nor alleged good cause for his failure to introduce Dr. Inga’s May 1994 report during the hearing before the ALJ. And, we can think of another kind of ease where we will consider evidence submitted only to the AC." }, { "docid": "22875989", "title": "", "text": "record.” Id. Unlike the administrative process, which is governed by the regulations, the standards for judicial review are governed by the Social Security Act. A claimant who was unsuccessful in the administrative process may seek judicial review once there is a final decision by the Commissioner of Social Security. See 42 U.S.C. § 405(g); see also Mathews v. Eldridge, 424 U.S. 319, 328, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). If the Appeals Council denies the request for review, the ALJ’s decision is the Commissioner’s final decision. See Sims v. Apfel, 530 U.S. 103, 120 S.Ct. 2080, 2083, 147 L.Ed.2d 80 (2000). The Act provides that “[t]he findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive.” 42 U.S.C. § 405(g) (emphasis added). Sentence Four of § 405(g) provides that “[t]he court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing.” Id. (emphasis added). If the claimant proffers evidence in the district court that was not previously presented to the ALJ, then the district court may remand to the Commissioner but that disposition is governed by Sentence Six of § 405(g). That sentence provides, The court may, on motion of the Commissioner of Social Security made for good cause shown before the Commissioner files the Commissioner’s answer, remand the case to the Commissioner of Social Security for further action by the Commissioner of Social Security, and it may at any time order additional evidence to be taken before the Commissioner of Social Security, but only upon a showing that there is new evidence nkhich is material and that there is good cause for the failure to incorporate such evidence into the record in a prior proceeding', and the Commissioner of Social Security shall, after the case is remanded, and after hearing such additional evidence if so ordered, modify or affirm the Commissioner’s findings of fact or the Commissioner’s decision, or both, and shall file" } ]

[ { "docid": "22806567", "title": "", "text": "not relieved from liability for a loss Avithin the condition of the bonjl by reason of the laches or negléct of the board of directors, fiot amounting to fraud or bad faith, and that the acts of. ordinary agents or employés of the indemnified corporation, conniving at or cooperating with the wrongful act of the bonded employé, will not be imputed to the corporation. United States v. Kirkpatrick, (1824) 9 Wheat. 720, 736; Minor v. Mechanics' Bank, (1828) 1 Pet. 46; Taylor v, Bank of Kentucky, (1829) 2 J. J. Marshall (Ky.), 564; Amherst Bank v. Root, (1841) 2 Metcalf, 522 ; Louisiana State Bank v. Ledoux, (1848) 3 La. Ann. 674; Pittsburg, Port Wayne & Chicago Ry. Co. v. Shaeffer, (1868) 59 Penn. St. 350, 356 ; Atlas Bank v. Brownell, (1869) 9 Rhode Island, 168. The doctrine of these cases is thus epitomized in 59 Penn. St. 357: “ Corporations can act only by officers and agents. They do not guaranty to the sureties of one officer the fidelity of the others. The rules and regulations which they may establish in regard to periodical returns and payments are for their own security, and not for the benefit of the sureties. The sureties, by executing the bond, became responsible for the fidelity of their principal. It is no collateral engagement into which they enter, dependent on some contingency or condition different from the engagement of their principal. They become joint obligors with1 him in the same bond, and with the same condition underwritten. The fact that there were other unfaithful officers and agents of the corporation, who knew and connived at his infidelity, ought not in reason, and does not in law or equity, relieve them from their responsibility for him. They undertake that he shall be honest, though all around him are rogues. . Were the rule different, by a conspiracy between the officers of a bank of other moneyed institution, all their sureties might be discharged. It is impossible that a doctrine leading to such consequences can be sound. In a suit by a bank against a" } ]

[ { "docid": "1375200", "title": "", "text": "corporation paid the premiums on the bond for two years. There is nothing in the evidence to show that the plaintiff ever disaffirmed the act of its president in his official capacity with reference to the procurement of the bond. To prove that Cardarelli was not acting for his corporation when he signed the application proves too much for the plaintiff’s case. The application specifically states that the bond cannot be executed until the application is fully completed and returned to the defendant. Eliminate the application and there would have been no bond, and except for the application there was no meeting of the minds of the parties. See American Express Co. v. Kimball & Nutter, 77 N. H. 52, 54, 86 A. 258. The action of Fidelity & Deposit Co. v. Courtney, 186 U. S. 342, 22 S. Ct. 833, 836, 46 L. Ed. 1193, was an action wherein recovery was sought on a bond of indemnity to save a bank harmless against any loss which it might sustain by reason of any fraud committed by its president. During the trial the court refused to permit the defendant to read as evidence to the jury a letter written by defendant to the bank concerning a renewal of the policy to whieh the cashier of the bank replied that the president had performed his duty in an acceptable and satisfactory manner and he (the cashier) knew no reason why the bond should not be continued. It appeared that the original bond was based upon an application containing questions and answers similar in effect to those in the instant case. It was held that it was either to refuse to admit the correspondence in evidence. The ease is so clearly applicable to both the question of the admissibility of the application and the authority of Cardarelli that we quote from it at considerable length. In the course of the opinion it is said: “The bank had notice from the terms of the original bond that it was issued in reliance upon statements and representations made on its behalf to the surety" }, { "docid": "22952069", "title": "", "text": "or failure he-would immediately notify the defendant, in writing, of that fact. He-failed to fulfill this condition precedent to the liability of the company. That company was the surety of the contractor. If a condition of the liability of a surety known to the obligee is not complied' with, the surety is discharged. Rice v. Fidelity & Deposit Co., 103 Fed. 427, 432, 433, 43 C. C. A. 270, 276; 2 Brandt, Sur. § 403; Jones v. Keer, 30 Ga. 93, 95; Cunningham v. Wrenn, 23 Ill. 64, 65; Lynch v. Colegate, 2 Har. & J. 34, 37; Holl v. Hadley, 4 Nev. & M. 515, 520; Bonser v. Cox, 4 Beav. 379, 384; U. S. v. Hillegas, 3 Wash. C. C. 70, 76, Fed. Cas. No. 15,366; Whitcher v. Hall, 5 Barn. & C., 269; Combe v. Woolf, 8 Bing. 156, 161. Again, this bond contains the mutual covenants of the parties— covenants by the surety company that Humphreys, the principal, should construct the building, and keep it free from liens; covenants by the plaintiff that, if Humphreys was unable or failed to perform the contract in the time and manner therein specified, he would immediately notify the surety, and that the latter might then take the contractor’s place. The plaintiff failed to keep his covenant before the surety company had in any way failed to comply with those which it had made. On this account, he cannot enforce the fulfillment of the covenant of the defendant. He who commits the first substantial breach of a contract cannot maintain an action against* the other contracting party for a subsequent failure on his part to perform. Guarantee Co. v. Mechanics’, etc., Co., 183 U. S. 402, 421, 22 Sup. Ct. 124, 46 L. Ed. 253; Imperial Fire Ins. Co. v. Coos Co., 151 U. S. 463, 467, 14 Sup. Ct. 379, 38 L. Ed. 231; Hubbard v. Association, 100 Fed. 719, 40 C. C. A. 665; Seal v. Ins. Co., 59 Neb. 253, 80 N. W. 807; Brady v. Association, 60 Fed. 727, 9 C. C. A. 252; Rice v." }, { "docid": "7860716", "title": "", "text": "in reliance on representations as to tbe desirability of the risk. The contract in this ease expressly negatives such reliance. It provides: “No preliminary application by the employer for this bond is necessary. This contract incorporates tbe entire agreement between insurer and employer, and no statement of facts in any application or other outside writing which might be claimed to be the inducement for making this bond, shall bo allowed in any way to affpet its validity.” By its terms the insurer undertook for a price, and without inducement other than the price, an absolute obligation to guarantee the fidelity of tbe bank’s employees, and to insure tho bank against spoliation by them. It is settled law that such a contract strictly binds tho insurer to compliance with its terms, and that only breaches of conditions in it affecting the very substance of the promise, or proof that the principal knows of' criminal or immoral conduct of an agent which unfits him for tho position which he holds, will release the surety. American Surety Co. v. Pauly, 170 U. S. 151, 18 S. Ct. 552, 42 L. Ed. 977; Guarantee Co. v. Mechanics’ Sav. Bank & Trust Co., 183 U. S. 402, 22 S. Ct. 124, 46 L. Ed. 253; Fidelity & Deposit Co. v. Courtney, 186 U. S. 342, 22 S. Ct. 833, 46 L. Ed. 1193; United States F. & G. Co. v. Walker (C. C. A.) 248 F. 42, 44; Globe Indemnity Co. v. Union & Planters’ Bank & Trust Co. (C. C. A.) 27 F.(2d) 496, 497; American Surety Co. v. Shaw (C. C. A.) 54 F.(2d) 550; American Surety Co. v. Bankers’ Sav. & Loan Ass’n (C. C. A.) 59 F.(2d) 577. These authorities, establish that, when a contract like this has-been made by a compensated surety, its protective force cannot bo frittered away by general claims like those in this case, that fair dealing required tbe bank to be alert to discover the- infidelity of those whose fidelity the insurer had guaranteed, claims, in short, that the price to the bank for tbe protection" }, { "docid": "13967386", "title": "", "text": "incurred. Guarantee Co. v. Mechanics, etc., Co., 183 U. S. 402, 22 Sup. Ct. 124, 46 L. Ed. 253; Fidelity & Deposit Co. v. Courtney, 186 U. S. 342, 22 Sup. Ct. 833, 46 L. Ed. 1193. 3. It is not fairly questionable that the statement in reference to the cashier that “he is not now in default” was one of a fact material to-the contemplated undertaking of the surety company. Max J. Winkler Brokerage Co. v. Fidelity & Deposit Co., 119 La. 735, 44 South. 449. The terms of its undertaking were such as to make the truth of that statement a condition precedent to the right on the part of the obligee to recover on the renewals of the bond. As the evidence without conflict showed that the quoted statement was false, the court did not err in ruling that the plaintiff was not entitled to recover for shortages which occurred during the periods covered by the renewals of the bond. The evidence disclosed a state of facts under which, by the explicit terms of the renewal agreements, the surety company was not to be liable for shortages occurring during the periods covered by the renewals. In the course of the argument in behalf of the plaintiff in error attention was called to a number of decisions with reference to contracts-not based on statements warranted to be true. Those decisions are not pertinent to the question presented in the instant case, which is a suit on contracts based on statements warranted to be true, but which turned out to be false. Affirmed." }, { "docid": "22551808", "title": "", "text": "in suit. \"What therefore Collins assumed in his capacity as president to certify as to O’Brien’s fidelity or integrity, was not in the course of the business of the bank nor within any authority he possessed. He could not create - such authority by simply assuming to have it.' The Circuit Court of Appeals, speaking- by Judge Lacombe, well said that there were many acts which the president of a bank may do without express authority of the board of directors, in some cases because the usage of the particular bank impliedly authorized them, in other cases because such acts were fairly within, the ordinary routine of his business as president; but that the making of a statement, as to the honesty and fidelity of an employe for the benefit of the employe, and to enable the latter to obtain a bond insuring his fidelity, was no part of the ordinary routine business of a bank president, and there was nothing to show that \"by any usage of this particular bank such function was committed to its president. It must therefore be taken, as between the bank and the company, that the former cannot be deemed, merely by reason of Collins’ relation to it, to have had constructive notice that he as president gave the certificate in question. ' The presumption that the agent informed his principal of that which his duty and the interests of his principal required him to communicate does not arise where the agent acts or makes declarations not in execution pf any duty that'he owes to the principal, nor within any authority possessed by him, but to subserve simply his own personal ends or to commit some fraud against the principal. In such cases the -principal is not bound by the acts or .declarations of the agent unless it be proved that he had at the time actual notice of them, or. having received notice of them, failed to disavow what was assumed to be said and done in his behalf. In Henry v. Allen, 151 N. Y. 1, 10, the court recognized the general" }, { "docid": "13967385", "title": "", "text": "those subsequent statements was false in its assertion, with reference to McKinzie, that “he is not now in default.” The bank had notice from the terms of the original bond that it was issued in reliance upon statements made in its behalf to the surety company, and that, in the ordinary course, renewals, which the terms of the bond showed were in contemplation, might also be based upon further statements to be made on behalf of the bank. In view of these circumstances, and of the additional one that each continuation-certificate expressly made the obligation it evidenced subject to the covenants and conditions of the original bond, one of the provisions of which was a warranty of the truth of the statement specifically referred to in the bond and of any subsequent statement, there is no room for holding the surety company bound by a continuation certificate issued on the faith of a statement which was warranted to be true, but was false in a respect material to the obligation which the surety company conditionallv incurred. Guarantee Co. v. Mechanics, etc., Co., 183 U. S. 402, 22 Sup. Ct. 124, 46 L. Ed. 253; Fidelity & Deposit Co. v. Courtney, 186 U. S. 342, 22 Sup. Ct. 833, 46 L. Ed. 1193. 3. It is not fairly questionable that the statement in reference to the cashier that “he is not now in default” was one of a fact material to-the contemplated undertaking of the surety company. Max J. Winkler Brokerage Co. v. Fidelity & Deposit Co., 119 La. 735, 44 South. 449. The terms of its undertaking were such as to make the truth of that statement a condition precedent to the right on the part of the obligee to recover on the renewals of the bond. As the evidence without conflict showed that the quoted statement was false, the court did not err in ruling that the plaintiff was not entitled to recover for shortages which occurred during the periods covered by the renewals of the bond. The evidence disclosed a state of facts under which, by the explicit" }, { "docid": "4523658", "title": "", "text": "a fact which it was his duty to declare, and not to his interest to conceal, then his knowledge is to be treated as that of the bank. For he is then presumed to have done what he ought to have done, and to have actually given the information to his principal. “But if the fact of his own insolvency and of his personal indebtedness to the Nashville bank were matters which it was to his interest to conceal, the law does not by a fiction eharge the Macon bank, of which he was president, with notice of facts which the agent not only did not disclose, but which he was interested in concealing.” Of course when the agent is committing a fraud entirely for his own benefit and not for the principal’s benefit, the principal should not have imputed to him knowledge of the agent’s acts, for the agent, when committing a fraud solely for his own benefit, is not acting within the scope of his authority. The real test as to whether the principal is presumed to have the knowledge which his agent has is whether the agent has stepped out of his position as agent and is acting entirely for himself to subserve his own interest, and not the interest of the principal. On the subject of exceptions to the general rule of imputed knowledge to the principal of what the agent knows, see Curtis, Collins & Holbrook Company v. United States, 262 U. S. 215, 43 S. Ct. 570, 67 L. Ed. 956; John W. Ladd Co. v. New York Cent. R. Co., 249 Mich. 450, 229 N. W. 517; School Dist. of City of Sedalia, Mo., v. De Weese (C. C.) 100 F. 705; Lilly et al. v. Hamilton Bank of New York (C. C. A.) 178 F. 53, 29 L. R. A. (N. S.) 558; Hilliard v. Lyons (C. C. A.) 180 F. 685; Kean et al. v. National City Bank (C. C. A.) 294 F. 214; Dixie Guano Co. v. Wessel et al. (C. C. A.) 296 F. 433. What is the situation" }, { "docid": "4523653", "title": "", "text": "charged with Olson’s acts would necessarily indicate that the same doetrine should be applied to the-second transaction. In the latter, however, there is an additional question of ultra vires, which will hereinafter be discussed. It-is the receiver’s theory that knowledge of Olson’s embezzlement was not imputable to the bank, that the bank did not profit thereby, that Olson was acting entirely for himself and his own benefit, and that the Rood estate holds the stolen funds of the Schneider estate in trust for it. What is the law applicable here? The rule is elementary that the principal is bound by the knowledge of his agent acquired in the course of the principal’s business and while acting within the scope of his authority. The Distilled Spirits, 11 Wall. 356, 20 L. Ed. 167; Curtis, Collins & Holbrook Co. v. United States, 262 U. S. 215, 43 S. Ct. 570, 67 L. Ed. 956. The receiver relies on an exception to this rule which is well stated in 7 Ruling Case Law, p. 657, § 6-59, as follows: “An exception to the general rule that notice to an agent is notice to his principal arises in case of such conduct of the agent as raises a clear presumption that he would not communicate the fact in controversy, as where the agent acts for himself in his own inter- ‘ est and adversely to that of the principal;, and this rule is applied to officers and agents of a corporation. So where a corporate officer or agent is engaged in committing an independent fraud on his own account and the facts to he imputed relate to this fraudulent act, the corporation is not charged with the knowledge of the officer or agent.” This exception to the general rule is well established. In Thomson-Houston Electric Co. v. Capitol Electric Co. (C. C. A.) 65 F. 341, 343, in discussing the general rule that the principal ordinarily is charged with notice of what the agent knows in a matter ' intrusted to him, the court says: “Such a presumption cannot be indulged, however, where the" }, { "docid": "5449437", "title": "", "text": "accomplishing the result complained of, and if, 'in so doing, he was acting within the scope of his authority,, this would be made the predicate of liability, whether he was fraudulent or not, or whether or not he had personal ends to subserve. If he had stepped aside from his capacity as agent, and was dealing adversely with his principal, it would make no difference whether he was the sole actor or not. ^ Thus, in the rase of Thomson-Houston Electric Co. v. Capitol Electric Co., supra, the agent, although apparently a sole actor, had deserted his position as agent, and notice of his fraud was not imputed to the principal. The same may be said of the case of Bank of Overton v. Thompson, 118 Fed. 798, 56 C. C. A. 554 (C. C. A. 8), which also was a case where the cashier of the bank was the sole actor in a fraudulent transaction, but the “sole actor” doctrine was disapproved, and, because, of the adverse fraudülent interest of the agent, notice-was not imputed to the bank. In Bank v. Lovitt, 114 Mo. 519, 21 S. W. 825, the court said: “An officer of a banking corporation has a perfect right to transact his own business at the bank of which he is an officer, and in such a transaction his interest is adverse to the hank, and. he represents himself, and not the bank. The law is well settled that, when an officer of a corporation is dealing with it in his individual interest, the corporation is not chargeable with his uncom-municflted knowledge of facts derogatory to his title to the property which is the subject of the transaction.” And this is perhaps the true basis of the court’s decision in American National Bank v. Miller, 229 U. S. 517, 33 Sup. Ct. 883, 57 L. Ed. 1310, where it was not clear as to whether Plant, the president of the bank of deposit, was the sole actor or not. See Curtis, Collins & Holbrook Co. v. United States, 262 U. S. 215, 43 Sup. Ct. 570," }, { "docid": "14667168", "title": "", "text": "authorized to pay out of the cash in his custody any amount on your account? A. (a) Yes, by check of president and treasurer, (b) In what manner is such authority given? (b) By the trustees. * * * Q. 10. (a) How often and to whom will he remit or pay over the money received? A. (a) When ordered by the trustees.” The statutes of the state of Washington relative to private corporations prescribe that all corporate control and management shall be vested in and be exercised by a board of trustees. 1 Ballinger’s Ann. Codes & St. Wash. § 4255. In the light of these undisputed facts, we are of opinion that the knowledge of a single officer or trustee or the president cannot be imputed to the corporation, unless it is affirmatively shown that his knowledge was brought home to the board of trustees. The principles of law applicable to the facts of this case upon the point under discussion are so fully stated in Fidelity & Deposit Co. v. Courtney, 186 U. S. 343, 360, 33 Sup. Ct. 833, 46 L. Ed. 1193, that we quote at length therefrom: “It Is well settled that, in the absence of express agreement, the surety on a bond given to a corporation, conditioned for the faithful performance by an employé of his duties, is not relieved from liability for a loss within the condition of the bond by reason of the laches or neglect of the board of directors, not amounting to fraud or bad faith, and that the acts of ordinary agents or employés of the indemnified corporation, conniving at or co-operating with the wrongful act of the bonded employé, will not be imputed to the corporation. United States v. Kirkpatrick (1824) 9 Wheat. 720, 736 [6 L. Ed. 199]; Minor v. Mechanics’ Bank (1828) 1 Pet. 46 [7 L. Ed. 47]; Taylor v. Bank of Kentucky (1829) 2 J. J. Marsh. (Ky.) 564; Amherst Bank v. Root (1841) 2 Metc. (Mass.) 522; Louisiana State Bank v. Ledoux (1848) 3 La. Ann. 674; Pittsburg, Fort Wayne & Chicago" }, { "docid": "9498964", "title": "", "text": "has applied to the American Surety Co. for the grant by it of this bond,” and defendant put in evidence the application on which it was granted. It is to be assumed, as the trial judge held, that the officers of the defendant relied upon the representations contained in the application. This application, which is filled up on a printed form furnished by the company, contains various statements of O’Brien personally, mainly in answer to questions. On one of its pages there also appears what is described as an “employer’s certificate.” No such certificate was required as a preliminary to the granting of the bond insuring Collins’ fidelity. And there is nothing to show that the bank, or any of its officers except Collins, had any information that a certificate by any one as to the good character of O’Brien was asked for by the surety company as a prerequisite to the issue of its policy of insurance, which does not, on its face, incorporate the application as a, condition of the contract nor in any way refer to the same. The so-called “employer’s certificate” reads as follows: \"L have read 1he foregoing declarations and answers made by George N. O'Brien, and believe them to be true. He has been in the employ of this bank during three (3) years, and to the best of my knowledge has always performed his duties in a faithful and satisfactory maimer. His accounts were last examined on the 28th day of March, 1891, and found correct in (very respect. He is not, to my knowledge, at present in arrears or in default. I know nothing of his habits or antecedents affecting his title to general confidence, or why the bond he applies for should not be granted to him. “Amount required, $16,000.00. Bond to date from July 1, 1891. “Dated at San Diego, the 10th day of July, 1891. “J. W. Collins, Pt. Cal. Nat. Bk. “On behalf of--.” It is contended that the knowledge which Collins had as to O’Brien’s dishonesty was the knowledge of the hank, and that his act in" }, { "docid": "7860717", "title": "", "text": "v. Pauly, 170 U. S. 151, 18 S. Ct. 552, 42 L. Ed. 977; Guarantee Co. v. Mechanics’ Sav. Bank & Trust Co., 183 U. S. 402, 22 S. Ct. 124, 46 L. Ed. 253; Fidelity & Deposit Co. v. Courtney, 186 U. S. 342, 22 S. Ct. 833, 46 L. Ed. 1193; United States F. & G. Co. v. Walker (C. C. A.) 248 F. 42, 44; Globe Indemnity Co. v. Union & Planters’ Bank & Trust Co. (C. C. A.) 27 F.(2d) 496, 497; American Surety Co. v. Shaw (C. C. A.) 54 F.(2d) 550; American Surety Co. v. Bankers’ Sav. & Loan Ass’n (C. C. A.) 59 F.(2d) 577. These authorities, establish that, when a contract like this has-been made by a compensated surety, its protective force cannot bo frittered away by general claims like those in this case, that fair dealing required tbe bank to be alert to discover the- infidelity of those whose fidelity the insurer had guaranteed, claims, in short, that the price to the bank for tbe protection it had purchased was not only the premiums, but constant, sleepless vigilance to prevent loss to the surety. They make it clear that neither negligence nor inattention, nor any failure to- discover what by diligence might have been discovered, nothing, in fact, short of actual discovery by the bank of dishonesty or a positive breach of an imperative condition, will defeat claims for loss caused by that dishonesty, unless it is otherwise provided in the contract. Appellant urges that the contract does otherwise provide by clauses 3 and 4. We turn to a consideration of those clauses. Clause 3, a notice clause, provides that, upon discovery by the employer of any loss insured under the contract, the employer shall within ten days thereafter give notice, and within three months thereafter file its written claim. We need not ,eoneem ourselves here with whether this provision is to be construed as a covenant merely, or as a condition precedent to liability; whether its breach would operate, though the contract does not in terms so provide, to release" }, { "docid": "22551806", "title": "", "text": "Story on Agency, § 140, in which the author says that “notice of facts to an agent is constructive notice thereof.- to the principal' himself, where it arises from or is,at the time connected with the subject-matter of his agency; for, upon general principles of public policy, it is presumed that the agent has communicated such facts to the principal; and.if he -has notj still the principal having entrusted' the agent with the particular business, the other party has a right :to deem his acts and knowledge obligatory upon the principal; otherwise, the neglect of the agent, whether designed or undesigned, might operate most injuriously to the rights \"and interests of .such party.” Without stopping to consider whether each of the above cases was ■ correctly decided, it may be observed that those relating to sureties in bonds given to - corporations arose directly between the sureties and corporations represented by their boards of directors or by some of their officers acting within the authority conferred ■ upon them /• and that those relating to the liability, of a principal by-reason of the acts or -representations of his agent, arose out of the agent’s acts or declarations in the course of the business entrusted to him. None of the cases cited embrace the present one. In the first place, the procuring of a bond for O’Brienj in order that he might become qualified to act as cashier, was no part of the business of' the bank nor within the scope of any duty - imposed upon Collins as president of the. bank. It was the business of O’Brien to obtain and present an acceptable bond. And it was for the bank, by its constituted authorities, to accept or reject the bond so presented. The bank did not authorize Collins to give, nor was it aware that he gave, nor was he entitled by virtue of his office as president to sign, any certificate as to the efficiency, fidelity or integrity of O’Brien. No. relations existed between the bank and the Surety Company until O’Brien presented do the former the bond" }, { "docid": "22551779", "title": "", "text": "the grand jury and testified as to the state of facts that existed implicating G. N. O’Brien in the defalcations with J. W. Collins. What action the grand jury will take has not yet transpired. Trusting that these statements will meet your requirements, I am, etc.” Other letters passed between the receiver and the company, in respect to which it is only necessary to observe that the company retained the proofs of loás sent to it without objecting that they did not sufficiently indicate the nature and extent of the claim made by the receiver. Finally, the receiver, writing to the vice president of the company, under date of September 21, 1892, said: “ There has been so much delay in‘this matter that. I have placed it, under the direction of the Comptroller, in the hands of the U. S. Attorney in New York, Edward Mitchell, Esq., with instructions to collect the same.” The company in reply expressed their gratification that when taking up the matter finally it could deal with the United States in New York on the merits of the case. In the light of the facts, as above stated, we come to the consideration of the controlling questions- of law presented for \"determination. These questions depend largely upon the interpretation to be given to the provisions of the bond in suit. If, looking at all its provisions, the bond is fairly and reasonably susceptible of two constructions, one favorable to the bank and the ether favorable to the Surety Company, the former, if consistent with the objects for which the bond was given, must be adopted, and this for the reason that the instrument which the court is invited to interpret was drawn by the attorneys, officers or agents of the Surety Company. This is a well established rule in the law of insurance. National Bank v. Insurance Co., 95 U. S. 673; Western Ins. Co. v. Cropper, 32 Penn. St. 351, 355; Reynolds v. Commerce Fire Ins. Co., 47 N. Y. 597, 604; Travellers' Ins. Co. v. McConkey, 127 U. S. 661, 666; Fowkes v. Manchester" }, { "docid": "14667169", "title": "", "text": "U. S. 343, 360, 33 Sup. Ct. 833, 46 L. Ed. 1193, that we quote at length therefrom: “It Is well settled that, in the absence of express agreement, the surety on a bond given to a corporation, conditioned for the faithful performance by an employé of his duties, is not relieved from liability for a loss within the condition of the bond by reason of the laches or neglect of the board of directors, not amounting to fraud or bad faith, and that the acts of ordinary agents or employés of the indemnified corporation, conniving at or co-operating with the wrongful act of the bonded employé, will not be imputed to the corporation. United States v. Kirkpatrick (1824) 9 Wheat. 720, 736 [6 L. Ed. 199]; Minor v. Mechanics’ Bank (1828) 1 Pet. 46 [7 L. Ed. 47]; Taylor v. Bank of Kentucky (1829) 2 J. J. Marsh. (Ky.) 564; Amherst Bank v. Root (1841) 2 Metc. (Mass.) 522; Louisiana State Bank v. Ledoux (1848) 3 La. Ann. 674; Pittsburg, Fort Wayne & Chicago Ry. Co. v. Shaeffer (1868) 59 Pa. 350, 356; Atlas Bank v. Brownell (1869) 9 R. I. 168 [11 Am. Rep. 231]. The doctrine of these cases is thus epitomized in 59 Pa. 357: “ ‘Corporations can act only by officers and agents. They do not guaranty to the sureties of one officer the fidelity of the others. The rules and regulations which they may establish in regard to periodical returns and payments are for their own security, and not for the benefit of the sureties. The sureties, by executing the bond, became responsible for the fidelity of their principal. It is no collateral engagement into which they enter, dependent on some contingency or condition different from the engagement of their principal. They become joint obligors with him in the same bond, and with the same condition underwritten. The fact that there were other unfaithful officers and agents of the corporation, who’ knew and connived at his infidelity, ought not in reason, and does not in law or equity, relieve them from their responsibility for" }, { "docid": "9498963", "title": "", "text": "contended that the court erred in refusing to direct a verdict for the defendant on the ground that the bond had been procured by misrepresentation and concealment on the part of the bank. Plaintiff in error also excepted to so much of the charge as instructed the jury that there was nothing to that defense. There was evidence that prior to the execution of the bond O’Brien had, by acts of fraud and dishonesty, assisted Collins in obtaining false credits, and thus getting possession of money which rightfully belonged to the bank. At the time when O’Brien made application for the bond in suit, Oollins also made application for a similar bond insuring his (Collins’) honesty and fidelity, and obtained one for $25,000. How it came; about that these two bonds were asked for, — whether it was a suggestion of Collins, or whether any by-law or resol ution of the board of directors required security to be given, — -does not appear. The bond in suit recites that the “emplové [O’Brien] * * * has applied to the American Surety Co. for the grant by it of this bond,” and defendant put in evidence the application on which it was granted. It is to be assumed, as the trial judge held, that the officers of the defendant relied upon the representations contained in the application. This application, which is filled up on a printed form furnished by the company, contains various statements of O’Brien personally, mainly in answer to questions. On one of its pages there also appears what is described as an “employer’s certificate.” No such certificate was required as a preliminary to the granting of the bond insuring Collins’ fidelity. And there is nothing to show that the bank, or any of its officers except Collins, had any information that a certificate by any one as to the good character of O’Brien was asked for by the surety company as a prerequisite to the issue of its policy of insurance, which does not, on its face, incorporate the application as a, condition of the contract nor in" }, { "docid": "22551807", "title": "", "text": "the liability, of a principal by-reason of the acts or -representations of his agent, arose out of the agent’s acts or declarations in the course of the business entrusted to him. None of the cases cited embrace the present one. In the first place, the procuring of a bond for O’Brienj in order that he might become qualified to act as cashier, was no part of the business of' the bank nor within the scope of any duty - imposed upon Collins as president of the. bank. It was the business of O’Brien to obtain and present an acceptable bond. And it was for the bank, by its constituted authorities, to accept or reject the bond so presented. The bank did not authorize Collins to give, nor was it aware that he gave, nor was he entitled by virtue of his office as president to sign, any certificate as to the efficiency, fidelity or integrity of O’Brien. No. relations existed between the bank and the Surety Company until O’Brien presented do the former the bond in suit. \"What therefore Collins assumed in his capacity as president to certify as to O’Brien’s fidelity or integrity, was not in the course of the business of the bank nor within any authority he possessed. He could not create - such authority by simply assuming to have it.' The Circuit Court of Appeals, speaking- by Judge Lacombe, well said that there were many acts which the president of a bank may do without express authority of the board of directors, in some cases because the usage of the particular bank impliedly authorized them, in other cases because such acts were fairly within, the ordinary routine of his business as president; but that the making of a statement, as to the honesty and fidelity of an employe for the benefit of the employe, and to enable the latter to obtain a bond insuring his fidelity, was no part of the ordinary routine business of a bank president, and there was nothing to show that \"by any usage of this particular bank such function was committed" }, { "docid": "21528914", "title": "", "text": "to $900 which Morse deposited at once in a bank out of what Taggerty gave him. The referee and the judge held that the hotel was not a bona fide purchaser for value and gave a decree for the whole sum against the trustee, who appealed. That the hotel was a purchaser for value there can be no doubt. State Nat. Bank v. United States, 114 U. S. 401, 5 S. Ct. 888, 29 L. Ed. 149; Holly v. Missionary Society, 180 U. S. 284, 21 S. Ct. 395, 45 L. Ed. 531; Stephens v. Board of Education, 79 N. Y. 183, 35 Am. Rep. 511; Hatch v. National Bank, 147 N. Y. 184, 41 N. E. 403. It received the money in discharge of a debt from Taggerty, which was good consideration. The only question is whether it was also a bona fide purchaser. As to the $1,500 which Taggerty put in his own till, it was not. In depositing the money he acted as the hotel’s agent, and the hotel had notice of the theft because he knew it himself. The trustee answers that while this would be true if Taggerty had not had an interest adverse to the hotel, the doctrine does not apply because he had such an interest. It is true that án agent is as little likely to tell his principal that he is putting back money embezzled from him with money stolen from another, as he is to tell him anything relevant to frauds which he is at the moment actually committing upon the principal. But the current rationalization of the imputation of the agent’s knowledge is the plainest kind of fiction anyway, and would not stand for a moment to-day, were it not for the illustrious names behind it; it has nothing to commend it in theory and has been a good deal limited in application. Be that as it may, it is settled that the principal is not a bona fide purchaser, when his agent makes restitution with money or negotiable securities wrongfully taken from another. That is as far as" }, { "docid": "22952060", "title": "", "text": "acts in its fulfillment, and to impose upon the latter the absolute obligation to perform it. Nothing less than full performance satisfies the undertaking. The obligation of a promise or of a covenant to pay a debt or to do an act is not to use ordinary care to comply with the terms of the agreement, but it is to perform it; and, in an action for its breach, it is not material what care the obligor used, or what negligence he was guilty of, in his endeavor to fulfill it. The only question is, did he perform his contract? Guarantee Co. v. Mechanics’, etc., Co., 183 U. S. 402, 421, 422, 22 Sup. Ct. 124, 46 L. Ed. 253. The covenant of the plaintiff in the case under consideration was to immediately notify the surety company of any failure or inability of the contractor to construct and complete the building at the time and in the manner specified in the contract, and the question was not whether or not, although he failed to give the notice, he had exercised ordinary care to do so, but whether or not he had actually given the notice immediately upon the appearance of the known inability and failure of the contractor to perform his agreement. The circuit court fell into an error when it instructed the jury that the care or negligence of the plaintiff conditioned his right to recover here. By the stipulation in the contract between Humphreys and the plaintiff which has been set forth above, the contractor agreed “to complete said building by the first day of September, 1901,” and that if he failed to complete it by September 15, 1901,'he would pay to the plaintiff damages to the amount of $5 for every day from that time until the building was finished. The former date was clearly the time fixed for the completion of the performance of the contract, while the latter was the stipulated day from' which the time that measured the liquidated damages which the contractor agreed to pay in case he failed to finish the building" }, { "docid": "4523656", "title": "", "text": "disclose to his principal all notice to himself necessary to his principal’s protection or guidance. The officer of a corporation, like. a cashier of a bank, is such agent. There are, however, well-settled exceptions to this rule, where notice or knowledge on the part of the agent will not be imputed to the principal, and one of these is ‘where the agent’s relations to the subject-matter, or his previous conduct, render it certain that he will not disclose it.’ Meehem, Ag. § 721. ‘In such cases the presumption is that the agent will conceal any fact which might be detrimental to his own interests, rather than that he will disclose it.’ ” In American Surety Co. v. Pauly, 170 U. S. 133, 156, 157, 18 S. Ct. 552, 561, 42 L. Ed. 977, the court said: “The presumption that the agent informed his principal of that -which his duty and the interests of his principal required him to communicate does not arise where the agent acts or makes declarations not in execution of any duty that he owes to the principal, nor within any authority possessed by him, but to subserve simply his own personal ends, or to commit some fraud against the principal. In such cases the principal is not bound by the acts or declarations of the agent unless it be proved that he had at the time actual notice of them, or, having received notice of them, failed to disavow what was assumed to be said and done in his behalf.” In American National Bank of Nashville, Tennessee, v. Miller, Agent of the First National Bank of Macon, Georgia, 229 U. S.. 517, 521, 522, 33 S. Ct. 883, 884, 57 L. Ed. 1310, the Supreme Court said: “This presents another phase of the oft-recurring question as to when and how far notice to an agent is notice to his principal. In view of the many decisions on the subject, it is unnecessary to do more than to apply them to the facts of this case. If Plant, within the scope of his office, had knowledge of" } ]

[ { "docid": "6830495", "title": "", "text": "More importantly, however, we agree with Green that Gomez-Padilla is no longer controlling authority in light of Koon v. United States, 518 U.S. 81, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996). In Koon, the Court specifically stated that a district court cannot be precluded categorically from considering any factor at sentencing so long as that factor is not one of the \"forbidden\" factors outlined in the guidelines. Id. at 2044-45. Three circuit courts, post-Koon, have looked at the question of whether post-sentencing conduct, specifically rehabilitation, may be considered as a basis for departure upon resentencing. See United States v. Rhodes, 145 F.3d 1375 (D.C.Cir.1998); United States v. Core, 125 F.3d 74, 77 (2d Cir.1997), cert. denied, - U.S. , 118 S.Ct. 735, 139 L.Ed.2d 672 (1998); United States v. Sally, 116 F.3d 76, 80 (1997). All held that it was a proper basis for departure. We join our sister circuits. The Second Circuit determined that there was no difference between post-offense rehabilitation and post-sentencing rehabilitation. Core, 125 F.3d at 77. Since the Second Circuit already had determined that post-offense rehabilitation may be a proper basis for departure, it followed that post-sentence rehabilitation may likewise be a proper basis. The court noted that at resentencing, the sentencing court was required to assess the defendant \"as he stood before the court at that time.\" Id. Thus, the court found that it was appropriate for the sentencing court to consider, in its discretion, whether the defendant's post-sentencing rehabilitation merited a downward departure. The Third Circuit's reasoning was similar. See Sally, 116 F.3d at 80 (holding that, \"we find no reason to distinguish between post-offense and post-conviction rehabilitation efforts\"). The D.C. Circuit held that post-sentencing rehabilitation was a proper basis for departure because it was not specifically forbidden by the Sentencing Guidelines. See Rhodes, 145 F.3d at 1379. The court rejected an argument raised by the government in the instant case-that defendants who are granted departures based on post-sentencing behavior receive unfair treatment because they are \"lucky enough\" to be resentenced. Id. at 1381. The court noted that defendants who are resentenced are resentenced" } ]

[ { "docid": "17479652", "title": "", "text": "and United States v. Green, 152 F.3d 1202, 1207 (9th Cir.1998) (same), and United States v. Rhodes, 145 F.3d 1375, 1379 (D.C.Cir.1998) (same), and United States v. Core, 125 F.3d 74, 77-78 (2d Cir.1997) (same), cert. denied, — U.S. -, 118 S.Ct. 735, 139 L.Ed.2d 672 (1998), and United States v. Sally, 116 F.3d 76, 80 (3rd Cir.1997) (same), with United States v. Sims, 174 F.3d 911, 913 (8th Cir.1999) (forbidding downward departure), and Rhodes, 145 F.3d at 1384 (Silberman, J., dissenting). In a recent unpublished decision, a panel of this court raised the issue but decided the matter on other grounds, ruling that because the district court believed it had the authority to depart downward on the basis of post-sentence rehabilitation, this court could not review its decision not to depart. See United States v. Little, No. 98-1164, 1999 WL 426883, at *6 (6th Cir. June 15, 1999) (unpublished). We believe that, given the explication in the Koon opinion, a district court has the discretion to depart downward on the basis of post-sentence rehabilitation. “[T]he [Sentencing] Commission chose to prohibit consideration of only a few factors, and not otherwise limit, as a categorical matter, the considerations which might bear upon the decision to depart.” Koon, 518 U.S. at 94, 116 S.Ct. 2035. Thus, district courts may depart downward because neither the Sentencing Guidelines nor any statute “explicitly bars consideration of post-sentence rehabilitation.” Rhodes, 145 F.3d at 1379. Further, an inconsistency would arise if courts permitted departures for post-offense rehabilitation but prohibited departures for post-sentence rehabilitation. See, e.g., Green, 152 F.3d at 1207. The preceding reasons, bolstered by Koon’s broad sweep, have force, and convince us to follow the Second, Third, Ninth, and D.C. Circuits (and the reasoning expressed in an unpublished decision of the Tenth Circuit), and to hold that a district court may depart downward on the basis of a defendant’s post-sentence rehabilitation. B We pause to address the objections of the government, which mirror those that the Eighth Circuit expressed in its opinion in Sims, 174 F.3d at 913. We recognize that not. every defendant will have" }, { "docid": "17479672", "title": "", "text": "motions made pursuant to 28 U.S.C. § 2255, Green involves an appeal from a resentencing ordered after the defendant's direct appeal, Rhodes involves an appeal after the Supreme Court vacated the defendant's initial sentence, and Sally involves a defendant's direct appeal from his sentence, because Sally moved for a departure based on post-conviction (and pre-sentence) rehabilitation (thus, the holding does not technically concern post-sentence motions, although the tenor of the opinion suggests that the court intends the holding to cover post-sentence conduct). See Sally, 116 F.3d at 80-81. . A corollary: mere recitation of achievements and awards will not often present helpful evidence of rehabilitation. A movant must compare his rehabilitation to that of other defendants, and must explain the import of his accomplishments — the departure does not exist to reward good conduct; rather, it accounts for the rare occasions when a defendant's rehabilitation takes him out of the heartland of the guidelines. . Although this circuit has ruled that, on remand, a district court must conduct sentencing de novo unless this court directs otherwise, a minority view limits the scope of resentencing on remand to the issues relevant to the decision of the appeals court. See, e.g., United States v. Marmolejo, 139 F.3d 528, 531 (5th Cir.), cert. denied, U.S. -, 119 S.Ct. 622, 142 L.Ed.2d 561 (1998). The minority view relies in part on a theory of waiver, however, see United States v. Whren, 111 F.3d 956, 959-60 (D.C.Cir.1997) (adopting the Seventh Circuit's waiver approach), cert. denied, - U.S. -, 118 S.Ct. 1059, 140 L.Ed.2d 120 (1998), that does not apply to motions for departure due to post-sentence rehabilitation. By definition, a defendant cannot raise evidence of post-sentence rehabilitation at his first sentencing hearing; thus, even if a district court may not consider previously-waived issues at resentencings, it may consider motions for departure based on facts not available to the defendant at his first sentencing. . Although Rudolph petitioned for a downward departure, our reasoning would apply to requests by the government for an upward departure due to a defendant’s exceptional or extraordinary post-sentence behavior. . Further," }, { "docid": "17479665", "title": "", "text": "cases). In Rudolph’s case, the district court granted the § 2255 motion to vacate Rudolph’s § 924(c) conviction, and then held a resentencing hearing to impose Rudolph’s new sentence. At the resentenc-ing, the district court ruled that it lacked the discretion to consider Rudolph’s motion for downward departure. We hold that, after a district court grants a motion for relief under § 2255, it may exercise its discretion to entertain during resentencing a motion for downward departure due to post-sentence rehabilitation. Much as a district court conducts de novo resentencing after a general remand, see, e.g., Jennings, 83 F.3d at 151, so too may it choose to broaden the scope of resentencing after it chooses to grant relief pursuant to § 2255. See United States v. Jones, 114 F.3d 896, 897 (9th Cir.1997) (permitting, during resentencing pursuant to § 2255, the re-imposition of a fine on the basis of information developed after sentencing) (“[T]he statute gives district judges wide berth in choosing the proper scope of post-2255 proceedings.”); United States v. Moore, 83 F.3d 1231, 1234-35 (10th Cir.1996) (holding that, upon vacating a sentence pursuant to § 2255, a district court must exercise its discretion to determine the appropriate scope of re-sentencing proceedings). Cf. Pasquarille v. United States, 130 F.3d 1220, 1222 (6th Cir.1997) (permitting the district court to revisit a defendant’s “entire aggregate sentence” composed of a “single comprehensive sentencing plan” when resentenc-ing pursuant to a successful § 2255 motion to vacate). We note that our holding comports with the practice of the Second Circuit, see Core, 125 F.3d at 75, 77 (ruling that the district court had the discretion to consider a motion for a downward departure on the basis of post-sentence rehabilitation) (“When the trial court undertook to resentence [the defendant] after vacating his § 924(c) conviction, it was required to consider him as he stood before the court at that time.”), and the reasoning of the Tenth Circuit as expressed in an unpublished opinion, see Roberts, 1999 WL 13073, at *6 (holding that the district court had the discretion to grant a downward departure for post-sentence" }, { "docid": "15131512", "title": "", "text": "rehabilitation. However, Judge Rakoff concluded, based on the facts in this case, that a departure was not ~ppropriate on any of these grounds individually. The sentencing court specifically recognized its authority to depart solely on the basis of pre-indictment delay, but declined to do so after concluding that such a departure was inappropriate in this case. The sentencing court further stated that although Feliz's request for a downward departure based on extraordinary rehabilitation presented a close question, a departure exclusively on this basis was not warranted in light of all the facts. Such a departure would be within the court's power, since rehabilitation, as we have had occasion to say with regard to a defendant's drug rehabilitation efforts, may justify a downward departure from the sentencing guidelines railge. See United States v. Maier, 975 F.2d 944, 948 (2d Cir.1992). Moreover, post-conviction rehabilitation while in prison-Feliz, the defendant before us, was on parole-may serve as a basis for a downward departure. See United States v. Core, 125 F.3d 74, 75 (2d Cir.1997). In both of the cited cases, we focused on defendant's successful effort to rehabilitate himself by his own actions as removing the case from the heartland of the more typical cases. See id. at 77; Maier, 975 F.2d at 948. The efforts made that may entitle defendant to a downward departure must be shown to be extraordinary, see United States v. Barton, 76 F.3d 499, 503 (2d Cir.1996), for example, after finishing a prior prison term, defendant had joined the U.S. Army and was honorably discharged thereby entitling him, we agreed, to a two-level downward departure for pre-arrest rehabilitation, see United States v. Workman, 80 F.3d 688, 701-02 (2d Cfr.1996). Based on the circumstances in this case, however, the sentencing court found that, although it came \"close,\" Felliz's rehabilitation did not meet this standard. A sentencing court's decision not to depart from the guidelines is only ap-pealable if it is shown that a violation of law occurred, the Guidelines were misapplied, or the refusal to depart was based on the court's mistaken understanding that it was not authorized to" }, { "docid": "4848831", "title": "", "text": "and bound the district judge unless extraordinary circumstances warranted reconsideration. United States v. Aramony, 166 F.3d 655, 662 (4th Cir.1999); United States v. Moored, 38 F.3d 1419, 1421 (6th Cir.1994); see generally Christianson v. Colt Industries Operating Corp., 486 U.S. 800, 817, 108 S.Ct. 2166, 100 L.Ed.2d 811 (1988); United States v. Polland, 56 F.3d 776, 779 (7th Cir.1995). (Were this not the rule, piecemeal appeals would be encouraged.) Nor would she be entitled, again in the absence of extraordinary circumstances, to revisit other aspects of the sentence, grounds for departure, etc.; for they would be outside the scope of the remand. Id. at 777-78; Pearson v. Edgar, 153 F.3d 397, 405 (7th Cir.1998); United States v. Hass, 199 F.3d 749, 752 (5th Cir.1999). But the qualification “in the absence of extraordinary circumstances” is vital. The order of remand did not preclude the judge’s consideration of extraordinary unforeseen events occurring after the original sentencing, events not before us when we remanded the case, to the extent they bore on the sentence. North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969); United States v. Jackson, 181 F.3d 740, 746-47 (6th Cir.1999); United States v. Apple, 962 F.2d 335, 337 (4th Cir.1992); Puente v. United States, 676 F.2d 141, 145 (5th Cir.1982). The district judge may not have understood this clearly' — may have thought, as the defendant argues, that our order of remand prevented her from doing anything but lancing the acceptance of responsibility discount — but in any event she expressed dubiety about the defendant’s claim of “post-sentence rehabilitation,” and rightly so. Although some courts had entertained such claims as a ground for a downward departure before the Sentencing Commission nixed it, e.g., United States v. Maldonado, 242 F.3d 1, 5 (1st Cir.2001); United States v. Cook, 238 F.3d 786, 791 (6th Cir.2001); United States v. Green, 152 F.3d 1202, 1207 (9th Cir.1998); contra, United States v. Sims, 174 F.3d 911, 912 (8th Cir.1999), and the Commission’s new guideline, U.S.S.G. § 5K2.19, is not applicable to our defendant (it took effect on November 1, 2000," }, { "docid": "11607032", "title": "", "text": "for relief under section 2255 only in limited circumstances. See 28 U.S.C. § 2255; see also Addonizio, 442 U.S. at 184, 99 S.Ct. 2235 (noting that in the absence of jurisdictional or constitutional errors, “the scope of collateral attack [under section 2255] has remained far more limited.”). No general authority exists under section 2255 to grant relief simply because of post-sentencing rehabilitative efforts undertaken by an incarcerated prisoner. See Varley v. United States, 1998 WL 903609, at *1 (E.D.N.Y. Dec.17, 1998) (in dismissing habeas motion, holding that section 2255 provided no authority to reduce prisoner’s sentence based on post-conviction rehabilitation); see also Addonizio, 442 U.S. at 184-86, 99 S.Ct. 2235. The Court notes, however, that some cases permit consideration of post-conviction rehabilitative efforts when a court is resentencing a defendant. See, e.g., United States v. Sally, 116 F.3d 76, 81 (3d Cir.1997) (holding that “extraordinary post-conviction rehabilitative efforts” may serve “as a basis for a downward departure.”); United States v. Maier, 975 F.2d 944, 948 (2d Cir.1992) (same). This line of cases does not, however, extend to situations in which the only ground on which a reduction in sentence is requested is the rehabilitation itself. United States v. Gallagher, 1998 WL 42282, at *4-*5 (E.D.Pa. Jan.9, 1998) (“It is only on the occasion of initial sentencing, or of resen-tencing for other reasons, that Sally allows the court to consider post-conviction rehabilitation in support of a motion for a downward departure from the Guidelines. The rehabilitation does not, in itself, provide grounds for resentencing.”). In the present case, no independent grounds for resentencing exist; petitioner instead asks this Court to view his rehabilitative efforts as an independent basis for a reduction of his sentence. For that reason, the Court must deny petitioner’s motion for a writ of habeas corpus under 28 U.S.C. § 2255. III. Conclusion For the foregoing reasons, Petitioner’s claim pursuant to 28 U.S.C. § 2255 is DENIED and DISMISSED. IT IS SO ORDERED. . The Court initially notes that while petitioner waived his right to appeal from the judgment of conviction that resulted from his guilty plea, he" }, { "docid": "22878471", "title": "", "text": "appeal, Sally presents two arguments. First, he asserts that the district court incorrectly concluded that it lacked the discretion to grant a downward departure under § 5H1.1 based on his age. Second, he contends that the facts of his case are extraordinary enough to warrant using his age as a factor to support a downward departure. Before oral argument, we asked the parties to address a third issue: namely, whether post-conviction rehabilitation is an appropriate basis for a downward departure. We review the question of whether the district court had the authority to depart downward based on the factor of age under an abuse of discretion standard. See United States v. Romualdi 101 F.3d 971, 973 (3d Cir.1996) (“[A] district court by definition abuses its discretion when it makes an error of law.” ) (quoting Koon, - U.S. at-, 116 S.Ct. at 2047). In contrast, we lack jurisdiction to review a refusal to depart downward “when the district court, knowing it may do so, nonetheless determines that departure is not warranted.” United States v. McQuilkin, 97 F.3d 723, 729 (3d Cir.1996) (citations omitted). III. In § 5H1.1, the Sentencing Commission has foreclosed departures based on age in all but the most extraordinary cases. The section states in pertinent part: Age (including youth) is not ordinarily relevant in determining whether a sentence should be outside the applicable guideline range. Age may be a reason to impose a sentence below the applicable guideline range when the defendant is elderly and infirm and where a form of punishment such as home confinement might be equally efficient as and less costly than incarceration. We have held previously that § 5H1.1 prohibits departures based on age “except in extraordinary circumstances.” United States v. Shoupe, 929 F.2d 116, 120 (3d Cir.1991); accord United States v. Higgins, 967 F.2d 841, 846-46 (3d Cir.1992) (“The language of the guideline policy statements indicates that only when any one of [the factors not ‘ordinarily relevant’] can be characterized as extraordinary does the district court have discretion to depart from the guideline’s sentencing range.”). These precedents are consistent with the approach" }, { "docid": "17479649", "title": "", "text": "downward departure based on Rudolph’s alleged rehabilitation in prison. The court ruled that it lacked the legal authority to depart downward on the basis of post-sentence rehabilitation. Next, the district court considered the sentence enhancement and agreed with the government. The court resentenced Rudolph on counts one and two, calculating a new offense level of 24 (paired with Rudolph’s criminal history category of V). It sentenced Rudolph to 92 months in prison (from a range of 92 to 115 months). We turn to the merits of Rudolph’s timely appeal. II. Rudolph’s Motion for a Downward Departure on the Basis of Post-Sentence Rehabilitation A In its opinion in Koon v. United States, 518 U.S. 81, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996), the Supreme Court listed several questions that a sentencing court should ask when considering a departure from the calculated guidelines range. If a court believes that a feature of a case potentially takes it outside the “heartland” of the Guidelines, the court should determine whether the Sentencing Commission has forbidden, encouraged, or discouraged departures on the basis of the feature, or whether the Guidelines do not even mention the feature. See id. at 95-96, 116 S.Ct. 2035. During the resentenc-ing hearing, Rudolph petitioned for a downward departure from the sentencing guidelines range, alleging that he had rehabilitated himself in prison since his conviction and sentence. The district court refused, expressing its belief that it lacked the discretion to depart downward on the basis of Rudolph’s alleged post-sentence rehabilitation: “Well, I don’t think I have discretion here.... I see no basis for a downward departure.” Unless a district court mistakenly believes that it lacks the legal authority to depart below the guidelines range, this court may not review a district court’s decision not to depart. See, e.g., United States v. Landers, 39 F.3d 643, 649 (6th Cir.1994). We hold that the district court erred, however, and that it had the legal authority to depart below the guidelines range on the basis of a defendant’s post-sentence rehabilitation. Rudolph’s appeal raises the question of whether a district court has the discretion to" }, { "docid": "4864", "title": "", "text": "MORRIS S. ARNOLD, Circuit Judge. Roosevelt Sims, III, was convicted and sentenced in 1993 on charges of possession with intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1), § 841(b)(1)(A), and use of a firearm in relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c). He was sentenced to 324 months imprisonment. In 1998, in response to a motion under 28 U.S.C. § 2255, the district court dismissed Mr. Sims’s § 924(c) conviction in light of Bailey v. United States, 516 U.S. 137, 116 S.Ct. 501, 133 L.Ed,2d 472 (1995), vacated Mr. Sims’s original sentence, and resentenced him to 292 months imprisonment. Mr. Sims appeals the resentencing, and we affirm the judgment of the district court. I. At the resentencing hearing, Mr. Sims asked the district court to consider a downward departure from the recommended sentencing range based on the extraordinary efforts at rehabilitation that he asserts he has made in prison since his original sentencing five years ago. The district court refused Mr. Sims’s request because it believed that it lacked the authority to consider post-sentencing rehabilitation as a basis for downward departure. On appeal, Mr. Sims contends that the district court erred in refusing his request. We have held that a defendant's post-offense rehabilitative conduct-that is, conduct from arrest up to the time of the sentencing-can, if sufficiently atypical, furnish an appropriate basis for downward departure. United States v. Kapitzke, 180 F.3d 820, 822-24 (8th Cir.1997). Mr. Sims now asks us to extend this holding to permit downward departures based on post-sentencing rehabilitative conduct, as well-that is, rehabilitation that takes place behind the prison walls during the period between the original sentencing and a resentencing. In support of his position, Mr. Sims directs our attention to cases from other circuits that hold that post-sentencing re-habffitation can indeed provide an appropriate basis for a downward departure at a resentencing. See United States v. Green, 152 F.3d 1202, 1207-08 (9th Cir.1998) (per curiam); United States v. Rhodes, 145 F.3d 1375, 1377-82 (D.C.Cir.1998); and United States v. Core, 125 F.3d 74, 76-79 (2d Cir.1997), cert." }, { "docid": "17479650", "title": "", "text": "on the basis of the feature, or whether the Guidelines do not even mention the feature. See id. at 95-96, 116 S.Ct. 2035. During the resentenc-ing hearing, Rudolph petitioned for a downward departure from the sentencing guidelines range, alleging that he had rehabilitated himself in prison since his conviction and sentence. The district court refused, expressing its belief that it lacked the discretion to depart downward on the basis of Rudolph’s alleged post-sentence rehabilitation: “Well, I don’t think I have discretion here.... I see no basis for a downward departure.” Unless a district court mistakenly believes that it lacks the legal authority to depart below the guidelines range, this court may not review a district court’s decision not to depart. See, e.g., United States v. Landers, 39 F.3d 643, 649 (6th Cir.1994). We hold that the district court erred, however, and that it had the legal authority to depart below the guidelines range on the basis of a defendant’s post-sentence rehabilitation. Rudolph’s appeal raises the question of whether a district court has the discretion to depart downward on the basis of a defendant’s rehabilitative efforts made after the defendant received his initial sentence. Defendants may engage in rehabilitative efforts at several stages: post-offense, post-arrest, post-conviction, and post-sentence. Most courts condense the possibilities into two categories: “post-offense,” referring to efforts made before sentencing, and “post-sentencing” (occasionally referred to as “post-conviction”), referring to efforts made after sentencing. Especially in light of the Supreme Court’s decision in Koon, the circuit courts of appeal that have considered the matter have permitted downward departures for post-offense rehabilitation. See, e.g., United States v. Brock, 108 F.3d 31, 35 (4th Cir.1997) (holding that Koon overruled prior circuit law to the contrary); see also United States v. Blake, No. 97-6406, 1999 WL 503531, at *2 (6th Cir. July 9, 1999) (unpublished) (agreeing with the reasoning of Brock). The circuits have split, however, on the question of whether courts may grant downward departures on the basis of post-sentence rehabilitation. Compare United States v. Roberts, No. 98-8037, 1999 WL 13073, at **6-7 (10th Cir. Jan.14, 1999) (unpublished) (permitting downward departure)," }, { "docid": "8855510", "title": "", "text": "court’s resolution of the point.” Koon, 518 U.S. at 100, 116 S.Ct. 2035. Thus, while we owe deference to the District Court’s interpretation of the facts warranting departure in this case, we may correct the District Court’s legal error if we find that it has departed based on a factor which would not warrant departure under any circumstances. 1. Extraordinary Rehabilitation In United States v. Sally, 116 F.3d 76 (3d Cir.1997), we held that “post-offense rehabilitation efforts, including those which occur post-conviction, may constitute a sufficient factor warranting a downward departure provided that the efforts are so exceptional as to remove the particular case from the heartland in which the acceptance of responsibility guideline was intended to apply.” Id. at 80 (emphasis is original). These rehabilitation efforts must be remarkable, “indicate real, positive behavioral change,” and demonstrate the defendant’s “commitment to repair and rebuild” his or her life. Id. at 81; see also United States v. Hancock, 95 F.Supp.2d 280, 287 (E.D.Pa.2000) (declining to grant a Sally departure based on defendant’s post-offense work record, where defendant was a college graduate and held noteworthy employment prior to arrest); United States v. Kane, 88 F.Supp.2d 408, 409 (E.D.Pa.2000) (noting it is inappropriate to grant a departure where the defendant simply engages in good conduct consistent with pre-offense activities). Though the District Court did not explicitly state it was departing downward on the basis of extraordinary rehabilitation, it is clear that the court was aware that extraordinary rehabilitation was an available basis for departure pursuant to our decision in Sally. The District Court did state that “the record of both individuals while in custody was exemplary and reflected a concentrated attitude of rehabilitation and cooperation” and that “additional imprisonment would result in disruption of their rehabilitative efforts.” The government notes that the most recent version of the Sentencing Guidelines has been amended to forbid expressly downward departures based on post-sentencing rehabilitation. The Sentencing Commission determined that such departures were inconsistent with 18 U.S.C. § 3624(b) (providing for sentence reductions due to good behavior) and im-permissibly benefitted only those who were granted resentencing de" }, { "docid": "17479651", "title": "", "text": "depart downward on the basis of a defendant’s rehabilitative efforts made after the defendant received his initial sentence. Defendants may engage in rehabilitative efforts at several stages: post-offense, post-arrest, post-conviction, and post-sentence. Most courts condense the possibilities into two categories: “post-offense,” referring to efforts made before sentencing, and “post-sentencing” (occasionally referred to as “post-conviction”), referring to efforts made after sentencing. Especially in light of the Supreme Court’s decision in Koon, the circuit courts of appeal that have considered the matter have permitted downward departures for post-offense rehabilitation. See, e.g., United States v. Brock, 108 F.3d 31, 35 (4th Cir.1997) (holding that Koon overruled prior circuit law to the contrary); see also United States v. Blake, No. 97-6406, 1999 WL 503531, at *2 (6th Cir. July 9, 1999) (unpublished) (agreeing with the reasoning of Brock). The circuits have split, however, on the question of whether courts may grant downward departures on the basis of post-sentence rehabilitation. Compare United States v. Roberts, No. 98-8037, 1999 WL 13073, at **6-7 (10th Cir. Jan.14, 1999) (unpublished) (permitting downward departure), and United States v. Green, 152 F.3d 1202, 1207 (9th Cir.1998) (same), and United States v. Rhodes, 145 F.3d 1375, 1379 (D.C.Cir.1998) (same), and United States v. Core, 125 F.3d 74, 77-78 (2d Cir.1997) (same), cert. denied, — U.S. -, 118 S.Ct. 735, 139 L.Ed.2d 672 (1998), and United States v. Sally, 116 F.3d 76, 80 (3rd Cir.1997) (same), with United States v. Sims, 174 F.3d 911, 913 (8th Cir.1999) (forbidding downward departure), and Rhodes, 145 F.3d at 1384 (Silberman, J., dissenting). In a recent unpublished decision, a panel of this court raised the issue but decided the matter on other grounds, ruling that because the district court believed it had the authority to depart downward on the basis of post-sentence rehabilitation, this court could not review its decision not to depart. See United States v. Little, No. 98-1164, 1999 WL 426883, at *6 (6th Cir. June 15, 1999) (unpublished). We believe that, given the explication in the Koon opinion, a district court has the discretion to depart downward on the basis of post-sentence rehabilitation." }, { "docid": "9817428", "title": "", "text": "federal sentencing. (JA-118.) The district court reimposed its original sentence. Id. The district court did not reopen sentencing with regard to Cook. It simply gave an explanation for its original sentence as required by the mandate of this Court. It was reasonable for the district court to interpret the mandate as requiring a new sentence only if it had based its denial of an acceptance of responsibility reduction impermissibly on Cook’s denial of responsibility of his state court claims. Because the scope of the mandate was limited to the determination of Cook’s acceptance of responsibility at the time of initial sentencing, the district court was not in error in denying an acceptance of responsibility reduction at re-sentencing. However, even if the district court could have considered evidence of Cook’s post-sentence acceptance of responsibility, the district court still should not have granted the reduction. Expressions of regret and responsibility do not mandate reductions especially when they are expressed only belatedly. See United States v. Williams, 940 F.2d 176, 182 (6th Cir.1991) (“A letter sent prior to sentencing but after conviction does not reflect the type of timely acceptance of responsibility envisioned in the Sentencing Guidelines”). II. Motion for a Downward Departure A district court’s failure to grant a downward departure may only be reviewed upon appeal if the lower court erro neously believed that it lacked authority to grant such a departure as a matter of law. See United States v. Owusu, 199 F.3d 329, 349 (6th Cir.2000). A district court may grant a downward departure on the basis of post-sentence rehabilitation at re-sentencing. United States v. Rudolph, 190 F.3d 720, 725 (6th Cir.1999). However, because the sentencing guidelines appear to take post-sentence rehabilitation into account, U.S.S.G. § 3E1.1, a departure is only warranted where “the factor is present to an exceptional degree or in some other way makes the case different from the ordinary case where the factor is present.” Koon v. United States, 518 U.S. 81, 96, 116 S.Ct. 2035, 2045, 135 L.Ed.2d 392, 411 (1996); Rudolph, 190 F.3d at 725. As noted above, a district court’s decision not" }, { "docid": "5941179", "title": "", "text": "Bradstreet’s claimed entitlement to a downward departure. Because the government had sufficient notice of Bradstreet’s argument and could formulate an effective response, we think the court acted within its discretion. Sentencing, after all, is a matter for the district court and not for the government. Cf. Fed. R.Crim.P. 11(e)(1)(B); Martinez-Martinez, 69 F.3d at 1218. B. We now turn to whether the district court was correct to grant Bradstreet’s motion for a downward departure because of his post-sentence rehabilitation. The question of whether the Guidelines allow such a departure is one of first impression in this circuit, but it is not novel to the courts of appeals. Compare United States v. Green, 152 F.3d 1202, 1207-08 (9th Cir.1998) (concluding that post-sentencing rehabilitative efforts may be a basis for a downward departure), United States v. Rhodes, 145 F.3d 1375, 1379 (D.C.Cir.1998) (same), United States v. Core, 125 F.3d 74, 77 (2d Cir.1997) (same), United States v. Sally, 116 F.3d 76, 80 (3d Cir.1997) (same), and United States v. Brock, 108 F.3d 31, 35 (4th Cir.1997) (same), with United States v. Sims, 174 F.3d 911, 912 (8th Cir.1999) (holding that post-sentencing rehabilitation is not an appropriate basis for a downward departure). We review this question de novo. See Koon v. United States, 518 U.S. 81, 98-100, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996). In Koon, the Supreme Court discussed the four different types of departure factors courts may consider when sentencing under the Guidelines. See Koon, 518 U.S. at 95-96, 116 S.Ct. 2035. Those departure factors are as follows: forbidden factors, encouraged factors, discouraged factors, and unmentioned factors. See id. Every court to have addressed post-sentence rehabilitation has agreed that the guidelines do not mention it as a factor for departure. See, e.g., Rhodes, 145 F.3d at 1379. A court can use an unmentioned factor as the basis for a departure. See Koon, 518 U.S. at 96, 116 S.Ct. 2035; Burns v. United States, 501 U.S. 129, 136-37, 111 S.Ct. 2182, 115 L.Ed.2d 123 (1991) (noting that the Guidelines “place essentially no limit on the number of potential factors that may warrant a" }, { "docid": "17479666", "title": "", "text": "1234-35 (10th Cir.1996) (holding that, upon vacating a sentence pursuant to § 2255, a district court must exercise its discretion to determine the appropriate scope of re-sentencing proceedings). Cf. Pasquarille v. United States, 130 F.3d 1220, 1222 (6th Cir.1997) (permitting the district court to revisit a defendant’s “entire aggregate sentence” composed of a “single comprehensive sentencing plan” when resentenc-ing pursuant to a successful § 2255 motion to vacate). We note that our holding comports with the practice of the Second Circuit, see Core, 125 F.3d at 75, 77 (ruling that the district court had the discretion to consider a motion for a downward departure on the basis of post-sentence rehabilitation) (“When the trial court undertook to resentence [the defendant] after vacating his § 924(c) conviction, it was required to consider him as he stood before the court at that time.”), and the reasoning of the Tenth Circuit as expressed in an unpublished opinion, see Roberts, 1999 WL 13073, at *6 (holding that the district court had the discretion to grant a downward departure for post-sentence rehabilitation) (“[A]fter vacating a § 924 conviction, a district court may limit the scope of the sentencing proceedings to certain issues, but it ‘is entitled to visit a petitioner’s entire sentence, not just the challenged portion.’ ”) (quoting United States v. Easterling, 157 F.3d 1220, 1224 (10th Cir.1998)). E To summarize: as a general matter, a district court has the discretion to depart on the basis of a defendant’s rehabilitation occurring after the imposition of sentence. The rehabilitation must far exceed that required for eligibility for the acceptance-of-responsibility sentence reduction of USSG § 3E1.1, and must seem extraordinary or exceptional when compared to the rehabilitation of other defendants. A court may not grant the departure to reward a defendant’s efforts at rehabilitation; rather, it may grant the departure only when the extraordinary rehabilitation takes the case out of the heartland anticipated by the guidelines. If the district court resentences the defendant on remand from this court, the remand order determines the scope of the proceedings, and a limited remand order will preclude consideration of requests" }, { "docid": "17479663", "title": "", "text": "reduction, and must seem so “extraordinary or exceptional,” Sally, 116 F.3d at 82, as to warrant alteration of a sentence. The rehabilitation must “exceed ‘to an exceptional degree’ the rehabilitative efforts of all defendants,” Rhodes, 145 F.3d at 1383; successful completion of mandatory work or GED programs cannot support the departure, as nothing “extraordinary” attaches to the completion of one’s expected duties. Cf. ibid, (citing Federal Bureau of Prisons Program Statements requiring certain prisoners to work and obtain GEDs). Thus, a defendant (as movant) must prove both his rehabilitation and that, when compared to other defendants, his rehabilitative efforts appear so extraordinary as to merit a departure. The departure cannot simply reward rehabilitation — it only can use the defendant’s extraordinary rehabilitation to justify departing from the determinate sentencing framework. D We recognize that, as a general matter, when a district court resentences a defendant, it has the discretion to depart downward on the basis of extraordinary post-sentence rehabilitation. When the re-sentencing follows a remand from this court, the district court will have the discretion to grant the departure, unless this court limited the scope of the remand. Cf., e.g., United States v. Jennings, 83 F.3d 145, 151 (6th Cir.) (“On remand, the only constraint under which the District Court must operate, for the purposes of resentencing, is the remand order itself. Where the remand does not limit the District Court’s review, sentencing is to be de novo.”), cert. denied, 519 U.S. 975, 117 S.Ct. 411, 136 L.Ed.2d 324 (1996); United States v. Duso, 42 F.3d 365, 368 (6th Cir. 1994). In Rudolph’s case, however, the district court encountered the motion for downward departure in a resentencing held subsequent to the court’s grant of Rudolph’s motion for relief pursuant to 28 U.S.C. § 2255. In his § 2255 motion, Rudolph did not request a downward departure. Even if he had, however, post-sentence rehabilitation would not provide a basis for relief under § 2255, because such rehabilitation does not constitute ground for collateral attack on a defendant’s sentence. See, e.g., United States v. Dugan, 57 F.Supp.2d 1207 at 1209-10 (D.Kan.1999) (compiling" }, { "docid": "9817429", "title": "", "text": "sentencing but after conviction does not reflect the type of timely acceptance of responsibility envisioned in the Sentencing Guidelines”). II. Motion for a Downward Departure A district court’s failure to grant a downward departure may only be reviewed upon appeal if the lower court erro neously believed that it lacked authority to grant such a departure as a matter of law. See United States v. Owusu, 199 F.3d 329, 349 (6th Cir.2000). A district court may grant a downward departure on the basis of post-sentence rehabilitation at re-sentencing. United States v. Rudolph, 190 F.3d 720, 725 (6th Cir.1999). However, because the sentencing guidelines appear to take post-sentence rehabilitation into account, U.S.S.G. § 3E1.1, a departure is only warranted where “the factor is present to an exceptional degree or in some other way makes the case different from the ordinary case where the factor is present.” Koon v. United States, 518 U.S. 81, 96, 116 S.Ct. 2035, 2045, 135 L.Ed.2d 392, 411 (1996); Rudolph, 190 F.3d at 725. As noted above, a district court’s decision not to grant a downward departure is normally not reviewable upon appeal. Here, however, Cook contends that the district court was unaware of its authority to grant a downward departure on the basis of post-sentence rehabilitation. (Cook Br. at 23.) In this instance the district court did not explicitly discuss its authority to grant a downward departure on the basis of his post-sentence rehabilitation, either in its order (JA 119-121.) or at the re-sentencing hearing. (JA 160-61.) But an explicit invocation of authority is unnecessary, as “the district court need not explicitly state that it is aware of its discretionary power to depart downward; as long as the record makes clear such awareness.... ” United States v. Strickland, 144 F.3d 412, 418 (6th Cir.1998). Further, where explicit mention is not made of the court’s power to depart downwards, “it should be assumed that the court in the exercise of its discretion found downward departure unwarranted.” United States v. Byrd, 53 F.3d 144, 145 (6th Cir.1995) quoting United States v. Bar rera-Barron, 996 F.2d 244, 245 (10th" }, { "docid": "4865", "title": "", "text": "that it lacked the authority to consider post-sentencing rehabilitation as a basis for downward departure. On appeal, Mr. Sims contends that the district court erred in refusing his request. We have held that a defendant's post-offense rehabilitative conduct-that is, conduct from arrest up to the time of the sentencing-can, if sufficiently atypical, furnish an appropriate basis for downward departure. United States v. Kapitzke, 180 F.3d 820, 822-24 (8th Cir.1997). Mr. Sims now asks us to extend this holding to permit downward departures based on post-sentencing rehabilitative conduct, as well-that is, rehabilitation that takes place behind the prison walls during the period between the original sentencing and a resentencing. In support of his position, Mr. Sims directs our attention to cases from other circuits that hold that post-sentencing re-habffitation can indeed provide an appropriate basis for a downward departure at a resentencing. See United States v. Green, 152 F.3d 1202, 1207-08 (9th Cir.1998) (per curiam); United States v. Rhodes, 145 F.3d 1375, 1377-82 (D.C.Cir.1998); and United States v. Core, 125 F.3d 74, 76-79 (2d Cir.1997), cert. denied, - U.S. -, 118 S.Ct. 735, 139 L.Ed.2d 672 (1998). See also United States v. Brock, 108 F.3d 31, 33-35 (4th Cir.1997). Relying on the Supreme Court’s decision in Koon v. United States, 518 U.S. 81, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996), these cases reason that post-sentencing rehabilitation may support a departure because consideration of this factor is not specifically proscribed by the Sentencing Commission. We respectfully disagree with the other appellate courts that have examined this issue. We do not think that Koon is controlling here. While there is language in Koon that can be taken to support Mr. Sims’s argument, its context disqualifies it for application to the present situation. Cases cannot be read like statutes. Koon addressed the matters that a district court may properly consider in departing from the guidelines at an. original sentencing. The Court never addressed the question of whether post-sentencing events might support a departure at a resentencing because that matter was not before it. We therefore do not think that Koon should be read to" }, { "docid": "8855509", "title": "", "text": "disparity in sentencing among similarly situated co-defendants, extraordinary family circumstances, and reincarceration after completion of a sentence. The government argues that on the facts of this case, a departure based on any of the above factors is unwarranted. “We review a district court’s decision to depart from the applicable Guidelines range under an abuse of discretion standard.... ” United States v. Sweeting, 213 F.3d 95, 100 (3d Cir.2000), citing Koon v. United States, 518 U.S. 81, 98, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996). “Our review is limited to ensuring that the circumstances relied upon by the District Court are not ‘so far removed from those found exceptional in existing case law that the sentencing court may be said to be acting outside permissible limits.’ ” United States v. Serafini, 233 F.3d 758, 772 (3d Cir.2000) quoting Sweeting, 213 F.3d at 100. However, we also note that “whether a factor is a permissible basis for departure under any circumstances is a question of law, and the court of appeals need not defer to the district court’s resolution of the point.” Koon, 518 U.S. at 100, 116 S.Ct. 2035. Thus, while we owe deference to the District Court’s interpretation of the facts warranting departure in this case, we may correct the District Court’s legal error if we find that it has departed based on a factor which would not warrant departure under any circumstances. 1. Extraordinary Rehabilitation In United States v. Sally, 116 F.3d 76 (3d Cir.1997), we held that “post-offense rehabilitation efforts, including those which occur post-conviction, may constitute a sufficient factor warranting a downward departure provided that the efforts are so exceptional as to remove the particular case from the heartland in which the acceptance of responsibility guideline was intended to apply.” Id. at 80 (emphasis is original). These rehabilitation efforts must be remarkable, “indicate real, positive behavioral change,” and demonstrate the defendant’s “commitment to repair and rebuild” his or her life. Id. at 81; see also United States v. Hancock, 95 F.Supp.2d 280, 287 (E.D.Pa.2000) (declining to grant a Sally departure based on defendant’s post-offense work record, where" }, { "docid": "5941178", "title": "", "text": "see, e.g., United States v. Canada, 960 F.2d 263, 269 (1st Cir.1992), we defer to the lower court’s judgment regarding the appropriate remedy, see Santobello, 404 U.S. at 263, 92 S.Ct. 495. Here, the district court bracketed the government’s argument that Bradstreet should be held to his bargain and allowed him to argue for the downward departure. More specifically, the judge found whether Bradstreet had breached the agreement and whether it could grant the government specific performance to be “somewhat beside the point” because the court was not bound by recommendations in the parties’ sentencing agreement. See Fed.R.Crim.P. 11(e)(1)(B) (noting that any sentencing “recommendation or request is not binding on the court”); see also United States v. Martinez-Martinez, 69 F.3d 1215, 1218 (1st Cir.1995) (noting that “any sentencing agreement between the parties was not binding on the court but merely a recommendation”). The court thus indicated that regardless of whether it could grant specific performance for a defendant’s breach, it would not do so in this case because it desired to consider the merits of Bradstreet’s claimed entitlement to a downward departure. Because the government had sufficient notice of Bradstreet’s argument and could formulate an effective response, we think the court acted within its discretion. Sentencing, after all, is a matter for the district court and not for the government. Cf. Fed. R.Crim.P. 11(e)(1)(B); Martinez-Martinez, 69 F.3d at 1218. B. We now turn to whether the district court was correct to grant Bradstreet’s motion for a downward departure because of his post-sentence rehabilitation. The question of whether the Guidelines allow such a departure is one of first impression in this circuit, but it is not novel to the courts of appeals. Compare United States v. Green, 152 F.3d 1202, 1207-08 (9th Cir.1998) (concluding that post-sentencing rehabilitative efforts may be a basis for a downward departure), United States v. Rhodes, 145 F.3d 1375, 1379 (D.C.Cir.1998) (same), United States v. Core, 125 F.3d 74, 77 (2d Cir.1997) (same), United States v. Sally, 116 F.3d 76, 80 (3d Cir.1997) (same), and United States v. Brock, 108 F.3d 31, 35 (4th Cir.1997) (same), with" } ]

[ { "docid": "7852097", "title": "", "text": "left messages for Lennartz informing him of the hospitalization; however, Lennartz continued to submit claims for the patient’s transportation. Lennartz billed the waiting time as five hours for each trip. He billed out-of-county mileage of forty-eight miles, while the investigation found the mileage to be thirty-two miles. II. ANALYSIS THE RULE 404(b) EVIDENCE Lennartz contends that the district court’s admission of testimony regarding prior uncharged misconduct attributed to him violated Federal Rule of Evidence 404(b). In reviewing the district court’s evidentiary rulings, we are limited to determining whether the district court abused its discretion. United States v. Whalen, 940 F.2d 1027, 1032 (7th Cir.1991). As this court has noted, “ ‘[ajppellants who challenge evidentiary rulings of the district court are like rich men who wish to enter the Kingdom; their prospects compare with those of camels who wish to pass through the eye of a needle.’ ” Id. (quoting United States v. Glecier, 923 F.2d 496, 503 (7th Cir.1991)). Rule 404(b) provides, Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Fed.R.Evid. 404(b). The admissibility of evidence under Rule 404(b) is determined by a four-part test. United States v. Scop, 940 F.2d 1004, 1009 (7th Cir.1991). Evidence of other crimes, wrongs, or acts may be admitted where: (1) the evidence is directed toward establishing a matter in issue other than the defendant’s propensity to commit the crime charged, (2) the evidence shows that the other act is similar enough and close enough in time to be relevant to the matter in issue, (3) the evidence is sufficient to support a jury finding that the defendant committed the similar act, and (4) the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice. Id. at 1009 (quoting United States v. Penson, 896 F.2d 1087, 1091 (7th Cir.1990)). Lennartz does not argue that the district court" } ]

[ { "docid": "2805430", "title": "", "text": "of Evid.Rule 404(b). On appeal, both defendants claim that the “other acts” evidence was improperly admitted. Further, Tuchow alleges that the district court erred in admitting hearsay evidence of taped conversation between Farina and Walsh prior to Walsh being introduced to Tuchow. The defendants’ other grounds for reversal include claims that there was insufficient evidence to support the charges of conspiracy and attempted extortion and further that the evidence was insufficient to establish a nexus between interstate commerce and the extortion payments made by Walsh (Counts IV, V, VI). II. A. “Other Acts” Evidence. Both Farina and Tuchow complain that the district court erred when it allowed receipt of “other acts” evidence under Fed. R.Evid. Rule 404(b). Specifically, Tuchow argues that the court erred when it received in evidence a tape recorded conversation between Tuchow and his barber, a Mr. Herzog, wherein Tuchow allegedly offered to bribe a municipal court judge to dismiss a speeding ticket. Farina also argues that the court erred in admitting a taped conversation between himself and Walsh wherein Farina agreed to find a government job for Walsh’s nephew for $2,500 and fix a drunken driving ticket for Walsh’s uncle for $1,000. “According to Rule 404(b), evidence of other acts cannot be introduced to establish the defendant’s bad character or to show his propensity to commit the act in question simply because he committed a similar act in the past.” United States v. Chaimson, 760 F.2d 798 (7th Cir.1985). Rather, this “other acts” evidence is admissible only if: “(1) The evidence is directed toward establishing a matter in issue other than the defendant’s propensity to commit the crime charged, (2) the evidence shows that the other act is similar enough and close enough in time to be relevant to the matter in issue ..., (3) the evidence is clear and convincing, and (4) the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice.” Id. at 804, quoting United States v. Shackleford, 738 F.2d 776, 779 (7th Cir.1984); see also United States v. Stump, 735 F.2d 273, 275 (7th Cir.), cert." }, { "docid": "5553568", "title": "", "text": "as motive, opportunity, intent, or the other elements outlined by the Rule. Id. Here the government presented the other acts evidence as proof of Torres’s retaliatory intent. He now appeals the court’s decision to admit the evidence over his objection, arguing that the evidence failed to demonstrate his intent and was merely used to attack his character before the jury. We review a court’s decision to admit Rule 404(b) evidence for an abuse of discretion. United States v. Hudson, 884 F.2d 1016, 1019 (7th Cir.1989), cert. denied, 496 U.S. 939, 110 S.Ct. 3221, 110 L.Ed.2d 668 (1990). This Circuit applies a four-part test when examining Rule 404(b) evidence, which may be admitted where: (1) the evidence is directed toward establishing a matter in issue other than the defendant’s propensity to commit the crime charged, (2) the evidence shows that the other act is similar enough and close enough in time to be relevant to the matter in issue, (3) the evidence is sufficient to support a jury finding that the defendant committed the similar act, and (4) the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice. United States v. Lennartz, 948 F.2d 363, 366 (7th Cir.1991); United States v. Robinson, 956 F.2d 1388, 1395 (7th Cir.1992), petition for cert. filed, 61 U.S.L.W. 3200 (July 23, 1992). Torres maintains that the evidence of the car wash shooting and the concealed weapons incident did not meet the first, second, and fourth parts of this test, and thus should have been excluded. We examine each part in turn. 1. Matter At Issue Other Than Propensity The first requirement is that the evidence must be relevant to some matter at issue in the case (i.e., intent), rather than merely establishing the defendant’s propensity to commit crimes. In United States v. Shackleford, 738 F.2d 776 (7th Cir.1984), we held that other acts evidence of intent always relates to a matter at issue other than propensity when the defendant is charged with a specific intent crime. When the crime charged requires proof of specific intent, we have held that," }, { "docid": "5502943", "title": "", "text": "Lennartz, 948 F.2d 363, 366 (7th Cir.1991). That evidence may be admitted where: (1) the evidence is directed toward establishing a matter in issue other than the defendant’s propensity to commit the crime charged, (2) the evidence shows that the other act is similar enough and close enough in time to be relevant to the matter in issue, (3) the evidence is sufficient to support a jury finding that the defendant committed the similar act, and (4) the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice. Id. (quoting United States v. Whalen, 940 F.2d 1027, 1032 (7th Cir.), cert. denied, — U.S. -, 112 S.Ct. 403, 116 L.Ed.2d 352 (1991)). See also United States v. Shackleford, 738 F.2d 776, 779 (7th Cir.1984). The evidence of the marijuana conspiracy clearly satisfies the first element of the test. See Chaimson, 760 F.2d at 805 (where specific intent is an element of the crime charged, evidence of other acts may be introduced to establish that intent); United States v. Liefer, 778 F.2d 1236, 1243 (7th Cir.1985). The third element of the four-part test is also satisfied. The appellants argue that the second element of the test is not satisfied because the marijuana conspiracy began long before the cocaine distribution conspiracy. They also contend that the two conspiracies' operations differed significantly, and that the two conspiracies had different members. They note that the marijuana conspiracy, unlike the cocaine conspiracy, imported some of the narcotics directly from Colombia. Moreover, they insist that the marijuana conspiracy also included several conspirators who were not involved in the cocaine conspiracy. Contrary to appellants’ contentions, we conclude that the second element of the test is satisfied. The marijuana conspiracy was, in fact, quite similar to the cocaine distribution conspiracy. Paul was the leader of both conspiracies and was assisted throughout by Daniel, who played a major role in distribution in the St. Louis area. The conspiracies both distributed illegal narcotics purchased from sources in Florida and both principally utilized Yager and Yackey as “runners.” Although the marijuana conspiracy began long before the" }, { "docid": "1281167", "title": "", "text": "504-05, here, there is no hint in either the record or the Lanes’ brief that Randy lacked access to any portion of the Lane residence. It is the defendant’s burden to rebut the presumption of joint control by making such a showing, id. at 505, and because the Lanes have not done so, we conclude that Randy’s consent sufficed to render the evidence seized admissible against Judy as well as him. B. Admission of Marijuana and Other Evidence Seized from the Lane Home The district court admitted the evidence concerning the marijuana, electronic scales, duffel bag, and other items seized from the Lanes’ home pursuant to Fed.R.Evid. 404(b), for the purpose of establishing the Lanes’ knowledge and intent with respect to the charged conspiracy. As with other eviden-tiary rulings, we review that decision for abuse of discretion. - United States v. McCarthur, 6 F.3d 1270, 1279 (7th Cir.1993). Although Rule 404(b) precludes the admission of evidence concerning the defendant’s “other crimes, wrongs, or acts” in order to establish his propensity to commit the offense charged, it does allow such evidence to be admitted for a variety of other purposes. Fed.R.Evid. 404(b). Before admitting the evidence for one or more of these purposes, however, the district court must be satisfied that it satisfies each of four conditions: “(1) the evidence is directed toward establishing a matter in issue other than the defendant’s propensity to commit the crime charged, (2) the evidence shows that the other act is similar enough and close enough in time to be relevant to the matter in issue, (3) the evidence is sufficient to support a jury finding that the defendant committed the similar act, and (4) the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice.” United States v. Levy, 955 F.2d 1098, 1102 (7th Cir.1992) (quoting United States v. Zapata, 871 F.2d 616, 620 (7th Cir.1989)), cert. denied, — U.S. -, 113 S.Ct. 102, 121 L.Ed.2d 62 (1992). The Lanes contend that the evidence seized from their home failed each of these conditions, but we confine our consideration to" }, { "docid": "20887460", "title": "", "text": "his trial, that rule stated: Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. The admissibility of evidence under this rule is governed by a well-established four-part test. Evidence of other crimes, wrongs, or acts may be admitted when: “(1) the evidence is directed toward establishing a matter in issue other than the defendant’s propensity to commit the crime charged, (2) the evidence shows that the other act is similar enough and close enough in time to be relevant to the matter in issue, (3) the evidence is sufficient to support a jury finding that the defendant committed the similar act, and (4) the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice.” United States v. Lennartz, 948 F.2d 363, 366 (7th Cir.1991) (quoting United States v. Scop, 940 F.2d 1004, 1009 (7th Cir.1991)). We review a district court’s decision to admit evidence under Rule 404(b) for an abuse of discretion. United States v. Schweihs, 971 F.2d 1302, 1311 (7th Cir.1992). Mr. Koen first brings an omnibus challenge to the admissibility of all of this evidence, claiming that the court erred in concluding that the probative value of the evidence was not outweighed by its prejudicial effect. In assessing this argument, we note that “[w]e accord a trial judge’s assessment of relative probative value and unfair prejudice ‘great deference because of his [or her] firsthand exposure to the evidence and * * * familiarity with the course of the trial proceeding.’ ” Scop, 940 F.2d at 1009 (quoting United States v. Briscoe, 896 F.2d 1476,1498 (7th Cir.), cert. denied sub nom. Usman v. United States, 498 U.S. 863, 111 S.Ct. 173,112 L.Ed.2d 137 (1990)). Mr. Koen does not dispute that this evidence tends to establish his indebtedness, and consequently his motive to engage in the offenses for which he was charged. He does" }, { "docid": "23309459", "title": "", "text": "98 L.Ed.2d 381 (1988); United States v. Beasley, 809 F.2d 1273 (7th Cir.1987); United States v. Shackleford, 738 F.2d 776 (7th Cir.1984). To determine if such evidence is admissible, the district court must engage in a four-pronged analysis and evaluate whether (1) the evidence is directed toward establishing a matter in issue other than the defendant’s propensity to commit the crime charged, (2) the evidence shows that the other act is similar enough and close enough in time to be relevant to the matter in issue, (3) the evidence is sufficient to support a jury finding that the defendant committed the similar act, and (4) the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice. See Shackleford, 738 F.2d at 779 (prongs (1), (2), and (4)); Huddleston v. United States, 485 U.S. 681, 108 S.Ct. 1496, 1499, 99 L.Ed.2d 771 (1988) (prong (3)). See also United States v. Manganellis, 864 F.2d 528, 531-532 (7th Cir.1988); United States v. Rollins, 862 F.2d 1282, 1294 (7th Cir. 1988). The overall, governing criterion of the analysis, however, is that there “must be a principled exercise of discretion” by the district court. Beasley, 809 F.2d at 1279. In reviewing decisions to admit evidence, we have stated that the district court’s “[discretion, when exercised, will rarely be disturbed,” id., and that we shall “reverse a decision of the trial court only for abuse of discretion.” United States v. Byrd, 771 F.2d 215, 219 (7th Cir.1985). Here, the district court did not abuse its discretion in admitting Bilancieri’s testimony regarding the June transaction. In the parlance of Rule 404(b), the evidence was admissible for proof of “intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” Fed.R. Evid. 404(b). Specifically, it shows Mr. Zapata’s access to large quantities of cocaine, his ability to acquire distant customers, and the similarity between the modus operandi of temporally close transactions. It additionally goes to refute Mr. Zapata’s theory of defense, which, according to his counsel, was that he “had nothing whatsoever to do with any cocaine transactions. Nothing. Not in [sic] June" }, { "docid": "9853545", "title": "", "text": "objection generally constitutes forfeiture, and we will review only for plain error. United States v. Smith, 80 F.3d 1188, 1193 (7th Cir.1996) (citing United States v. Olano, 507 U.S. 725, 730-34, 113 S.Ct. 1770, 1776-77, 123 L.Ed.2d 508 (1993)). However, because the government failed to assert that Paredes forfeited her objection to the alleged error, the government has waived Paredes’s forfeiture, and we will review the alleged error as if she had made a proper objection. United States v. Archambault, 62 F.3d 995, 998 (7th Cir.1995). Rule 404(b) proscribes the admission of evidence of “other crimes, wrongs, or acts ... to prove the character of a person in order to show action in conformity therewith.” Fed. R. Evid. 404(b). However, such evidence is admissible “for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident----” Id. We apply a four-part test in determining the admissibility of evidence under Rule 404(b), inquiring whether: (1) the evidence is directed toward establishing a matter in issue other than the defendant’s propensity to commit the crime charged, (2) the evidence shows that the other act is similar enough and close enough in time to be relevant to the matter in issue, (3) the evidence is sufficient to support a jury finding that the defendant committed the similar act, and (4) the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice. United States v. Koen, 982 F.2d 1101, 1116 (7th Cir.1992) (quoting United States v. Scop, 940 F.2d 1004, 1009 (7th Cir.1991)). We will not upset a district court’s decision to admit evidence under Rule 404(b) absent an abuse of discretion. Koen, 982 F.2d at 1116. Paredes concedes that the two prior convictions were admitted for purposes of establishing her intent, knowledge, plan, preparation, and identity — proper subjects under Rule 404(b). She also concedes that there was sufficient evidence to support a jury finding that she had committed the prior crimes and that the prior convictions were for crimes similar enough and close enough in time to be relevant" }, { "docid": "8839944", "title": "", "text": "the intent to deliver it is relevant to Baker’s intent and knowledge. See United States v. Conner, 583 F.3d 1011, 1021-22 (7th Cir.2009) (“In drug cases, we have often found a defendant’s other drug transactions relevant for purposes other than propensity, such as knowledge, intent, and lack of mistake.”); United States v. Curry, 79 F.3d 1489, 1495-96 (7th Cir. 1996) (finding that in a case where the defendant denied possessing a baggie containing crack cocaine that was dropped into a bush, evidence from witnesses who had previously purchased crack cocaine from the defendant was relevant and properly admitted); United States v. Wilson, 31 F.3d 510, 515 (7th Cir.1994) (finding that evidence of prior drug transactions showed that the defendant “was familiar with the cocaine business and was not some innocent bystander ‘mistakenly caught up in an overzealous law enforcement’ ”). Rule 404(b) is a rule of exclusion. It states that evidence of a defendant’s prior bad acts is not admissible if entered simply to show the defendant’s propensity to commit the crime with which he is charged. Fed.R.Evid. 404(b). The evidence may, however, be admissible to establish “motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” We employ a four-part test to determine whether evidence of prior conduct is admissible under Rule 404(b), taking into consideration the following factors: (1) the evidence is directed toward establishing a matter in issue other than the defendant’s propensity to commit the crime charged; (2) the evidence shows that the other act is similar enough and close enough in time to be relevant to the matter in issue; (3) the evidence is sufficient to support a jury finding that the defendant committed the similar act; and (4) the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice. United States v. Shackleford, 738 F.2d 776, 779 (7th Cir.1984). Rule 403 is also an exclusionary rule; it provides for the exclusion of relevant evidence that is unfairly prejudicial to the defendant. Fed.R.Evid. 403. “Evidence is unfairly prejudicial only if it will induce the jury to decide" }, { "docid": "8775927", "title": "", "text": "..., (3) the evidence is clear and convincing, and (4) the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice. United States v. Davis, 838 F.2d 909, 914 (7th Cir.1988) (quoting United States v. Shackleford, 738 F.2d 776, 779 (7th Cir.1984) (citations omitted)); see United States v. Taggatz, 831 F.2d 1365, 1358 (7th Cir.1987); United States v. Tuchow, 768 F.2d 855, 862 (7th Cir.1985); United States v. Chaimson, 760 F.2d 798, 804 (7th Cir.1985). The decision of the district court will not be reversed unless there was a clear abuse of discretion. Taggatz, 831 F.2d at 1358; see Davis, 838 F.2d at 914; United States v. Harris, 761 F.2d 394, 398 (7th Cir.1985). Here, the district court noted that many of the recorded conversations challenged by the appellants were cryptic and oblique. Because the court believed it was important for the jury to understand the “true ... meaning of the word[s] and the knowledge and intent with which they were spoken by Mr. Castrellon and the recorded speakers,” the court admitted the evidence. Tr. vol. 25 at 4513. The court also determined that the evidence “is highly probative on those matters that the defendant Castrellon was, if the government’s evidence is accepted as true, engaged in a substantial cocaine transaction shortly pri- or to the events of this conspiracy....” Id. at 4513-14. The district court then concluded: This evidence goes to establish a matter in issue other than the defendant’s propensity to commit the crime charged. It gives gloss to the meaning of the spoken words and the intent with which they were spoken. The act is both similar to charged acts and close enough in time to be relevant. The evidence is clear and convincing and its probative value is not substantially outweighed by unfair prejudice. It goes to an element in this case. Id. at 4514. The district court’s ruling evidences careful consideration of the relevant factors prior to admitting the evidence. On appeal, there is no showing that the court abused its discretion; the factors articulated by Davis and Shackleford were" }, { "docid": "5502941", "title": "", "text": "portions are so substantial as to render the recording as a whole untrustworthy.’ ” United States v. Zambrana, 864 F.2d 494, 498 (7th Cir.1988) (quoting United States v. Wilson, 578 F.2d 67, 69 (5th Cir. (1978)). Our review of the tapes indicates that the tapes were generally audible, with inaudible portions. The inaudibility of a portion of a tape, which is generally audible, is relevant only to its weight, a jury question, not to its admissibility. United States v. Vega, 860 F.2d 779, 790-91 (7th Cir.1988). The appellants also contend that the district court abused its discretion in allowing the jury to read government transcripts of the conversations as the taped conversations played. It is well settled that the district court has broad discretion “in deciding whether to allow the jury to use written transcripts as aids in listening to tape recordings.” United States v. Keck, 773 F.2d 759, 766 (7th Cir.1985); Zambrana, 864 F.2d at 497. The district court followed the procedures we set forth in Zam-brana in ordering the parties to prepare a stipulated transcript or to produce alternate versions of the conversations. See id. at 498. The appellants declined to prepare their own version of the conversations. After reviewing the tapes and the transcripts, we conclude that the district court did not abuse its discretion in determining that the government transcript was sufficiently accurate to allow its use by the jury. Paul and Daniel next contend that the district court erred in applying Rule 404(b) when it admitted evidence that Paul and Daniel engaged in a marijuana conspiracy in the 1970’s. Woods argues that the evidence of the Robinsons’ marijuana conspiracy prejudiced him. After considering the evidence and the appellants’ objections, the district court admitted the evidence to show the Robinsons’ “intent, preparation, plan, and knowledge.” We review a district court’s decision to admit evidence of a defendant’s prior crimes for an abuse of discretion. United States v. Chaimson, 760 F.2d 798, 808 (7th Cir.1985). In determining whether evidence of a defendant’s other crimes, wrongs, or acts is admissible we apply a four-part test. United States v." }, { "docid": "11176669", "title": "", "text": "years. See 21 U.S.C. §§ 841(b)(1)(A), 851. The district court ordered Lee to serve the minimum statutory term of 20 years. II. Lee’s lead argument on appeal, and the only one we need reach, is that the district court abused its discretion in admitting into evidence his 2004 conviction for the possession of crack cocaine. Although that evidence was nominally admitted solely for purposes identified as permissible by Rule 404(b), Lee argues that his prior conviction actually was probative of his knowledge and intent, and the absence of mistake, only in the sense that it established his propensity to commit cocaine-related offenses — the very purpose for which Rule 404(b) forbids the admission of prior wrongful acts. After reviewing the trial record, we are persuaded that he is correct. Rule 404(b) prohibits evidence of a defendant’s other crimes, wrongs, or acts as proof of his propensity to commit the charged offense, but allows such evidence for other purposes, including (but not limited to) motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. Our precedents have consistently stated that evidence of a defendant’s uncharged, wrongful act must satisfy four criteria in order to be properly admitted: (1)the evidence is directed toward establishing a matter in issue other than the defendant’s propensity to commit the crime charged; (2) the evidence shows that the other act is similar enough and close enough in time to be relevant to the matter in issue; (3) the evidence is sufficient to support a jury finding that the defendant committed the other act; and (4) the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice. See United States v. Shackleford, 738 F.2d 776, 779 (7th Cir.1984), overruled in part on other grounds by Huddleston v. United States, 485 U.S. 681, 108 S.Ct. 1496, 99 L.Ed.2d 771 (1988); see also, e.g., United States v. Gulley, 722 F.3d 901, 906, 2013 WL 2991794, at *5 (7th Cir. June 17, 2013); United States v. Howard, 692 F.3d 697, 703 (7th Cir.2012); United States v. Vargas, 689 F.3d 867, 875" }, { "docid": "23309458", "title": "", "text": "ANALYSIS A. Other Acts Evidence Mr. Zapata submits as his primary challenge on appeal that the district court erred in admitting evidence of Bilancieri’s prior transaction with Mr. Zapata in June 1987. See Appellant’s Br. at 11. In a related challenge, Mr. Zapata submits that the district court erred in instructing the jury on the consideration of the June transaction evidence. Our inquiry is governed by Federal Rule of Evidence 404(b). That Rule states that: Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Fed.R.Evid. 404(b). 1. Admission of Evidence This court has frequently discussed the relevant standard under which the district courts may permit the admission of evidence of acts other than those charged. See, e.g., United States v. Leight, 818 F.2d 1297 (7th Cir.), cert. denied, — U.S. -, 108 S.Ct. 356, 98 L.Ed.2d 381 (1988); United States v. Beasley, 809 F.2d 1273 (7th Cir.1987); United States v. Shackleford, 738 F.2d 776 (7th Cir.1984). To determine if such evidence is admissible, the district court must engage in a four-pronged analysis and evaluate whether (1) the evidence is directed toward establishing a matter in issue other than the defendant’s propensity to commit the crime charged, (2) the evidence shows that the other act is similar enough and close enough in time to be relevant to the matter in issue, (3) the evidence is sufficient to support a jury finding that the defendant committed the similar act, and (4) the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice. See Shackleford, 738 F.2d at 779 (prongs (1), (2), and (4)); Huddleston v. United States, 485 U.S. 681, 108 S.Ct. 1496, 1499, 99 L.Ed.2d 771 (1988) (prong (3)). See also United States v. Manganellis, 864 F.2d 528, 531-532 (7th Cir.1988); United States v. Rollins, 862 F.2d 1282, 1294 (7th Cir. 1988). The overall, governing" }, { "docid": "3627017", "title": "", "text": "This limiting instruction delineates the proper use of such testimony under Rule 404(b) and cured any defect in initially admitting Stein’s testimony as substantive evidence of the conspiracy. Accordingly, Stein’s testimony was properly admitted under Rule 404(b) as evidence of the defendant's intent to distribute cocaine. Conspiracy to distribute is a specific intent crime; that is, the government must prove that the defendant conspired to distribute, with the intent to distribute, a controlled substance. United States v. Monzon, 869 F.2d 338, 344 (7th Cir.), cert. denied, 490 U.S. 1075, 109 S.Ct. 2087, 104 L.Ed.2d 650 (1989). When a crime requires the government to prove specific intent, we have held that, because it is a material element to be proved by the government, it is necessarily in issue and the government may submit evidence of other acts in an attempt to establish the matter in its case-in-chief, assuming the other requirements of Rules 404(b) and 403 [.concerning the danger of unfair prejudice to the defendant,] are satisfied.” United States v. Shackleford, 738 F.2d 776, 781 (7th Cir.1984). This circuit uses a four-part test to determine whether evidence of acts other than those charged are admissible. Prior to admitting evidence under Rule 404(b), the district court must determine that (1) the evidence is directed toward establishing a matter in issue other than the defendant’s propensity to commit the crime charged, (2) the evidence shows that the other act is similar enough and close enough in time to be relevant to the matter in issue, (3) the evidence is sufficient to support a jury finding that the defendant committed the similar act, and (4) the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice. Stevenson, 942 F.2d at 1117. Applying this test to the facts of this case, we find Maholias has failed to demonstrate that the district court committed a clear abuse of discretion requiring reversal of her conviction. That on two occasions Maholias bought quantities of cocaine not ordinarily used for personal consumption is probative of her intent to distribute the drug. Intent to distribute" }, { "docid": "14062727", "title": "", "text": "We laid down guidelines to ensure that the evidence presented by the government actually goes to prove matters at issue rather than the defendant’s propensity to commit the crime charged. See 738 F.2d at 779. We note initially that Liefer contends that the holding of Shackleford controls the outcome of this case. In Shackleford, we reversed the defendant’s conviction because the trial court had allowed the government to introduce evidence of a pri- or act of extortion by the defendant. We concluded that the evidence was only probative of the defendant’s propensity to commit the crime charged. 738 F.2d at 779-84. We reached such a conclusion only after carefully analyzing the government’s evidence in light of the particular facts of that case, the elements of the crime charged, and Rule 404(b). Therefore, Shackleford provides us not with an answer, but rather with a method of analyzing Liefer’s claim. In Shackleford, we used a four-part test to analyze whether the trial court should have admitted evidence of the defendant’s prior misconduct under Rules 404(b) and 403: [ajdmission of evidence of prior or subsequent acts will be approved if (1) the evidence is directed toward establishing a matter in issue other than the defendant’s propensity to commit the crime charged, (2) the evidence shows that the other act is similar enough and close enough in time to be relevant to the matter in issue (i.e. such that ‘the consequential fact may be inferred from the proffered evidence,’ 2 J. Weinstein & M. Berger, Weinstein’s Evidence II 404[8] at 404-49 (1982)), (3) the evidence is clear and convincing, and (4) the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice. 738 F.2d at 779. See also United States v. Arnold, 773 F.2d 823, 832-33 (7th Cir.1985); United States v. Chaimson, 760 F.2d 798, 804 (7th Cir.1985); United States v. Boroni, 758 F.2d 222, 224 (7th Cir.1985); United States v. Hyman, 741 F.2d 906, 912 (7th Cir.1984); United States v. Kane, 726 F.2d 344, 348 (7th Cir.1984). The government contends that Shipley’s testimony was relevant to issues other" }, { "docid": "18844169", "title": "", "text": "to exclude relevant evidence if its probative value is outweighed by the danger of unfair prejudice. Rule 404 states that “evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith” but may be “admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” Fed.R.Evid. 404(b). In analyzing the admissibility of evidence under Rules 403 and 404(b) a trial judge would first consider whether the evidence was directed toward establishing a matter in issue other than the defendant’s propensity to commit the offense. United States v. Shackleford, 738 F.2d 776 (7th Cir.1984). The district court would also evaluate whether the other act was similar enough and close enough in time to the offense charged, id. at 779, and whether the act occurred and the defendant was the actor, Huddleston v. United States, 485 U.S. 681, 108 S.Ct. 1496, 99 L.Ed.2d 771 (1988). Finally, the court would weigh the probative value of admitting the evidence against the danger of unfair prejudice. Shackleford, 738 F.2d at 779. Although the tax evidence is prejudicial in the bribery context, we cannot say that the prejudice so outweighs its relevance that a district court would have abused its discretion by admitting the evidence. The government revealed Hogan’s tax deficiency only for the years in which he also was accused of taking bribes. The evidence established that Hogan had unreported income on hand during 1981, 1982, and 1983. We have previously held that evidence of wealth may be admissible to establish that a person engaged in a cash-intensive criminal enterprise, even if there is another explanation for the extra money. See United States v. Bowie, 515 F.2d 3, 9 (7th Cir. 1975); United States v. Higgans, 507 F.2d 808, 813 (7th Cir.1974); see also United States v. Magnano, 543 F.2d 431, 437 (2d Cir.1976), cert. denied, 429 U.S. 1091, 97 S.Ct. 1101, 51 L.Ed.2d 536 (1977); United States v. Tramunti, 513 F.2d 1087, 1105 (2d Cir.), cert. denied, 423 U.S. 832," }, { "docid": "10440277", "title": "", "text": "F.3d 767, 774 (7th Cir.1994). The Federal Rules of Evidence do not allow evidence of other crimes, wrongs, or acts to be admitted into evidence in order to show action in conformity therewith. Fed. R.Evid. 404(b). Here, the government’s evidence was not of other acts, but merely of Yusufu’s prior incarcerations, evidence that implies he committed other bad acts. Yet there was no suggestion to the jury that Yusufu was incarcerated earlier because he had committed crimes similar to this one, or that his earlier incarcerations made it more likely that he committed the charged crime. The Rules account for alternative bases for seeking to admit evidence of prior bad acts, allowing such evidence to be admitted to show, among other things, the opportunity to commit an act or preparation for committing the act, but only if the probative value of such use is not substantially outweighed by its unfairly prejudicial impact on the jury. Id.; Fed.R.Evid. 403; United States v. Lashmett, 965 F.2d 179, 184 (7th Cir.1992). Moreover, “[r]ule 404(b) permits the introduction of evidence of another crime, wrong, or act unless the sole purpose for the offer is to establish the defendant’s propensity for crime.” HANDBOOK of FedeRAL Evidence § 404.5 at 213 (West, 1991). We generally look at four factors to determine whether evidence of other crimes, wrongs, or acts should be admitted: whether 1) the evidence is directed toward establishing a matter in issue other than the defendant’s propensity to commit the crime charged; 2) the evidence shows that the other act is similar enough and close enough in time to be relevant to the matter in issue; 3) the evidence is sufficient to support a jury finding that the defendant committed the similar act; 4) the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice. See United States v. Shackleford, 738 F.2d 776, 779 (7th Cir.1984) (prongs 1, 2, and 4); Huddleston v. United States, 485 U.S. 681, 690-91, 108 S.Ct. 1496, 1501-02, 99 L.Ed.2d 771 (1988) (prong 3); see also Prevatte, 16 F.3d at 774. Here we examine" }, { "docid": "5502942", "title": "", "text": "stipulated transcript or to produce alternate versions of the conversations. See id. at 498. The appellants declined to prepare their own version of the conversations. After reviewing the tapes and the transcripts, we conclude that the district court did not abuse its discretion in determining that the government transcript was sufficiently accurate to allow its use by the jury. Paul and Daniel next contend that the district court erred in applying Rule 404(b) when it admitted evidence that Paul and Daniel engaged in a marijuana conspiracy in the 1970’s. Woods argues that the evidence of the Robinsons’ marijuana conspiracy prejudiced him. After considering the evidence and the appellants’ objections, the district court admitted the evidence to show the Robinsons’ “intent, preparation, plan, and knowledge.” We review a district court’s decision to admit evidence of a defendant’s prior crimes for an abuse of discretion. United States v. Chaimson, 760 F.2d 798, 808 (7th Cir.1985). In determining whether evidence of a defendant’s other crimes, wrongs, or acts is admissible we apply a four-part test. United States v. Lennartz, 948 F.2d 363, 366 (7th Cir.1991). That evidence may be admitted where: (1) the evidence is directed toward establishing a matter in issue other than the defendant’s propensity to commit the crime charged, (2) the evidence shows that the other act is similar enough and close enough in time to be relevant to the matter in issue, (3) the evidence is sufficient to support a jury finding that the defendant committed the similar act, and (4) the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice. Id. (quoting United States v. Whalen, 940 F.2d 1027, 1032 (7th Cir.), cert. denied, — U.S. -, 112 S.Ct. 403, 116 L.Ed.2d 352 (1991)). See also United States v. Shackleford, 738 F.2d 776, 779 (7th Cir.1984). The evidence of the marijuana conspiracy clearly satisfies the first element of the test. See Chaimson, 760 F.2d at 805 (where specific intent is an element of the crime charged, evidence of other acts may be introduced to establish that intent); United States v. Liefer, 778" }, { "docid": "8839945", "title": "", "text": "is charged. Fed.R.Evid. 404(b). The evidence may, however, be admissible to establish “motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” We employ a four-part test to determine whether evidence of prior conduct is admissible under Rule 404(b), taking into consideration the following factors: (1) the evidence is directed toward establishing a matter in issue other than the defendant’s propensity to commit the crime charged; (2) the evidence shows that the other act is similar enough and close enough in time to be relevant to the matter in issue; (3) the evidence is sufficient to support a jury finding that the defendant committed the similar act; and (4) the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice. United States v. Shackleford, 738 F.2d 776, 779 (7th Cir.1984). Rule 403 is also an exclusionary rule; it provides for the exclusion of relevant evidence that is unfairly prejudicial to the defendant. Fed.R.Evid. 403. “Evidence is unfairly prejudicial only if it will induce the jury to decide the case on an improper basis, commonly an emotional one, rather than on the evidence presented.” United States v. Zahursky, 580 F.3d 515, 525 (7th Cir.2009) (citing United States v. Harris, 536 F.3d 798, 809 (7th Cir.2008)). Baker argues that the trial court never considered the Shackleford four-part test or performed a balancing test for prejudice before allowing Keomala to testify. While Baker faults the district court for failing to orally recite its Rule 403 and Rule 404(b) findings, a district court is not under an obligation to make every evidentiary ruling orally; had Baker wanted an oral ruling, he should have objected on Rule 403 and Rule 404(b) grounds. Given this lack of action, it is easy to see why the district court did not undertake the oral analysis of Keomala’s testimony that Baker now desires. Nevertheless, we do believe that this evidence satisfies the four-part test, though Baker specifically takes issue with the second and fourth factors. With regard to the second factor, Baker contends that because there was “no evidence” of the" }, { "docid": "7464406", "title": "", "text": "correct in concluding that neither of Penson’s proposed instructions was necessary to comply with Xheka’s requirement that the instruction given cover the “essential points” of the applicable law. The instruction, as given, clearly indicated that if conspiracies other than the one in the indictment were found to have existed, they could not be the basis of a conviction. B. Challenges to Admission of Evidence The trial judge admitted evidence of pri- or criminal activity by both Penson and Surratt over their objections. Federal Rule of Evidence 404(b) provides: Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or fraud. This Circuit has established a four-part test to determine the admissibility of evidence under Rule 404(b). United States v. Shackleford, 738 F.2d 776, 779 (7th Cir.1984). Under this test prior bad act evidence may be admitted where (1) the evidence is directed toward establishing a matter in issue other than the defendant’s propensity to commit the crime charged, (2) the evidence shows that the other act is similar enough and close enough in time to be relevant to the matter in issue, (3) the evidence is sufficient to support a jury finding that the defendant committed the similar act, and (4) the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice. Review of a trial judge’s determination of the admissibility of evidence under Rule 404(b) is governed by the abuse of discretion standard. United States v. Troop, 890 F.2d 1393, 1401 (7th Cir.1989); United States v. Connelly, 874 F.2d 412, 415 (7th Cir.1989). 1. Defendant Surratt One of the government witnesses, Jeffrey Tuchband, testified about the arrangements that were made to locate trucks and truck drivers to transport the marijuana within the country. Tuchband stated that he knew of a man named Keith who in turn had a customer named Gene “who had a truck driver that had" }, { "docid": "20537034", "title": "", "text": "Rule 404(b) prohibits the admission of evidence of other crimes, wrongs, or acts for the purpose of proving a person’s character or propensity to behave in a certain way, but permits the use of this evidence for other purposes: (1) Prohibited Uses. Evidence of a crime, wrong, or other act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character. (2) Permitted Uses; ... This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. Fed.R.Evid. 404(b). Our circuit has long used a four-part test to determine when other-act evidence is admissible: To determine if such evidence is admissible, the district court must engage in a four-pronged analysis and evaluate whether (1) the evidence is directed toward establishing a matter in issue other than the defendant’s propensity to commit the crime charged, (2) the evidence shows that the other act is similar enough and close enough in time to be relevant to the matter in issue, (3) the evidence is sufficient to support a jury finding that the defendant committed the similar act, and (4) the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice. United States v. Zapata, 871 F.2d 616, 620 (7th Cir.1989) (citing United States v. Shackleford, 738 F.2d 776, 779 (7th Cir.1984) for parts (1), (2), and (4) of the test and Huddleston v. United States, 485 U.S. 681, 108 S.Ct. 1496, 99 L.Ed.2d 771 (1988), for part (3)). Multipart tests are commonplace in our law and can be useful, but sometimes they stray or distract from the legal principles they are designed to implement; over time misapplication of the law can creep in. This is especially regrettable when the law itself provides a clear roadmap for analysis, as the Federal Rules of Evidence generally do. We have noted this problem in the Rule 404(b) context before. Especially in drug cases like this one, other-act evidence is too often admitted almost" } ]

[ { "docid": "22553093", "title": "", "text": "The implied obligation of defendant’s intestate to pay his child for the use of her property remains. It was a valid contract, implied by the law before the statute began to run in 1866. Its nature and character were not changed by the lapse of two years, though the statute made that a valid defence to a suit on it. But this defence, a purely arbitrary creation of the law, fell with the repeal of the law on which it depended. It is much insisted that this right to defence is a vested right, and a right of property which is protected by the provisions of the Fourteenth Amendment. . It is to be observed that the word vested right is nowhere used in the Constitution, neither in the original instrument nor in any of the amendments to it. We understand very well what is meant by a vested right to real estate, to personal property, or to incorporeal hereditaments. But when we get beyond this, although vested rights may exist, they are better described by some more exact term, as the phrase itself is not one found in the language of the Constitution. We certainly do not understand that a right to defeat a just debt by the statute of limitations is a vested right, so as to be beyond legislative power in a proper case. The statutes of limitation, as often asserted and especially by this court, are founded in public needs and public policy — are arbitrary enactments by the law-making power. Tioga Railroad, v. Blossburg and Corning Railroad, 20 Wall. 131, 150. And other statutes, shortening the period or making it longer, which is necessary to its operation, have always been held to be within the legislative power until the bar is complete. The right does not enter into or become a part of the contract. No man promises to pay money with any view to being released from that obligation by lapse of time. It violates no right of his, therefore, when the legislature says, time shall be no bar, though such was the law" } ]

[ { "docid": "10910719", "title": "", "text": "of the plaintiff having become vested they were not affected by this repeal. See William Danzer & Co. v. Gulf R. R., 268 U. S. 633, 637, 45 S. Ct. 612, 69 L. Ed. 1126, and the contention of the plaintiff on this point must be sustained. One other question remains to be decided. Section 607 of the Revenue Act of 1928 ( 26 USCA § 2607) provided that a tax paid after the expiration of tho period of limitations should be considered an overpayment, and section 611 of the same act (26 USCA § 2611) qualified section 607 providing that, where a tax was assessed within the period of limitations, a plea in abatement filed, and collection stayed, the payment of the tax be fore or within, one year after the aet went into force “shall not he considered as- an overpayment under the provisions of section 607.” As before stated, we held in the Oak Worsted Mills Case and the Gotham Can Case that, where the tax had been assessed within the period provided by the statute, a plea in abatement filed, and the collection of the tax stayed, section 611 applied, and there could be no recovery of the tax paid unless it was an actual overpayment. But these decisions applied only to cases where the tax had been collected prior to the enactment of the 1926 statute. In a case like the one at bar, where the rights of the plaintiff had vested before the enactment of the 1928 aet, the enactment of section 611 of that act had no more effect on plaintiff’s rights than the repeal of section 1106(a) of the 1926 act. In accordance with these, conclusions judgment will be entered in favor of the plaintiff for the amount prayed in its petition, to wit,\"$45,197.74, with interest at the rate of 6 per cent, per annum from August 17,1926, until paid. It is so ordered. BOOTH, Chief Justice, and WILLIAMS, Judge, concur. LITTLETON, Judge (concurring). I concur in the result reached in the majority opinion, and I agree that section 1106 (a) of" }, { "docid": "452098", "title": "", "text": "to recover taxes from the collector, on the sole ground that payment was coerced after limitation had run. It seems to me that if his right to rely upon the statute as a defense may be destroyed by repeal or modification, his right to rely upon the statute as a basis for recovery may likewise be destroyed by repeal or modification. There can be no doubt that Congress had full power, immediately before the taxes were collected in this case, to have passed a law, denying to taxpayers situated as the'plaintiff was the right to rely upon the statute of limitations, although the statute had run at the time of the passage of such law. Neither ean there be any doubt of the soundness of the proposition that the collector, in collecting taxes, acts as an agent of the United States. Furthermore, it is well settled that where an agent, without precedent authority, has exercised, in the name of a principal, a power which the principal had the capacity to bestow, the principal may ratify and affirm the unauthorized act, and thus retroactively give it validity, when rights of third persons have not intervened. United States v. Heinszen & Co., 206 U. S. 370, 27 S. Ct. 742, 51 L. Ed. 1098, 11 Ann Cas. 688; Rafferty v. Smith, Bell & Co., 257 U. S. 226, 42 S. Ct. 71, 66 L. Ed. 208. In this case we have the defendant, as collector, acting as the agent of the United States. At a time when he was not authorized so to do, but at a time when the Congress of the United States had full authority to authorize him so to do, he collected, aHer limitation had run, the taxes involved in this case, and Congress had the power then, and has had that power at all times since then, to ratify the unauthorized collection, and that is what it did do, in effect, by the enactment of section 611. It is true, when the plaintiff paid the taxes under duress, after the running of limitation, a right accrued to" }, { "docid": "21627463", "title": "", "text": "right to retain the money pending the outcome of threatened litigation over the collection. The government has had the benefit of the collection. Yet, if the plaintiff’s theory is correct, Congress intentionally left collectors open to suit and judgment in such eases as the one at bar but denied them the right of reimbursement for any judgments thus obtained. It seems to me that the mere suggestion of the result of such a construction forces us to reject it. “I must therefore conclude that section 611 was intended by Congress to take away from those taxpayers who had filed claims in abatement of assessments made prior to June 2, 1924, and who had, as the result of filing such claims, secured a postponement of payment pending decision on the claims, and who had been forced after the running of limitation to pay the tax thus assessed, the right to rely upon the fact that collection had been forced after the running of limitation as a basis for recovering a refund, whether the suit for such recovery is against the collector who made same or directly against the United States.” My conclusion is that the plaintiff is not entitled to recover." }, { "docid": "20192732", "title": "", "text": "proceeding forbidden by law, a suit can be maintained to recover back the money so paid. Obviously, if this were not the ease, the statutes so violated would be practically nullified in tax eases, as the taxpayer cannot enjoin proceedings to collect the tax, but is compelled to bring suit to recover the money illegally taken from him. But no such situation is presented by the case at bar, and, as we think, there was no statute in force during the period involved which could possibly be construed as extinguishing the debt when the period of limitations had run. The argument made on behalf of plaintiff assumes that the ease at bar is one in which the government, after action to collect the tax was barred, initiated some kind of proceedings to obtain its payment. On the contrary, the plaintiff initiated proceedings to have money which belonged to him and was held by defendant applied on the tax debt. The direction to make the application was made before the expiration of the statute of limitations. It is true that the period of limitation as to a part of plaintiff’s taxes had expired when the application was made, but that does not alter the situation. The direction to apply the overpayments on the tax still unpaid had not been withdrawn. In the case of Stange v. United States, 282 U. S. 270, 51 S. Ct. 145, 75 L. Ed. 335, the Supreme Court, in affirming the decision of this court (68 Ct. Cl. 395), held that a waiver filed after the period of limitations had expired was not ineffective, and that, by reason of the waiver, money paid on a tax which was barred by the statute of limitations, could be retained by the government. Such a holding would not have been made if the Supreme Court considered that the debt had been completely extinguished by the statute of limitations. Language is quoted from the decision in Mascot Oil Co. v. United States, 282 U. S. 434, 436, 51 S. Ct. 196, 75 L. Ed. 444, which it is claimed supports" }, { "docid": "9441544", "title": "", "text": "to lay the tax and upon an unequivocal manifestation of the legislative intent to ratify the unauthorized collection. It is urged that section 611 evidences no such intent, that m any event, after the statutory bar has fallen, the taxpayer has a vested right to recover the taxes, and that to deprive him of this right constitutes a taking of property without due process of law. In my judgment, an examination of the three pertinent sections of the act of 1928 sufficiently indicates the intent to ratify the illegal collection and to prevent the return of taxes properly assessed, and, but for the limitation act, otherwise valid and due. Section 612 repeals as of its original date of enactment section 1106 (a) of the Revenue Act of 1926 which specifically provided that the running of the statute should extinguish the right as well as bar the remedy. Section 607 (26 USCA § 2607) provides that in the ordinary case of payment after the statute has run, such payment shall, be considered an overpayment and refunded or credited as such. Section 611 (26 USCA § 2611) exempts from the operation of section 607 eases, such as those at bar, in which a claim in abatement had been filed and collection de>layed. While no express mention is made of ratification, a reading of these three sections in the light of their purpose, as above stated, makes it abundantly clear that Congress intended to give to the collections already made (or to be made within a year) whatever validity it was empowered to give. Contrary to Clinton Iron & Steel Co. v. Hedner (D. C.) 30 F.(2d) 542, relied on by plaintiff, I agree with the views expressed by Judge Dawson in Wright & Taylor, Inc., v. Lucas, supra, as follows: “There is no merit in the plaintiff's suggestion that section 611 is only an inhibition against the Commissioner of Internal Revenue making refunds in such cases, but that it has no application in a suit against a collector such as the one here. Such a construction of this section would lead to'" }, { "docid": "8799680", "title": "", "text": "outstanding and this remedy it could not enforce. The city by the repeal of the act was not left without remedy in such cases. It could refuse to pay spurious warrants, and, if sued on them, defend on the ground they were spurious. All the right it lost by the repeal of the act was to cancel fraudulent warrants if any one saw fit to present them under the order calling them in for canceling and reissuance; and such an order could be made by the proper authorities and without a statute, and, if any one presented the warrants, the same action might be had as under the act; but, in either event, obedience to such an order could not be enforced. Nobody has a vested right in a remedy. All remedies cannot be withdrawn as to past contracts, for that would infringe upon the obligations of such contracts. But as long as remedies are left in force, what the remedy shall be is within the discretion of the lawmaking power. In Campbell v. Holt, 115 U. S. 620, 6 Sup. Ct. 209, 29 L. Ed. 483, the court held: “The repeal of a statute of limitations of actions on personal debt does not, as applied to a debtor, the right of action against whom is already barred, deprive him of his property in violation of the fourteenth amendment to the Constitution of the United States.” In that case the whole question of vested rights in remedies is ably discussed upon authority. In Percy v. Cockrill et al., 53 Fed. 872, 4 C. C. A. 73, the United States Circuit Court of Appeals for the Eighth Circuit held: “By the common law of Arkansas and of most other states, a husband has no vested interest in his wife’s choses in action which he has taken no steps to reduce to his possession; and the married woman’s act of 1873 (Mansf. Dig. § 4624), making such rights the sole property of the wife, and taking away all the husband’s interest therein, violates no constitutional right of the husband, although the marriage" }, { "docid": "8671928", "title": "", "text": "oven though the statute of limitations may have run. Exceptionally large amounts are involved. Accordingly, it is of utmost importance to provide that the payments already made should not be refunded. In order to prevent inequality, it is also provided that the amounts not yet paid may be collected within a year after the enactment of the new Act. “Your Committee appreciates the fact that this provision will probably he subjected to severe criticism by some of the taxpayers affected. However, it must be home in mind that the provision authorizes the retention and collection only of amounts properly due, and merely withdraws the defense of the statute of limitations. If it is determined that the amount paid is in excess of the proper tax liability, computed without regard to the statute of limitations, such excess will constitute an overpayment which may be refunded or credited as in the case of any other overpayment.” Report No. 2, 70th Cong., 1st Sess., p. 34. Under a fair construction we are of the opinion that the section as enacted into law expresses this intent and accordingly that under the admitted facts plaintiffs are entitled to a refund only in case they show that the assessment is invalid upon the merits. The further contention made is that so construed the statute is invalid because it purports to deprive plaintiffs of a vested right. But no vested right accrues to the taxpayer out of the running of the period of limitation for the collection of a valid tax. Rafferty v. Smith, Bell & Co., 257 U. S. 226, 42 S. Ct. 71, 66 L. Ed. 208; United States v. Heinszen & Co., 206 U. S. 370, 27 S. Ct. 742, 51 L. Ed. 1098, 11 Ann. Cas. 688; Collector v. Hubbard, 79 U. S. (12 Wall.) 1, 20 L. Ed. 272; Haight v. United States (C. C. A.) 22 F.(2d) 367; Campbell v. Holt, 115 U. S. 620, 6 S. Ct. 209, 29 L. Ed. 483; South & N. A. R. Co. v. Alabama, 101 U. S. 832, 25 L. Ed. 973; Beers v." }, { "docid": "10910713", "title": "", "text": "statute to the facts in the instant ease as distinguished from those in the two oases cited. In the Oak Worsted Mills Case and the Gotham Can Case, the tax, being collected before the enactment pf section 1106(a) of the aet of 1926, was still a liability of the taxpayer, although the statute of limitations had run against the remedy provided for its collection. The payment of the tax having been made upon this liability and before it was extinguished, the taxpayer had not “overpaid the tax” and in such cases section 1106 (a) provided that “no credit or .refund * * * shall he allowed.” But in the instant ease, by force of the same statute, the liability had been entirely extinguished when the payment was collected. Necessarily “the taxpayer has (had) overpaid the tax” for there was no tax owing at the time and no liability existed when the money was collected. The collector or Commissioner, therefore, took money which was not owing to the United States and for that reason could not belong to it after it had been received. After it had been, paid it was still the rightful property of the taxpayer. It is plain, therefore, that the question of whether a vested right had been acquired is quite different from what it was in the Gotham Can Case, nor does it depend upon the statute of limitations as it did in the Oak Worsted Mills Case. The statute, when applied to the facts in the instant ease, did not merely put a limitation on the collection of the tax, but it completely extinguished the liability, and this was done before the tax was collected. Under such circumstances we think the plaintiff obtained a vested right which could not be taken away by the subsequent repeal of sec tion 1106(a) as of the day upon which it was enacted. Although tho decisions in the Oak Worsted Mills Case and the Gotham Can Case are only applicable to cases where the taxes were collected after tho expiration of the period of limitations but before the enactment" }, { "docid": "5355470", "title": "", "text": "Co., 20 Wall. 323, 22 L. Ed. 348; Brushaber v. Union Pac. R. R. Co., 240 U. S. 1, 36 S. Ct. 236, 60 L. Ed. 493, L. R. A. 1917D, 414, Ann. Cas. 1917B, 713; Rafferty v. Smith, Bell & Co., Ltd., 257 U. S. 226, 42 S. Ct. 71, 66 L. Ed. 208; Smallwood v. Gallardo, 275 U. S. 56, 48 S. Ct. 23, 72 L. Ed. 152; Wright & Taylor, Inc., v. Lucas, supra; Regla Coal Co. v. Bowers, supra; Oak Worsted Mills v. United States (Ct. Cl.) 36 F.(2d) 529. In the Regla Coal Co. Case, Judge Mack observed: “Plaintiff’s final contention that, inasmuch as the statute had run at the time of the collection, Congress was then and is still without the constitutional power to remove the bar, cannot be sustained. It is well settled that there is no vested right to rely upon a statute of limitation to defeat a debt or other personal obligation; the Legislature which imposed the bar may remove it. Campbell v. Holt, 115 U. S. 620, 6 S. Ct. 209, 29 L. Ed. 483; cf. Decker v. Pouvailsmith Corp., N. Y. Ct. App., decided October 15, 1929, reported in 252 N. Y. 1, 168 N. E. 442. That because of sovereign grace the expiration of the statutory period not only gave the taxpayer a defense, but also a right to recover taxes paid thereafter, does not, in my judgment, change the result. Nor is this a case like Davis v. Mills, 194 U. S. 451, 24 S. Ct. 692, 48 L. Ed. 1067, or Danzer & Co. v. Gulf & S. I. R. R. Co., 268 U. S. 633, 45 S. Ct. 612, 69 L. Ed. 1126, in which the grant of a right is conditioned upon its being exercised within a prescribed period; for the right of the United States to these taxes existed prior to and independent of the grant of a limitation statute for the repose of the taxpayer. This result is identical with that reached by the Circuit Court of Appeals for the Ninth Circuit" }, { "docid": "9441543", "title": "", "text": "L. Ed. 743. In view of the prior legislation, the departmental regulations and practice thereunder, and the statements in the Committee reports, I am entirely dear that section 611 should be construed as applicable to those eases in which the filing of a claim in abatement had in fact resulted in an administrative delay in collecting duly assessed taxes, even though no formal “stay” had been granted.- 3. I come then to a consideration of the constitutionality of section 611 as applied to the eases at bar. It is well settled that Congress has the power to ratify, by subsequent legislation, an unauthorized and illegal tax collection so as to give it retroactive validity. United States v. Heinszen & Co., 206 U. S. 370, 27 S. Ct. 742, 51 L. Ed. 1098, 11 Ann. Cas. 688; Rafferty v. Smith, Bell & Co., 257 U. S. 226, 42 S. Ct. 71, 66 L. Ed. 208. But plaintiff insists that this power is conditioned both upon the power of Congress at the time of the unauthorized collection to lay the tax and upon an unequivocal manifestation of the legislative intent to ratify the unauthorized collection. It is urged that section 611 evidences no such intent, that m any event, after the statutory bar has fallen, the taxpayer has a vested right to recover the taxes, and that to deprive him of this right constitutes a taking of property without due process of law. In my judgment, an examination of the three pertinent sections of the act of 1928 sufficiently indicates the intent to ratify the illegal collection and to prevent the return of taxes properly assessed, and, but for the limitation act, otherwise valid and due. Section 612 repeals as of its original date of enactment section 1106 (a) of the Revenue Act of 1926 which specifically provided that the running of the statute should extinguish the right as well as bar the remedy. Section 607 (26 USCA § 2607) provides that in the ordinary case of payment after the statute has run, such payment shall, be considered an overpayment and refunded" }, { "docid": "452095", "title": "", "text": "by that section were made, the regulation and practice of the Treasury Department with reference to claims in abatement under those acts, and the purpose sought to be accomplished, as shown by the Committee Report, supra, there cannot be any doubt that it was the purpose of Congress through this section to prohibit refunds being made from the Treasury in eases similar to. the one at bar. There is no merit in the plaintiff’s suggestion that section 611 is only an inhibition against the Commissioner of Internal Revenue making refunds in such cases, but that it has no application in a suit against a collector such as the one here. Such a construction of this section would lead to an unconscionable result. When he collected the tax, the collector was required by law to immediately pay same into the Treasury. He had no right to retain the money pending the outcome of threatened litigation over the collection. \"The government has had the benefit of the collection. Yet, if the plaintiff’s theory is correct, Congress intentionally left collectors open to suit and judgment in such cases as the one at bar but denied them the right of reimbursement for any judgments thus obtained. It seems to me that the mere suggestion of the result of such a construction forces us to reject it. I must therefore conclude that section 611 was intended by Congress to take away from those taxpayers who had filed claims in abatement of assessments made prior to June 2, 1924, and who had, as the result of filing such claims, secured a postponement of payment pending decision on the claims, and who had been forced after the running of limitation to pay the tax thus assessed, the right to rely upon the fact that collection had been forced after the running of limitation as a basis’ for recovering a refund, whether the suit for such recovery is against the collector who made same or directly against the United States. Having reached this conclusion, it remains to be determined if the statute so construed ■ deprives plaintiff of" }, { "docid": "9441546", "title": "", "text": "an unconscionable result. When he collected the tax, the collector was required by law to immediately pay same into the Treasury. He had no right to retain the money pending the outcome of threatened litigation over the collection. The government has had the benefit of the collection. Yet, if the plaintiff's theory is correct, Congress intentionally left collectors open to suit and judgment in such eases as the one at bar * * ®. It seems to me that the mere suggestion of the result of such a construction forces us to reject it.” To hold that the Commissioner is prohibited from making refunds, but that the collector may nevertheless be sued, would produce an anomalous situation, in view of the decisions that, though in form such suit is against the collector, in substance it is an aetion against the United States within the Tucker Act (24 Stat. 505). United States v. Emery, Bird, Thayer Realty Co., 237 U. S. 28, 32, 35 S. Ct. 499, 59 L. Ed. 825. Plaintiff's final contention that, inasmuch as the statute had run at the time of the collection, Congress was then and is still without the constitutional power to remove the bar, cannot be sustained. It is well settled that there is no vested right to rely upon a statute of limitation to defeat a debt or other personal obligation; the Legislature which imposed the bar may remove it. Campbell v. Holt, 115 U. S. 620, 6 S. Ct. 209, 29 L. Ed. 483; cf. Decker v. Pouvailsmith Corp., N. Y. Ct. App., decided October 15,1929, reported in 252 N. Y. 1, 168 N. E. 442. That because of sovereign grace the expiration of the statutory period not only gave the taxpayer a defense, biit also a right to recover taxes paid thereafter, does not, in my judgment, change the result. Nor is this a ease like Davis v. Mills, 194 U. S. 451, 24 S. Ct. 692, 48 L. Ed. 1067, or Danzer & Co. v. Gulf & S. I. R. R. Co., 268 U. S. 633, 45 S. Ct. 612," }, { "docid": "9441547", "title": "", "text": "as the statute had run at the time of the collection, Congress was then and is still without the constitutional power to remove the bar, cannot be sustained. It is well settled that there is no vested right to rely upon a statute of limitation to defeat a debt or other personal obligation; the Legislature which imposed the bar may remove it. Campbell v. Holt, 115 U. S. 620, 6 S. Ct. 209, 29 L. Ed. 483; cf. Decker v. Pouvailsmith Corp., N. Y. Ct. App., decided October 15,1929, reported in 252 N. Y. 1, 168 N. E. 442. That because of sovereign grace the expiration of the statutory period not only gave the taxpayer a defense, biit also a right to recover taxes paid thereafter, does not, in my judgment, change the result. Nor is this a ease like Davis v. Mills, 194 U. S. 451, 24 S. Ct. 692, 48 L. Ed. 1067, or Danzer & Co. v. Gulf & S. I. R. R. Co., 268 U. S. 633, 45 S. Ct. 612, 69 L. Ed. 1126, in which the grant of a right is conditioned upon its being exercised within a prescribed period; for the right of the United States to these taxes existed prior to and independent of the grant of a limitation statute for the repose of the taxpayer. This result is identical with that reached by the Circuit Court of Appeals for the Ninth Circuit in Huntley v. Gile, 32 F.(2d) 857, and by Judge Dayson in Wright & Taylor, Inc., v. Lucas, supra, in both of which cases the constitutionality of section 611 (26 USCA § 2611) was sustained. No injustice to the taxpayer results from such construction. The purpose of the limitation statute was to protect the taxpayer against the assertion of stale governmental claims at a time when most of the evidence bearing on the correctness of the assessment would have been lost. This purpose is certainly satisfied where, as here, the evidence relating to the assessment has been preserved in the claim for abatement. 4. The objection that section 611" }, { "docid": "18409482", "title": "", "text": "intention of the lawmakers was that the statute should apply to taxes collected after the statute of limitations had run. Objection has been made that the construction contended for by defendant is retroactive,. and that a statute ought not to be construed as having retroactive application, unless it appears that Congress had such intent. The provisions of the statute under consideration are retroactive in form, and, if anything further is need to show the intent of the legislative body enacting it, it will be found in that portion of the report accompanying the act of 1928 whieh has already been set out in this opinion. The report makes it clear that the sole purpose of the provision was to obviate the effect of the decision in tbe case of Bowers v. New York & Albany Lighterage Co., supra, and to apply to eases arising under prior acts. One other point remains to be decided. It is further contended that, if the statute is construed in accordance with our holding, it is unconstitutional and invalid, for the reason that it would deprive plaintiff of a vested right. If plaintiff acquired such a right, it was by virtue of the statute of limitations. In Huntley v. Gile & Jenks (C. C. A. 9th Dist.) supra, it is said, “no vested right accrues to the taxpayer out of the running of the period of limitation for the collection of a valid tax,” citing Rafferty v. Smith, Bell & Co., 257 U. S. 226, 42 S. Ct. 71, 66 L. Ed. 208; United States v. Heinszen & Co., 206 U. S. 370, 27 S. Ct. 742, 51 L. Ed. 1098, 11 Ann. Cas. 688; Collector v. Hubbard, 12 Wall. 1, 20 L. Ed. 272; Haight v. United States (C. C. A.) 22 F.(2d) 367; Campbell v. Holt, 115 U. S. 620, 6 S. Ct. 209, 29 L. Ed. 483; Railroad Co. v. Alabama, 101 U. S. 832, 25 L. Ed. 973; Beers v. Arkansas, 20 How. 527, 15 L. Ed. 991; West Side Co. v. Pittsburgh Co., 219 U. S. 92, 31 S. Ct." }, { "docid": "21627462", "title": "", "text": "v. Indiana Steel Co., 257 U. S. 1, 42 S. Ct. 1, 66 L. Ed. 99; International Paper Co. v. Burrill (D. C.) 260 F. 664), and is not an action against the United States for the recovery of internal revenue paid to the government. Plaintiff’s cause of action against the collector arose out of the illegal act of the defendant collector in collecting a tax barred by the running of the statute of limitations. It was the purpose of section 611 (26 USCA § 2611) to ratify and legalize illegal collections made under the conditions that this collection was made and to deny the taxpayer the right to recover the tax so paid to the government. By thus legalizing the act of the defendant collector in making the collection, the plaintiff’s right of action was destroyed. I agree with the statement made by Judge Dawson in Wright & Taylor v. Lucas, Collector, supra: “When he collected the tax, the collector was required by law to immediately pay same into the Treasury. He had no right to retain the money pending the outcome of threatened litigation over the collection. The government has had the benefit of the collection. Yet, if the plaintiff’s theory is correct, Congress intentionally left collectors open to suit and judgment in such eases as the one at bar but denied them the right of reimbursement for any judgments thus obtained. It seems to me that the mere suggestion of the result of such a construction forces us to reject it. “I must therefore conclude that section 611 was intended by Congress to take away from those taxpayers who had filed claims in abatement of assessments made prior to June 2, 1924, and who had, as the result of filing such claims, secured a postponement of payment pending decision on the claims, and who had been forced after the running of limitation to pay the tax thus assessed, the right to rely upon the fact that collection had been forced after the running of limitation as a basis for recovering a refund, whether the suit for such" }, { "docid": "17469585", "title": "", "text": "RUDKIN, District Judge. This is an action against an interstate carrier to recover damages for failure to furnish cars for the shipment of apples. A demurrer has been interposed to the complaint, on the ground that the action was not commenced within the time limited by law. It is conceded on the part of the plaintiff that the claim in suit is barred by the state statute of limitations, independent of the following provision found in the Transportation Act of 1920 (41 Stat. 462, c. 91, tit. 2, § 206[f]): “The period of federal control shall not he computed as a part of the periods of limitation in actions against carriers or in claims for reparation to the Commission for causes of action arising prior to federal control.” \"On the other hand, it is conceded on the part of the defendant that the claim is not barred if the above provision is constitutional. The right of a state to repeal a statute of limitations, or extend the period within which actions may be brought, even after the bar of the statute has become complete, is well settled. Campbell v. Holt, 115 U. S. 620, 6 Sup. Ct. 209, 29 L. Ed. 483. The rule is, of course, subject to the limitation that the Legislature may not, by repeal or extension, divest property rights, as where the title to property passes from one person to another by adverse possession or by mere lapse of time. There may be other exceptions, but with these we are not now concerned. It is equally well settled that Congress may, as a war measure, extend the period of limitation fixed by the laws of the several states. Such was the decision of the Supreme Court in Stewart v. Kahn, 11 Wall. 493, 20 L. Ed. 176, based on the Act of June 11, 1864 (13 Staff 123, c. 118), which provided that time during which certain persons were beyond the reach of judicial process should not he taken as any part of the time limited by law for the commencement of actions. True, that act" }, { "docid": "5355469", "title": "", "text": "its collection was the. expiration of the applicable period of limitation. Otherwise the section is without apparent meaning.” Huntley v. Gile, supra, at page 858 of 32 F.(2d). Whether we regard section 611 as operating to ratify unauthorized acts (Wright & Taylor, Inc., v. Lucas, supra; Regla Coal Co. v. Bowers, supra) or to remove the bar of' the statute of limitations in certain eases are relatively unimportant considerations. The substance of the matter is that Congress by the section undertook to withdraw from a taxpayer the right to reclaim taxes, otherwise rightfully due, which had previously been held recoverable solely on the ground that they had been paid, or collected, after the statute had run against the collection. Wright & Taylor, Inc., v. Lucas, supra. The petitioner doubts the power of Congress to thus deprive a taxpayer of his rights of recovery which existed at the time of the enactment of the Revenue Act of 1928. I do not think any doubt can be seriously entertained in view of authorities. Stockdale v. Atlantic Ins. Co., 20 Wall. 323, 22 L. Ed. 348; Brushaber v. Union Pac. R. R. Co., 240 U. S. 1, 36 S. Ct. 236, 60 L. Ed. 493, L. R. A. 1917D, 414, Ann. Cas. 1917B, 713; Rafferty v. Smith, Bell & Co., Ltd., 257 U. S. 226, 42 S. Ct. 71, 66 L. Ed. 208; Smallwood v. Gallardo, 275 U. S. 56, 48 S. Ct. 23, 72 L. Ed. 152; Wright & Taylor, Inc., v. Lucas, supra; Regla Coal Co. v. Bowers, supra; Oak Worsted Mills v. United States (Ct. Cl.) 36 F.(2d) 529. In the Regla Coal Co. Case, Judge Mack observed: “Plaintiff’s final contention that, inasmuch as the statute had run at the time of the collection, Congress was then and is still without the constitutional power to remove the bar, cannot be sustained. It is well settled that there is no vested right to rely upon a statute of limitation to defeat a debt or other personal obligation; the Legislature which imposed the bar may remove it. Campbell v. Holt, 115 U." }, { "docid": "18409483", "title": "", "text": "the reason that it would deprive plaintiff of a vested right. If plaintiff acquired such a right, it was by virtue of the statute of limitations. In Huntley v. Gile & Jenks (C. C. A. 9th Dist.) supra, it is said, “no vested right accrues to the taxpayer out of the running of the period of limitation for the collection of a valid tax,” citing Rafferty v. Smith, Bell & Co., 257 U. S. 226, 42 S. Ct. 71, 66 L. Ed. 208; United States v. Heinszen & Co., 206 U. S. 370, 27 S. Ct. 742, 51 L. Ed. 1098, 11 Ann. Cas. 688; Collector v. Hubbard, 12 Wall. 1, 20 L. Ed. 272; Haight v. United States (C. C. A.) 22 F.(2d) 367; Campbell v. Holt, 115 U. S. 620, 6 S. Ct. 209, 29 L. Ed. 483; Railroad Co. v. Alabama, 101 U. S. 832, 25 L. Ed. 973; Beers v. Arkansas, 20 How. 527, 15 L. Ed. 991; West Side Co. v. Pittsburgh Co., 219 U. S. 92, 31 S. Ct. 196, 55 L. Ed. 107; Brushaber v. U. P. R. R. Co., 240 U. S. 1, 36 S. Ct. 236, 60 L. Ed. 493, L. R. A. 1917D, 414, Ann. Cas. 1917B, 713; Lynch v. Hornby, 247 U. S. 339, 343, 38 S. Ct. 543, 62 L. Ed. 1149. These authorities would seem to dispose of the point last considered, but, before concluding, attention is especially directed to. another rule which, in our opinion, effectually precludes this court from considering plaintiff’s claim. Nothing is better settled than the principle that the legislative branch of the government has complete right and authority to determine when, how, and where the government shall be sued, and whether it can be sued at all. If Congress sees fit to provide that a suit cannot be maintained for taxes paid, it is clear (at least where the taxes were rightfully imposed) that they cannot be recovered. “Where a statute creates a right and provides a special remedy, that remedy is exclusive.” United States v. Babcock, 250 U. S. 328, 331," }, { "docid": "452097", "title": "", "text": "its property rights, in violation of the Fifth Amendment to the Federal Constitution, as contended by the plaintiff. It is well settled that no one has a vested right to rely upon a statute of limitation to defeat a debt or other personal obligation. The Legislature which gave the right may take it away, even after the bar has become complete. Campbell v. Holt, 115 U. S. 620, 6 S. Ct. 209, 29 L. Ed. 483. If this suit were turned around, and were one by the United States against the plaintiff, to collect the tax involved here, the plaintiff certainly could not be heard to plead a statute of limitation formerly in force, but which had been repealed before the bringing of the suit, even though the bar under the former statute was complete prior to its repeal and prior to filing the suit. If a taxpayer has no vested interest in the defense of the statute of limitation, it is difficult to understand how he ean have any vested interest in the right to recover taxes from the collector, on the sole ground that payment was coerced after limitation had run. It seems to me that if his right to rely upon the statute as a defense may be destroyed by repeal or modification, his right to rely upon the statute as a basis for recovery may likewise be destroyed by repeal or modification. There can be no doubt that Congress had full power, immediately before the taxes were collected in this case, to have passed a law, denying to taxpayers situated as the'plaintiff was the right to rely upon the statute of limitations, although the statute had run at the time of the passage of such law. Neither ean there be any doubt of the soundness of the proposition that the collector, in collecting taxes, acts as an agent of the United States. Furthermore, it is well settled that where an agent, without precedent authority, has exercised, in the name of a principal, a power which the principal had the capacity to bestow, the principal may ratify" }, { "docid": "452096", "title": "", "text": "left collectors open to suit and judgment in such cases as the one at bar but denied them the right of reimbursement for any judgments thus obtained. It seems to me that the mere suggestion of the result of such a construction forces us to reject it. I must therefore conclude that section 611 was intended by Congress to take away from those taxpayers who had filed claims in abatement of assessments made prior to June 2, 1924, and who had, as the result of filing such claims, secured a postponement of payment pending decision on the claims, and who had been forced after the running of limitation to pay the tax thus assessed, the right to rely upon the fact that collection had been forced after the running of limitation as a basis’ for recovering a refund, whether the suit for such recovery is against the collector who made same or directly against the United States. Having reached this conclusion, it remains to be determined if the statute so construed ■ deprives plaintiff of its property rights, in violation of the Fifth Amendment to the Federal Constitution, as contended by the plaintiff. It is well settled that no one has a vested right to rely upon a statute of limitation to defeat a debt or other personal obligation. The Legislature which gave the right may take it away, even after the bar has become complete. Campbell v. Holt, 115 U. S. 620, 6 S. Ct. 209, 29 L. Ed. 483. If this suit were turned around, and were one by the United States against the plaintiff, to collect the tax involved here, the plaintiff certainly could not be heard to plead a statute of limitation formerly in force, but which had been repealed before the bringing of the suit, even though the bar under the former statute was complete prior to its repeal and prior to filing the suit. If a taxpayer has no vested interest in the defense of the statute of limitation, it is difficult to understand how he ean have any vested interest in the right" } ]

[ { "docid": "16668357", "title": "", "text": "secondarily-affected workers. The Roosevelt Workers have once more moved for judgment on agency record, and the matter is fully briefed. II. Standard of Review Judicial review of a Labor Department determination denying certification of eligibility for trade assistance benefits is confined to the administrative record. See, e.g., Former Employees of Champion Aviation v. Herman, 23 CIT 349, 350, (citing 28 U.S.C. § 2640(c) (1999) and Int'l Union v. Reich, 22 CIT 712, 716, 20 F. Supp. 2d 1288, 1292 (1998)). The agency’s determination must be sustained if it is supported by substantial evidence in the record and is otherwise in accordance with law. 19 U.S.C. § 2395(b) (1994); Former Employees of Swiss Indus. Abrasives v. United States, 17 CIT 945, 947, 830 F. Supp. 637, 639 (“Swiss Indus. Abrasives F) (citing Former Employees of General Elec. Corp. v. U.S. Dep’t of Labor, 14 CIT 608, 611 (1990)). The Labor Department’s findings of fact are thus conclusive if they are supported by substantial evidence. See Former Employees of Galey & Lord Indus., Inc. v. Chao, 26 CIT_,_, 219 F. Supp.2d 1283, 1285-86 (2002) (citation omitted). However, substantial evidence is more than a “mere scintilla”; it must be enough to reasonably support a conclusion. Id. at 1286 (citing Ceramica Regiomontana, S.A. v. United States, 10 CIT 399, 405, 636 F. Supp. 961, 966 (1986), aff’d, 810 F.2d 1137 (1987)). And “[a]n assessment of the substantiality of record evidence must take into account whatever else in the record fairly detracts from its weight.” Former Employees of Swiss Indus. Abrasives v. United States, 19 CIT 649, 651 (1995) (citing Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951)) (“Swiss Indus. Abrasives II\"). Moreover, all rulings based on the agency’s findings of fact must be “in accordance with the statute and not * * * arbitrary and capricious”; to that end, “the law requires a showing of reasoned analysis.” Gen’l Elec. Corp., 14 CIT at 611 (quoting Int'l Union v. Marshall, 584 F.2d at 396 n.26). In short, although it is clear that the scope of review here is narrow, and that a court" } ]

[ { "docid": "17283267", "title": "", "text": "347, 350, 117 S.Ct. 849, 136 L.Ed.2d 818 (1997) (examining “Irwin’s negatively phrased question: Is there good reason to believe that Congress did not want the equitable tolling doctrine to apply?”); Irwin, 498 U.S. at 95, 111 S.Ct. 453. Defendant has produced no such evidence. Previous court decisions have repeatedly allowed equitable tolling in TAA cases. See, e.g., Former Employees of Sonoco Prods. Co. v. Chao, 372 F.3d 1291, 1296-98 (Fed.Cir.2004) (holding sixty-day time limit for filing suit in labor TAA cases may be equitably tolled); Former Employees of Quality Fabricating, Inc. v. U.S. Sec. of Labor, 27 CIT-, -, 259 F.Supp.2d 1282, 1285-86 (2003) (equitably tolling the statute of limitations in TAA case where Department of Labor made misrepresentations to plaintiff about how she was to obtain notice of final determination); Former Employees of Siemens Info. Comm. Networks, Inc. v. Herman, 24 CIT 1201, 1208, 120 F.Supp.2d. 1107, 1113 (2000) (“Finally, the relevant legislative history fails to disclose any intent on the part of Congress to prohibit equitable tolling. Indeed, the remedial purpose of the trade adjustment assistance program supports the conclusion that equitable tolling is available in this context.”) (citation omitted). The Court notes that the precise issue in this case is one of first impression in the CIT. No court has ruled on whether equitable tolling is available with respect to an applicant’s failure to comply with 19 U.S.C. § 2401e(a)(l)’s ninety-day statutory deadline. The previous cases have all addressed the availability of equitable tolling in instances where plaintiffs have failed to commence a case in the CIT within sixty days of the reviewable determination as required by 19 U.S.C. § 2395(a). See 19 U.S.C. § 2395(a) (2005) (“[A plaintiff] may, within sixty days after notice of such determination, commence a civil action in the United States Court of International Trade for review of such determination.”). However, the Court sees no reason why this distinction should occasion a different application of the equitable tolling standards. The language and structure of 19 U.S.C. § 2401e are not suggestive of any Congressional intent to limit the equitable tolling doctrine." }, { "docid": "8211140", "title": "", "text": "20 and 26 above, the Workers' request for reconsideration further alleged for the first time that BMC products, and product components, were being imported to replace those historically produced at BMC’s Houston facility. However, the Labor Department made no attempt to investigate that allegation until after this action had been filed. Compare A.R. 53 with C.A.R. 55 and A.R. 56-59. . The Labor Department thus failed to question BMC about the specific criteria that the agency was assertedly applying at the time in cases such as this—i.e., whether the company's software is mass-replicated on physical media (such as CDs, tapes, or diskettes) and whether it is widely marketed and commercially available {e.g., packaged for \"off-the-shelf\" sale). Compare IBM I, 29 CIT at -, 387 F.Supp.2d at 1351 (because agency obviously knows \"the sometimes esoteric criteria” for TAA certification—\"and the affected workers do not”—\"it is incumbent upon Labor to take the lead in pursuing the relevant facts”). . See also Ameriphone, 27 CIT at -, 288 F.Supp.2d at 1359 (citing Marathon Ashland I, 26 CIT at 744-45, 215 F.Supp.2d at 1352-53 (Labor Department’s reliance on employer's conclusory assertions concerning \"production” constituted impermissible abdication of agency's duty to interpret TAA statute and to define terms used in it)). . Thus, statements “that are inconsistent, uncorroborated, not entirely based on personal knowledge, and'possibly biased do not constitute substantial evidence.” Former Employees of Tyco Toys, Inc. v. Brock, 12 CIT 781, 782-83 (1988). See also IBM., 29 CIT at - n. 27, 403 F.Supp.2d at 1332 n. 27; Ameriphone, 27 CIT at - n. 8, 288 F.Supp.2d at 1359 n. 8; Chevron I, 26 CIT at 1283 n. 9, 245 F.Supp.2d at 1326 n. 9 (and cases cited there); Former Employees of Pittsburgh Logistics Sys., Inc. v. U.S. Sec’y of Labor, 27 CIT -, -, 2003 WL 716272 at * 6 (2003) (“Pittsburgh Logistics I”) (citing Former Employees of Shaw Pipe v. U.S. Sec’y of Labor, 21 CIT 1282, 1289, 988 F.Supp. 588, 592 (1997)); Former Employees of Oxford Auto. U.A.W. Local 2088 v. U.S. Dep’t of Labor, 27 CIT -, - & n." }, { "docid": "16714453", "title": "", "text": "Act of 1974. 68 Fed. Reg. 60,120 (Oct. 21, 2003). The Workers have advised that they are satisfied with that certification. Accordingly, with the observations and clarifications set forth below, the Labor Department’s Final Corrected Remand Determination is sustained. I. Background A. The Trade Adjustment Assistance Laws Modeled generally on the trade adjustment assistance program under the Trade Act of 1974, 19 U.S.C. § 2271 et seq. (2000), the NAFTA-TAA program entitles certain workers whose job losses are attributable to increased import competition from — or shifts in production to — Canada or Mexico to receive benefits including employment services, appropriate training, job search and relocation allowances, and income support payments. 19 U.S.C. § 2331 (2000). See generally Former Employees of Chevron Prods. Co. v. U.S. Sec’y of Labor, 26 CIT_,_, 245 F. Supp. 2d 1312, 1317-18 (2002) (“Chevron F). The trade adjustment assistance laws are remedial legislation and, as such, are to be construed broadly to effectuate their intended purpose. See generally Woodrum v. Donovan, 5 CIT 191, 198, 564 F. Supp. 826, 832 (1983) (citing United Shoe Workers of Am. v. Bedell, 506 F.2d 174, 187 (D.C. Cir. 1974)), aff’d, 737 F.2d 1575 (Fed. Cir. 1984). See also Former Employees of Champion Aviation Prods. v. Herman, 23 CIT 349, 352 (1999) (citations omitted) (NAFTA-TAA statute is remedial legislation, to be construed broadly); Chevron I, 26 CIT at_, 245 F. Supp. 2d at 1318 (citations omitted) (same). Moreover, both “because of the ex parte nature of the certification process, and the remedial purpose of [the statutes], the [Labor Department] is obliged to conduct [its] investigation with the utmost regard for the interests of the petitioning workers.” Stidham v. U.S. Dep’t of Labor, 11 CIT 548, 551, 669 F. Supp. 432, 435 (citing Abbott v. Donovan, 7 CIT 323, 327-28, 588 F. Supp. 1438, 1442 (1984) (quotations omitted)). Thus, while the Labor Department is vested with considerable discretion in the conduct of its investigation of trade adjustment assistance claims, “there exists a threshold requirement of reasonable inquiry.” Former Employees of Hawkins Oil and Gas, Inc. v. U.S. Sec’y of Labor," }, { "docid": "9592614", "title": "", "text": "Opinion CARMAN, Chief Judge. This case is before the Court following remand to the United States Department of Labor (“Labor” or “Department”) based on this Court’s previously finding the Secretary’s determination that plaintiffs were ineligible for certification to receive trade adjustment assistance benefits was not supported by substantial evidence on the record and was not otherwise in accordance with law. See Former Employees of Shaw Pipe, Inc. v. United States, 957 F.Supp. 239, 244 (CIT 1997) (“FEO Shaw Pipe”) (remanding matter to Labor with instructions to determine “whether plaintiffs ‘create or manufacture a tangible commodity, or transform it into a new and different article’”) (citation omitted). Pursuant to this Court’s order, Labor has filed a Supplemental Administrative Record providing further support for its determination that plaintiffs are not eligible for certification to receive trade adjustment assistance benefits. Plaintiffs assert the Supplemental Administrative Record does not contain' substantial evidence supporting the Secretary’s determination and move this Court to vacate Labor’s determination and remand this matter once again to the Department for further consideration and redetermination. Defendant asserts the Department of Labor’s determination is supported by substantial evidence on the record and should be affirmed by this Court. The Court has jurisdiction over this matter' pursuant to 28 U.S.C. § 1581(d) (1994), and for the reasons set forth below grants defendant’s Motion for Judgment Upon the Agency Record. background Shaw Pipe, Incorporated (“Shaw Pipe”) closed its pipe coating operations in High-spire, Pennsylvania on August 12, 1994, resulting in a’ group of approximately thirty-five workers losing their jobs. On January 3, 1995, three former employees filed a petition with the Department of Labor on the behalf of all the separated employees seeking certification to receive trade adjustment assistance benefits. Plaintiffs characterize Shaw Pipe’s Highspire, Pennsylvania facility as having produced “small diameter steel pipe coated with polyethylene coating” and “large diameter steel pipe coated with concrete coating.” Admin. R. at 1. Plaintiffs’ petition for certification to receive trade adjustment assistance benefits was denied and plaintiffs appealed the Secretary’s determination to this Court. On January 9, 1997, this Court found the Department of Labor’s determination" }, { "docid": "8211025", "title": "", "text": "production to—other countries, by helping those workers “learn the new skills necessary to find productive employment in a changing American economy.” Former Employees of Chevron Prods. Co. v. U.S. Sec’y of Labor, 26 CIT 1272, 1273, 245 F.Supp.2d 1312, 1317 (2002) (“Chevron I”) (quoting S.Rep. No. 100-71, at 11 (1987)). As expanded in 2002, today’s TAA pro gram entitles eligible workers to receive benefits which may include employment services (such as career counseling, resume-writing and interview skills workshops, and job referral programs), vocational training, job search and relocation allowances, income support payments (known as “Trade Readjustment Allowance” or “TRA” payments), and a Health Insurance Coverage Tax Credit. See generally 19 U.S.C. § 2272 et seq. (2000 & Supp. II 2002). Since 1974, the Labor Department has been entrusted with the administration of the trade adjustment assistance program. The trade adjustment assistance laws are remedial legislation and, as such, are to be construed broadly to effectuate their intended purpose. UAW v. Mar- shall, 584 F.2d at 396 (noting the “general remedial purpose” of TAA statute, and that “remedial statutes are to be liberally construed”). See also Fortin v. Marshall, 608 F.2d at 526, 529 (same); Usenj v. Whitin Machine Works, Inc., 554 F.2d 498, 500, 502 (1st Cir.1977) (emphasizing “remedial” purpose of TAA statute). Moreover, both “[b]ecause of the ex parte nature of the certification process, and the remedial purpose of the [TAA] program,” the Labor Department is obligated to “conduct [its] investigation with the utmost regard for the interest of the petitioning workers.” Local 167, Int’l Molders and Allied Workers’ Union, AFL-CIO v. Marshall, 643 F.2d 26, 31 (D.C.Cir.1981) (emphases added). See also Stidham v. U.S. Dep’t of Labor, 11 CIT 548, 551, 669 F.Supp. 432, 435 (1987) (citing Abbott v. Donovan, 7 CIT 323, 327-28, 588 F.Supp. 1438, 1442 (1984) (quotations omitted)); IBM, 29 CIT at -, 403 F.Supp.2d at 1314 (quoting Stidham); Former Employees of Computer Sciences Corp. v. U.S. Sec’y of Labor, 29 CIT -, -, 366 F.Supp.2d 1365, 1371 (2005) Thus, while the Labor Department is vested with considerable discretion in the conduct of its investigation" }, { "docid": "7717261", "title": "", "text": "this was a straightforward case, in which counsel's time and expertise was misspent, or this was an extremely complicated case, in which no one could fault Defendants in adopting. . . [the challenged] policy (thus it must have been substantially justified).”). See also Former Employees of Tesco Tech., LLC v. U.S. Sec’y of Labor, 30 CIT _, _, 2006 WL 3419786 at ** 4-5 (2006) (rejecting Labor Department’s “mass-production” versus “custom-designed” distinction, in TAA case); Merrill Corp., 31 CIT at _, 483 F. Supp. 2d at 1268 (same). The Labor Department has failed to make the standards that it is applying in the software industry generally accessible by publishing them in a regulation or in some sort of policy statement or other guidance document. Thus, anyone attempting to ascertain the applicable standard - or to determine how a particular standard was being applied, or whether it was being consistently applied - has had no choice but to conduct fairly exhaustive research, identifying and then reviewing (and comparing) relevant agency determinations in the Federal Register, briefs submitted by the Government in relevant cases, and judicial opinions issued in those cases (quite a time-consuming endeavor). See also Former Employees of Internat’l Business Machines Corp. v. U.S. Sec’y of Labor, 31 CIT _, _ n.62, 483 F. Supp. 2d 1284, 1326 n.62 (2007) (discussing “fact intensive,” “case-by-case” nature of analysis in TAA case) (citation omitted). There is thus no truth to the Government’s assertions that “[t]his case involved a simple matter of whether Labor adequately investigated the information provided by the petitioners and the subject facility to determine whether an article was produced,” and that “no peculiar research or legal development was necessary.” See Def.’s Response at 28. As detailed above, it was indeed a “simple matter” to determine whether the Labor Department had adequately investigated the Workers’ TAA petition; the inadequacy of the investigation was immediately and abundantly apparent from even a cursory review of the Administrative Record. But the scope of counsel’s obligation to the Workers was much greater than the Government suggests. Counsel’s charge was to do everything possible to" }, { "docid": "20838469", "title": "", "text": "2331(d) (1994). To qualify for NAFTA-TAA benefits, a group of workers or their union or other authorized representative must file with their Governor (generally through appropriate state labor authorities) a petition for certification of eligibility to apply for adjustment assistance. After 10 days, the state forwards its preliminary findings and recommendation to the Labor Department, which conducts an investigation and reaches a final determination on the petition. 19 U.S.C. § 2331(b)-(c) (1994). The trade adjustment assistance statutes are remedial legislation and, as such, are to be construed broadly to effectuate their intended purpose. Woodrum v. Donovan, 5 CIT 191, 198, 564 F. Supp. 826, 832 (1983) (citing United Shoe Workers of Am. v. Bedell, 506 F.2d 174, 187 (D.C. Cir. 1974)), aff’d, 737 F.2d 1575 (Fed. Cir. 1984); see also Former Employees of Champion Aviation Prods. v. Herman, 23 CIT 349, 352 (1999) (citations omitted) (NAFTA-TAA statute is remedial legislation, to be construed broadly). Moreover, both “because of the ex parte nature of the certification process, and the remedial purpose of [the statutes], the [Labor Department] is obliged to conduct [its] investigation with the utmost regard for the interests of the petitioning workers.” Stidham v. U.S. Dep’t of Labor, 11 CIT 548, 551, 669 F. Supp. 432, 435 (citing Abbott v. Donovan, 7 CIT 323, 327-28, 588 F. Supp. 1438, 1442 (1984) (quotations omitted) (“Abbott II”)). Thus, while the Labor Department is vested with considerable discretion in the conduct of its investigation of trade adjustment assistance claims, “there exists a threshold requirement of reasonable inquiry. Investigations that fall below this threshold cannot constitute substantial evidence upon which a determination can be affirmed.” Former Employees of Hawkins Oil and Gas, Inc. v. U.S. Sec’y of Labor, 17 CIT 126, 130, 814 F. Supp. 1111, 1115 (1993). B. The Facts of This Case The Labor Department’s denial of the Roosevelt Workers’ petition for NAFTA-TAA benefits — the action at issue here — has its roots in the Department’s denial of the Roosevelt Workers’ earlier petition for assistance under the Trade Act of 1974. Upon receipt of that petition (“the TAA petition”), the" }, { "docid": "8211103", "title": "", "text": "its petition and eligibility process and its wider range of assistance services. From a purely administrative perspective, the [Labor Department] would prefer to administer a single program for all workers regardless of the cause of dislocation.” Kletzer & Rosen at 318. . See also Former Employees of Computer Sciences Corp. v. U.S. Sec'y of Labor, 30 CIT -, -, 414 F.Supp.2d 1334, 1343 (2006); Former Employees of International Business Machines Corp., 29 CIT -, - & n. 3, 403 F.Supp.2d 1311, 1314 & n. 3 (2005) (citations omitted) (“IBM”); Former Employees of Merrill Corp. v. United States, 29 CIT -, -, 387 F.Supp.2d 1336, 1342 (2005) (\"Merrill Corp. II”); Former Employees of Electronic Data Sys. Corp. v. U.S. Sec’y of Labor, 28 CIT -, -, 350 F.Supp.2d 1282, 1290 (2004) (“EDS I”); Former Employees of Ameriphone, Inc. v. United States, 27 CIT -, -, 288 F.Supp.2d 1353, 1355 (2003) (citations omitted); Former Employees of Champion Aviation Prods, v. Herman, 23 CIT 349, 352, 1999 WL 397970 (1999) (“Champion Aviation I”) (citations omitted) (NAFTA-TAA statute is remedial legislation, to be construed broadly); Chevron I, 26 CIT at 1274, 245 F.Supp.2d at 1318 (citations omitted) (same). . See, e.g., Ameriphone, 27 CIT at - n. 3, 288 F.Supp.2d at 1355 n. 3 (cataloguing numerous opinions criticizing Labor Department's handling of TAA cases). See also Former Employees of IBM Corp., Global Services Division v. U.S. Sec’y of Labor, 29 CIT -, -, -, 387 F.Supp.2d 1346, 1350-51, 1353 (2005) (\"IBM I”) (agency’s investigation was \"merely perfunctory,” and petition was denied based on only \"scant evidence”; action remanded to agency with instructions to supplement \"shockingly thin” record of investigation); Former Employees of Murray Engineering, Inc. v. Chao, 28 CIT -, -, -n. 10, 358 F.Supp.2d 1269, 1274, 1275 n. 10 (2004) {\"Murray Engineering II”) (agency's determination both \"betrays ... [any] understanding of the industry it is investigating and the requirements of the [TAA statute]” and \"failed to make reference to relevant law ..., including Labor’s own regulations on the matter”; and, although agency was granted three extensions of time to file results of second" }, { "docid": "9592619", "title": "", "text": "U.S.C. § 2272(a)(3) (1994). Defendant contends the Court’s finding either of these two arguments to be. supported by substantial evidence on the record provides sufficient grounds for the Court to uphold the Secretary’s determination that plaintiffs are not eligible for certification to receive trade adjustment assistance benefits. Standard of Review In reviewing determinations of the Department of Labor denying certification of eligibility to receive trade adjustment assistance benefits, this Court will sustain the Department’s determination when it is supported by substantial evidence on the record and is otherwise in accordance with law. See 19 U.S.C. § 2395(b)-(c) (1994); see also Former Employees of General Electric Corp. v. U.S. Department of Labor, 14 CIT 608, 611, 1990 WL 129488 (1990). “Substantial evidence has been held to be more than a ‘mere scintilla,’ but sufficient evidence to reasonably support a conclusion.” Former Employees of General Electric Corp., 14 CIT at 611 (citations omitted). In reviewing Labor’s determination, this Court will give deference “ ‘to the agency’s chosen [investigative] technique, only remanding a case if that technique is so marred that the Secretary’s finding is arbitrary or of such a nature that it could not be based on “substantial evidence.” ’ ” Former Employees of CSX Oil & Gas Corp. v. United States, 13 CIT 645, 651, 720 F.Supp. 1002, 1008 (1989) (quoting United Glass & Ceramic Workers of North America v. Marshall, 584 F.2d 398, 404-05 (D.C.Cir.1978) (footnote omitted)). Discussion In order for the Secretary of Labor to certify a group of workers to receive trade adjustment assistance benefits as provided for under Section 222 of the Trade Act of 1974, it must be determined: (1) that a significant number or proportion of the workers in such workers’ firm or an appropriate subdivision of the firm have become totally or partially separated, or are threatened to become totally or partially separated, (2) that sales or production, or both, of such firm or subdivision have decreased absolutely, and (3) that increases of imports of articles like or directly competitive with articles produced by such workers’ firm or an appropriate subdivision thereof contributed importantly" }, { "docid": "18669375", "title": "", "text": "Merrow customers who may have switched to foreign-made machinery because such customer shifts would relate to earlier employment displacements, not the instant displacements. Standard of Review A negative determination by the Secretary of Labor denying certification of eligibility for trade adjustment assistance will be upheld if it is supported by substantial evidence on the record and is otherwise in accordance with law. See Woodrum v. Donovan, 5 CIT 191, 193, 564 F. Supp. 826, 828 (1983), aff’d sub nom. Woodrum v. United States, 2 Fed. Cir. (T) 82, 737 F.2d 1575 (1984). The findings of fact by the Secretary are conclusive if supported by substantial evidence. 19 U.S.C. § 2395(b). “Substantial evidence is something more than a ‘mere scintilla,’ and must be enough reasonably to support a conclusion.” Ceramica Regiomontana) S.A. v. United States, 10 CIT 399, 405, 636 F. Supp. 961, 966 (1986), aff’d, 5 Fed. Cir. (T) 77, 810 F.2d 1137 (1987) (citations omitted). Discussion The Department of Labor must follow the requirements of 19 U.S.C. § 2272 when determining whether a group of workers is eligible for trade adjustment assistance benefits. The relevant portion of the statute provides as follows: (a) The Secretary shall certify a group of workers (including workers in any agricultural firm or subdivision of an agricultural firm) as eligible to apply for adjustment assistance under this part if he determines— (1) that a significant number or proportion of the workers in such workers’ firm or an appropriate subdivision of the firm have become totally or partially separated, or are threatened to become totally or partially separated, (2) that sales or production, or both, of such firm or subdivision have decreased absolutely, and (3) that increases of imports of articles like or directly competitive with articles produced by such workers’ firm or an appropriate subdivision thereof contributed importantly to such total or partial separation, or threat thereof, and to such decline in sales or production. 19 U.S.C. § 2272(a) (1988). Employees must meet all three statutory criteria to be certified as eligible for trade adjustment assistance. The supplemental administrative record reflects a decrease in" }, { "docid": "8211104", "title": "", "text": "remedial legislation, to be construed broadly); Chevron I, 26 CIT at 1274, 245 F.Supp.2d at 1318 (citations omitted) (same). . See, e.g., Ameriphone, 27 CIT at - n. 3, 288 F.Supp.2d at 1355 n. 3 (cataloguing numerous opinions criticizing Labor Department's handling of TAA cases). See also Former Employees of IBM Corp., Global Services Division v. U.S. Sec’y of Labor, 29 CIT -, -, -, 387 F.Supp.2d 1346, 1350-51, 1353 (2005) (\"IBM I”) (agency’s investigation was \"merely perfunctory,” and petition was denied based on only \"scant evidence”; action remanded to agency with instructions to supplement \"shockingly thin” record of investigation); Former Employees of Murray Engineering, Inc. v. Chao, 28 CIT -, -, -n. 10, 358 F.Supp.2d 1269, 1274, 1275 n. 10 (2004) {\"Murray Engineering II”) (agency's determination both \"betrays ... [any] understanding of the industry it is investigating and the requirements of the [TAA statute]” and \"failed to make reference to relevant law ..., including Labor’s own regulations on the matter”; and, although agency was granted three extensions of time to file results of second remand, remand results nevertheless still failed to comply with court’s remand instructions); EDS I, 28 CIT at -, 350 F.Supp.2d at 1290 (in addition to grave flaws in agency’s factual investigation, agency's interchangeable use of distinctly different terms renders its conclusion \"hardly discernible” and \"neither persuasive nor careful”); Former Employees of Tyco Electronics v. U.S. Dep’t of Labor, 28 CIT -, -, 350 F.Supp.2d 1075, 1089 (2004) (\"Tyco IV\") (\"Labor repeatedly disregarded evidence of critical facts,\" \"refused to accept information submitted by [the petitioning workers], which allegedly contradicted statements made by [company] officials,” “rel[ied] on incomplete and allegedly contradictory information to support its position,” and ultimately \"failed to provide any analysis regarding the change in its position to certify [the workers] as eligible”); Former Employees of Ericsson, Inc. v. U.S. Sec’y of Labor, 28 CIT -, -, 2004 WL 2491651 at * 5 (2004) {\"Ericsson I\") (agency's finding \"is not only unsupported by substantial evidence, but is ... contradicted by the scant evidence\" that exists); Former Employees of Sun Apparel of Texas v. U.S. Sec’y" }, { "docid": "20790315", "title": "", "text": "(3) that increases of imports of articles like or directly competitive with articles produced by such workers’ firm or an appropriate subdivision thereof contributed importantly to such total or partial separation, or threat thereof, and to such decline in sales or production. 19 U.S.C. §2272(a). Subsection 2272(b)(1) defines “contributed importantly” to mean “a cause which is important but not necessarily more important than any other cause.” On this statute’s face, and as reaffirmed by the courts, all three of the foregoing requirements must be satisfied by petitioners for assistance. See, e.g., Int’l Union, United Automobile, Aerospace & Agricultural Implement Workers of America v. United States, 22 CIT 712, 713, 20 F.Supp.2d 1288, 1290 (1998). In reviewing ETA determinations, the findings of fact by the Secretary of Labor * * *, if supported by substantial evidence, shall be conclusive; but the court, for good cause shown, may remand the case to such Secretary to take further evidence * * *. 19 U.S.C. §2395(b). See 28 U.S.C. §2640(c). See also Former Employees of Shaw Pipe, Inc. v. United States, 21 CIT 1282, 1284, 988 F.Supp. 588, 590 (1997) (such determinations must be in accordance with law). “Substantial evidence * * * must be enough reasonably to support a conclusion”. Ceramica Regiomontana, S.A. v. United States, 10 CIT 399, 405, 636 F.Supp. 961, 966 (1986), aff’d, 810 F.2d 1137 (Fed.Cir. 1987), citing Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938); Matsushita Elec. Indus. Co. v. United States, 750 F.2d 927, 933 (Fed.Cir. 1984). “Good cause [to remand] exists if the Secretary’s chosen methodology is so marred that his finding is arbitrary or of such a nature that it could not be based on substantial evidence”. Former Employees of Barry Callebaut v. United States, 25 CIT 1226, 1230, 177 F.Supp.2d 1304, 1308 (2001), citing Former Employees of Linden Apparel Corp. v. United States, 13 CIT 467, 469, 715 F.Supp. 378, 381 (1989), quoting United Glass & Ceramic Workers of North America, AFL-CIO v. Marshall, 584 F.2d 398, 405 (D.C.Cir. 1978). But, in general, “the nature and extent of the investigation are matters" }, { "docid": "20790316", "title": "", "text": "United States, 21 CIT 1282, 1284, 988 F.Supp. 588, 590 (1997) (such determinations must be in accordance with law). “Substantial evidence * * * must be enough reasonably to support a conclusion”. Ceramica Regiomontana, S.A. v. United States, 10 CIT 399, 405, 636 F.Supp. 961, 966 (1986), aff’d, 810 F.2d 1137 (Fed.Cir. 1987), citing Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938); Matsushita Elec. Indus. Co. v. United States, 750 F.2d 927, 933 (Fed.Cir. 1984). “Good cause [to remand] exists if the Secretary’s chosen methodology is so marred that his finding is arbitrary or of such a nature that it could not be based on substantial evidence”. Former Employees of Barry Callebaut v. United States, 25 CIT 1226, 1230, 177 F.Supp.2d 1304, 1308 (2001), citing Former Employees of Linden Apparel Corp. v. United States, 13 CIT 467, 469, 715 F.Supp. 378, 381 (1989), quoting United Glass & Ceramic Workers of North America, AFL-CIO v. Marshall, 584 F.2d 398, 405 (D.C.Cir. 1978). But, in general, “the nature and extent of the investigation are matters resting properly within the sound discretion of the administrative officials”. Former Employees of CSX Oil & Gas Corp. v. United States, 13 CIT 645, 651, 720 F.Supp. 1002, 1008 (1989), quoting Cherlin v. Donovan, 7 CIT 158, 162, 585 F.Supp. 644, 647 (1984). A The ETA’s initial negative determination herein states that its investigation of the facts and circumstances of plaintiffs’ lost jobs revealed that the criteria of 19 U.S.C. §2272(a)(3), supra, were not met because [t]he yarn produced by the workers at the subject firm was produced for internal consumption in the company’s manufacturing process. Galey & Lord did not import yarn in the time period relevant to the investigation. AR, p. 35. See 66 Fed.Reg. at 9,599. Upon reconsideration after the court-ordered remand, the ETA affirmed its original notice, denying eligibility to apply for adjustment assistance for the plaintiffs. That affir-mance reports, in sum and substance: On remand, the Department contacted officials of Galey & Lord to obtain clarification of the production and employment data provided with respect to the worker group in" }, { "docid": "8211116", "title": "", "text": "not be certified as \"service workers”—albeit based on a rather different rationale: Only in very limited instances are service workers certified for TAA, namely the worker separations must be caused by a reduced demand for their services from a parent or controlling firm or subdivision whose workers produce an article and who are currently under certification for TAA. The investigation revealed no such affiliations. 69 Fed.Reg. at 20,642 (emphasis added). Although the error is of no significance in this case (since the Workers here have now been certified), it is worth noting that the formulation in the Labor Department’s notice denying the Workers’ request for reconsideration (quoted immediately above) materially misstated the test for certification as \"service workers.” In that formulation of the \"service workers” test, the Labor Department would require that the separations of the petitioning workers be attributable to a reduced demand for their services by a facility “whose workers produce an article and ... are currently under certification for TAA.\" Id. (emphasis added). In contrast, in its initial Negative Determination denying the Workers' petition, the agency accurately stated the \"service workers” test— \"the reduction in demand for [the petitioning workers’] services must originate at a production facility whose workers independently meet the statutory criteria for certification.\" (Emphasis added.) See n. 15, supra (quoting Negative Determination Regarding Eligibility to Apply for Worker Adjustment Assistance, at A.R. 44-45). See generally Chevron I, 26 CIT at 1285, 245 F.Supp.2d at 1328 (citations omitted) (discussing criteria for TAA certification as \"service workers”). As Chevron I explained, \"The question is not whether there was a certification already in effect. Instead, what the Labor Department must determine is whether workers at the relevant production facility met the criteria for certification—whether or not they actually sought it.” Id., 26 CIT at 1288, 245 F.Supp.2d at 1331 (citing Former Employees of Marathon Ashland Pipeline, LLC v. Chao, 26 CIT 739, 747-48, 215 F.Supp.2d 1345, 1355 (2002) (\"Marathon Ashland I”); Champion Aviation I, 23 CIT at 354, 1999 WL 397970; Bennett v. U.S. Sec'y of Labor, 20 CIT 788, 792, 1996 WL 434685 (1996)). The distinction" }, { "docid": "20838480", "title": "", "text": "the administrative record. See, e.g., Champion Aviation, 23 CIT at 350 (citing 28 U.S.C. § 2640(c) (1994) and Int’l Union v. Reich, 22 CIT 712, 716, 20 F. Supp. 2d 1288, 1292 (1998)). The agency’s determination must be sustained if it is supported by substantial evidence in the record and is otherwise in accordance with law. 19 U.S.C. § 2395(b) (1994); Swiss Indus. Abrasives I, 17 CIT at 947, 830 F. Supp. at 639 (citing Former Employees of Gen. Elec. Corp. v. U.S. Dep’t of Labor, 14 CIT 608, 611 (1990)). The Labor Department’s findings of fact are thus conclusive if they are supported by substantial evidence. See Former Employees of Galey & Lord Indus., Inc. v. Chao, 26 CIT 806, 808, No. 01-00130, Slip Op. 02-74, 2002 Ct. Intl. Trade LEXIS 79, at *6 (2002) (citation omitted). However, substantial evidence is more than a “mere scintilla”; it must be enough to reasonably support a conclusion. Id. at *7 (citing Ceramica Regiomontana, S.A. v. United States, 10 CIT 399, 405, 636 F. Supp. 961, 966 (1986), aff’d, 810 F.2d 1137 (1987)). And “[a]n assessment of the substantiality of record evidence must take into account whatever else in the record fairly detracts from its weight.” Former Employees of Swiss Indus. Abrasives v. United States, 19 CIT 649, 651 (1995) (citing Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951)) (“Swiss Indus. Abrasives II”). Moreover, all rulings based on the agency’s findings of fact must be “in accordance with the statute and not * * * arbitrary and capricious”; to that end, “the law requires a showing of reasoned analysis.” Gen. Elec. Corp., 14 CIT at 611 (quoting Int’l Union v. Marshall, 584 F.2d at 396 n.26). In short, although it is clear that the scope of review here is narrow, and that a court is not free to substitute its judgment for that of the agency, it is equally clear that “the agency must examine the relevant data and articulate a satisfactory explanation for its action including a ‘rational connection between the facts found and the choice made.’” Alcatel Telecomms.," }, { "docid": "20819521", "title": "", "text": "Plaintiffs’ claims for TAA and NAFTA TAA. For the reasons set forth below, the court grants the Plaintiffs motion to certify the Employees’ TAA and NAFTA TAA claims. Ill Jurisdiction and Standard of Review The court has jurisdiction under 28 U.S.C. § 1581(d) (1994). This case is governed by 19 U.S.C. § 2272 (1994) and 19 U.S.C. § 2395 (1994). 19 U.S.C. § 2272 provides for separated workers to petition for TAA. 19 U.S.C. § 2272 (1994). 19 U.S.C. § 2395 provides for the petitioning by displaced workers for NAFTA TAA and judicial review of Labor’s determination on such petitions. 19 U.S.C. § 2395 (1994). That section also provides that the court, “for good cause shown * * * may remand the case to [Labor] to take further evidence.” Id. “Good cause exists if the Secretary’s chosen methodology is so marred that his finding is arbitrary or of such a nature that it could not be based on substantial evi dence.” Former Employees of Linden Apparel Corp. v. United States, 13 CIT 467, 469, 715 F. Supp 378, 381 (CIT 1989) (citations and internal punctuation omitted). “A negative determination by the Secretary of Labor denying certification of eligibility for [TAA] will be upheld if it is supported by substantial evidence on the record and is otherwise in accordance with law.” Former Employees of Swiss Indus. Abrasives v. United States, 17 CIT 945, 947, 830 F. Supp 637, 639 (1993); see also 19 U.S.C. § 2395(b). Substantial evidence is something more than a “mere scintilla,” and must be enough evidence to reasonably support a conclusion. Primary Steel, Inc. v. United States, 17 CIT 1080, 1085, 834 F. Supp. 1374, 1380 (1993); Ceramica Regiomontana, S.A. v. United States, 10 CIT 399, 405, 636 F. Supp. 961, 966 (1986), aff'd, 810 F.2d 1137 (Fed. Cir. 1987). The Supreme Court in Consolidated Edison Co. v. NLRB, 305 U.S. 197, 59 S.Ct. 206 (1938), stated that language within administrative statutes which relax the rules of evidence applicable to U.S. district courts is designed to “free administrative boards from the compulsion of technical rules so that" }, { "docid": "18669374", "title": "", "text": "is too small to attract competition. Id. Additionally, Labor determined expanding the customer survey to former Merrow customers would serve little purpose because no current worker separations would be related to the loss of these customers. Id. Labor affirmed, therefore, its original negative determination. Id. Contentions of the Parties Plaintiffs argue Labor’s investigation on remand was incomplete and inadequate and must be remanded once again for Labor to conduct a proper investigation. According to plaintiffs, Labor failed to investigate whether there were increased imports of replacement parts which are competitive with Merrow-produced parts. Plaintiffs also complain Labor acted arbitrarily and capriciously in deciding it was unnecessary to expand its survey to former customers of Merrow. Labor contends its remand determination should be sustained because plaintiffs have failed to satisfy the eligibility requirement of “increases of imports” imposed by 19 U.S.C. § 2272(a)(3) (1988). According to Labor, foreign-made sewing machine parts do not compete with Merrow-produced parts and, therefore, the imports of such parts need not be analyzed. Labor maintains it is unnecessary to survey former Merrow customers who may have switched to foreign-made machinery because such customer shifts would relate to earlier employment displacements, not the instant displacements. Standard of Review A negative determination by the Secretary of Labor denying certification of eligibility for trade adjustment assistance will be upheld if it is supported by substantial evidence on the record and is otherwise in accordance with law. See Woodrum v. Donovan, 5 CIT 191, 193, 564 F. Supp. 826, 828 (1983), aff’d sub nom. Woodrum v. United States, 2 Fed. Cir. (T) 82, 737 F.2d 1575 (1984). The findings of fact by the Secretary are conclusive if supported by substantial evidence. 19 U.S.C. § 2395(b). “Substantial evidence is something more than a ‘mere scintilla,’ and must be enough reasonably to support a conclusion.” Ceramica Regiomontana) S.A. v. United States, 10 CIT 399, 405, 636 F. Supp. 961, 966 (1986), aff’d, 5 Fed. Cir. (T) 77, 810 F.2d 1137 (1987) (citations omitted). Discussion The Department of Labor must follow the requirements of 19 U.S.C. § 2272 when determining whether a group" }, { "docid": "20838479", "title": "", "text": "time it denied reconsideration of its determination on the NAFTA-TAA petition, the Labor Department also issued a determination denying the Roosevelt Workers certification as a “secondarily-affected worker group” under the Statement of Administrative Action accompanying the NAFTA Implementation Act. AR 36 (Negative Finding Regarding Qualification as a Secondarily Affected Worker Group Pursuant to the Statement of Administrative Action Accompanying the NAFTA Implementation Act (July 21, 2000)). That negative determination was based on the agency’s findings that (1) “[t]he workers of Chevron Products Company in Roosevelt, Utah, are engaged in * * * employment related to lifting and transporting crude oil”; (2) “the majority of [the] crude oil lifted and transported by the Roosevelt workers [was] purchased from 3rd parties”; and (3) the workers did not “supply components, unfinished, or semifinished goods to a directly-affected (‘primary’) firm nor did they assemble or finish products made by a directly-affected firm.” AR 37. This appeal followed. II. Standard of Review Judicial review of a Labor Department determination denying certification of eligibility for trade assistance benefits is confined to the administrative record. See, e.g., Champion Aviation, 23 CIT at 350 (citing 28 U.S.C. § 2640(c) (1994) and Int’l Union v. Reich, 22 CIT 712, 716, 20 F. Supp. 2d 1288, 1292 (1998)). The agency’s determination must be sustained if it is supported by substantial evidence in the record and is otherwise in accordance with law. 19 U.S.C. § 2395(b) (1994); Swiss Indus. Abrasives I, 17 CIT at 947, 830 F. Supp. at 639 (citing Former Employees of Gen. Elec. Corp. v. U.S. Dep’t of Labor, 14 CIT 608, 611 (1990)). The Labor Department’s findings of fact are thus conclusive if they are supported by substantial evidence. See Former Employees of Galey & Lord Indus., Inc. v. Chao, 26 CIT 806, 808, No. 01-00130, Slip Op. 02-74, 2002 Ct. Intl. Trade LEXIS 79, at *6 (2002) (citation omitted). However, substantial evidence is more than a “mere scintilla”; it must be enough to reasonably support a conclusion. Id. at *7 (citing Ceramica Regiomontana, S.A. v. United States, 10 CIT 399, 405, 636 F. Supp. 961, 966" }, { "docid": "16668359", "title": "", "text": "is not free to substitute its judgment for that of the agency, it is equally clear that “the agency must examine the relevant data and articulate a satisfactory explanation for its action including a ‘rational connection between the facts found and the choice made.’ ” Former Employees of Alcatel Telecomms. v. Herman, 24 CIT 655, 658-659, (quoting Motor Vehicle Mfrs. Assn’n v. State Farm Mut. Auto Ins., 463 U.S.29, 43, 103 S. Ct. 2856, 77 L.Ed.2d 443 (1983) (citations omitted)). Where “good cause [is] shown,” a case must be remanded for further investigation and analysis. See 19 U.S.C. § 2395(b) (1994); Former Employees of Linden Apparel Corp. v. United States, 13 CIT 467, 469, 715 F. Supp. 378, 381 (1989); Swiss Indus. Abrasives I, 17 CIT at 947, 830 F. Supp. at 640. III. Analysis As Chevron I observed, the Labor Department “has an affirmative duty ‘to conduct a factual inquiry into the nature of the work performed by the petitioners to determine whether it amounted to that of a service or that of production.’ ” Chevron I, 26 CIT at_, 245 F. Supp.2d at 1327-28 (quoting Former Employees of Shot Point Servs. v. United States, 17 CIT 502, 507 (1993)). Moreover, more generally, “the agency ‘has an affirmative duty to investigate whether petitioners are members of a group which Congress intended to benefit’ from trade adjustment assistance legislation.” Id. at 1328 (citing Former Employees of Hawkins Oil & Gas Inc. v. U.S. Sec’y of Labor, 17 CIT 126, 129, 814 F. Supp. 1111, 1114 (1993) ). The remand results filed with the Court reveal that the Labor Department has, once again, failed to properly discharge those duties. As Chevron I explained, the NAFTA-TAA program includes two separate components, providing benefits both for workers in firms “directly affected by imports from * * * Canada” and for “workers in secondary firms that supply or assemble products by firms that are directly affected.” 26 CIT at__, 245 F. Supp. 2d at 1322-23 (quoting Statement of Administrative Action, H.R. Doc. No. 103-159, vol. 1 at 672, 674 (1993)). The Labor Department’s remand" }, { "docid": "9592618", "title": "", "text": "Nagy v. Donovan, 6 CIT 141, 145, 571 F.Supp. 1261, 1264 (1983) (interpreting eligibility requirements' to receive trade adjustment assistance benefits established by 19 U.S.C. § 2272(3) (1980)). Defendant contends the Supplemental Administrative Record contains substantial evidence supporting the Secretary’s determination that in applying protective coatings to steel pipe, Shaw Pipe’s Highspire facility did not “create or manufacture a tangible commodity, or transform it into a new and different article.” Id. Additionally, defendant asserts even if the Court finds the record fails to support the Department’s determination that plaintiffs did not work at a company which “create[s] or manufacturéis] a tangible commodity, or transform[s] it into a new and different article,” id., plaintiffs additionally fail to satisfy the second condition on eligibility for certification established by 19 U.S.C. § 2272(a)(3). The second condition requires a determination that an “increase[ ] of imports of articles like or directly competitive with articles produced by [plaintiffs’] firm ... contributed importantly to [plaintiffs’] total or partial separation, or threat thereof, and to such decline in sales or production.” 19 U.S.C. § 2272(a)(3) (1994). Defendant contends the Court’s finding either of these two arguments to be. supported by substantial evidence on the record provides sufficient grounds for the Court to uphold the Secretary’s determination that plaintiffs are not eligible for certification to receive trade adjustment assistance benefits. Standard of Review In reviewing determinations of the Department of Labor denying certification of eligibility to receive trade adjustment assistance benefits, this Court will sustain the Department’s determination when it is supported by substantial evidence on the record and is otherwise in accordance with law. See 19 U.S.C. § 2395(b)-(c) (1994); see also Former Employees of General Electric Corp. v. U.S. Department of Labor, 14 CIT 608, 611, 1990 WL 129488 (1990). “Substantial evidence has been held to be more than a ‘mere scintilla,’ but sufficient evidence to reasonably support a conclusion.” Former Employees of General Electric Corp., 14 CIT at 611 (citations omitted). In reviewing Labor’s determination, this Court will give deference “ ‘to the agency’s chosen [investigative] technique, only remanding a case if that technique is" } ]

[ { "docid": "22663509", "title": "", "text": "without a jury. The court’s rulings, one admitting, the other excluding the identical testimony, were neither inconsistent nor improper. They illustrate the difference in standards and latitude allowed in passing upon the distinct issues of probable cause and guilt. Guilt in a criminal case must be proved beyond a reasonable doubt and by evidence confined to that which long experience in the common-law tradition, to some extent embodied in the Constitution, has crystallized into rules of evidence consistent with that standard. These rules are historically grounded rights of our system, developed to safeguard men from dubious and unjust convictions, with resulting forfeitures of life, liberty and property. However, if those standards were to be made applicable in determining probable cause for an arrest or for search and seizure, more especially in cases such as this involving moving vehicles used in the commission of crime, few indeed would be the situations in which an officer, charged with protecting the public interest by enforcing the law, could take effective action toward that end. Those standards have seldom been so applied. In dealing with probable cause, however, as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act. The standard of proof is accordingly correlative to what must be proved. “The substance of all the definitions” of probable cause “is a reasonable ground for belief of guilt.” McCarthy v. De Armit, 99 Pa. St. 63, 69, quoted with approval in the Carroll opinion. 267 U. S. at 161. And this “means less than evidence which would justify condemnation” or conviction, as Marshall, C. J., said for the Court more than a century ago in Locke v. United States, 7 Cranch 339, 348. Since Marshall’s time, at any rate, it has come to mean more than bare suspicion: Probable cause exists where “the facts and circumstances within their [the officers’] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the" } ]

[ { "docid": "23267726", "title": "", "text": "erred in admitting into evidence the weapons seized, for such were the fruits of an illegal search and seizure; that the authorizing statute under which appellants are charged is unconstitutional; that there was insufficient competent evidence to convict the appellants of the charges alleged in the indictment; and that the trial court erred in denying appellants’ demand for a bill of particulars. First, appellants contend that the war-rantless search was unreasonable for the federal agents had sufficient time prior to the search to seek a search warrant from either a federal magistrate or a state court. The record is clear that under the circumstances, there was insufficient time to obtain a search warrant and that there was probable cause for a seizure of the vehicle and a search of the trunk. We must give the Fourth Amendment a practical interpretation and follow common sense standards for establishing probable cause for such is mandated by United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965). Probable cause for the officers to arrest the appellants certainly existed after all the above facts finally came to the officers’ attention. Since probable cause to search the automobile existed, such probable cause furnished the officers a sufficient basis for searching the vehicle at the scene without a warrant. Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); Carroll v. United States, 267 U.S. 132, 149, 45 S.Ct. 280, 69 L.Ed. 543 (1925). Also, it is not necessary to obtain a search warrant if it appears likely at the time that the delay incident to obtaining a warrant would result in losing the opportunity to apprehend a law violator. Such is the case here. The above is true even though it later develops that sufficient time had been available in which a search warrant could have been obtained. United States v. Thomas, 319 F.2d 486 (6th Cir. 1963). Here the officers did not have the full information until late in the evening of the arrest. Given these circumstances then and now, there appears no time when the officers" }, { "docid": "14993835", "title": "", "text": "subjected to niggling scrutiny, but tested in a common-sense and realistic manner. Illinois v. Gates, 462 U.S. 213, 238-239, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983); United States v. Ventresca, 380 U.S. 102, 109, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965). A search warrant may issue on a showing of probable cause — -something more than suspicion but also something significantly less than evidence necessary to convict. Henry v. United States, 361 U.S. 98, 100-102, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959). “Articulating precisely what ‘reasonable suspicion’ and ‘probable cause’ mean is not possible.” Ornelas v. United States, 517 U.S. 690, 695, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996). Probable cause is concerned with probabilities, “the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.” Brinegar v. United States, 338 U.S. 160, 175, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949). When the constitutional validity of a warrant is challenged, the court must determine whether the facts demonstrated by the officer-ap plicant amounted to a legally sufficient showing of probable cause. See Beck v. Ohio, 379 U.S. 89, 96, 85 S.Ct. 228, 13 L.Ed.2d 142 (1964) (probable cause to arrest). Particularity of Description The Fourth Amendment requires that a warrant “particularly describe” the place to be searched and the persons or things to be seized. Groh v. Ramirez, 540 U.S. 551, 124 S.Ct. 1284, 157 L.Ed.2d 1068 (2004). The description must be sufficiently detailed “that the officer with a search warrant can with reasonable effort ascertain and identify the place intended.” Steele v. United States, 267 U.S. 498, 503, 45 S.Ct. 414, 69 L.Ed. 757 (1925). Minor errors or honest mistakes in describing a location to be searched do not invalidate a warrant. Maryland v. Garrison, 480 U.S. 79, 87, 107 S.Ct. 1013, 94 L.Ed.2d 72 (1987). Cf. Illinois v. Rodriguez, 497 U.S. 177, 184, 110 S.Ct. 2793, 111 L.Ed.2d 148 (1990) (reasonableness “does not demand that the government [always] be factually correct.”). See United States v. Burke, 784 F.2d 1090, 1092 (11th Cir.1986) (although the address was incorrect, the building was described" }, { "docid": "2248255", "title": "", "text": "(5) Paredes-Lima then walked to the parking lot, examined the van, and then rejoined Rhaburn and Simon in the restaurant; and (6) the two defendants stopped twice to examine the van as they were leaving the lot. According to the government, these facts, when viewed in their totality, indicated that Rha-burn and Simon were engaged in a joint effort to collect the cocaine that they were expecting Servin to deliver. In support of their argument, the defendants rely primarily on United States v. Jackson, 533 F.2d 314 (6th Cir.1976). In Jackson, officers arrested Charles Goff for possession of narcotics. Goff then agreed to assist DEA agents in a controlled buy, informing the agents that he was to meet a woman named Jackson at the local Greyhound stop. He also described Jackson’s physical appearance and stated that she would be arriving from California. Id. at 315. After observing a woman matching this description, police followed her to a motel. When she saw that she was being followed, Jackson started to leave the area, at which time she was arrested. Id. In rejecting a finding of probable cause for the arrest, we observed that no corroborating information existed to confirm that Jackson was in the process of committing a felony, and that the alleged “confirmation” made by the agents demonstrated only “innocent behavior or suspicious behavior at most.” Id. at 318. The defendants argue that their behavior also falls below the threshold necessary to establish anything more than suspicious behavior. The government responds, however, by noting that besides the physical description (as in Jackson) the officers in the instant case also observed considerable be havior indicating that a drug deal was afoot. Rhaburn and Simon appeared to conduct counter-surveillance in the parking lot by having Paredes-Lima (whose finger prints were found on the cocaine packaging) investigate the van. The defendants twice stopped to inspect the van — in which nine kilograms of cocaine had been found earlier — as they left the lot. These facts, together with the information provided by Servin, distinguish the case from Jackson and satisfy the threshold necessary" }, { "docid": "2246885", "title": "", "text": "3 L.Ed.2d 327 (1959). Fourth Amendment analysis relating to a magistrate’s assessment of hearsay information presented in an application for a search warrant can apply with equal force to an assessment of the basis for a warrantless arrest by police officers. Whiteley v. Warden, 401 U.S. 560, 566, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971). Ultimately, probable cause to arrest depends upon whether; [A]t the moment the arrest was made, * * * the facts and circumstances within [the arresting officers’] knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the petitioner had committed or was committing an offense. Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 225, 13 L.Ed.2d 142 (1964); United States v. Peep, 490 F.2d 903, 906 (8th Cir. 1974). Here, as always, we assess probable cause on the basis of cumulative facts from the viewpoint of a reasonably prudent police officer, United States v. Peep, supra at 906, acting in the circumstances of the particular case. Jackson v. United States, 408 F.2d 1165, 1171 (8th Cir.), cert. denied, 396 U.S. 862, 90 S.Ct. 135, 24 L.Ed.2d 114 (1969). In so doing, we remain cognizant that “[t]he rule of probable cause is a practical, nontechnical conception affording the best compromise that has been found for accommodating these often opposing interests” — individual privacy on the one hand, and the practical needs of law enforcement on the other. Brinegar v. United States, 338 U.S. 160, 176, 69 S.Ct. 1302, 1311, 93 L.Ed. 1879 (1949); see United States v. Ventresca, 380 U.S. 102, 108, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965). Having carefully reviewed the record with this principle of practicality in mind, we conclude that the instant arrest and search were justified. To form an adequate basis for a finding of probable cause, an informant’s hearsay tip must reveal (1) some of the underlying circumstances from which the informant concluded that the narcotics were located where he claimed they were, and (2) some of the underlying circumstances from which the officer concluded that the informant was" }, { "docid": "18589825", "title": "", "text": "reliable than one who supplies information on a regular basis.” Basis of knowledge is likewise less of a problem in the victim-witness cases, for by definition the victim or witness is reporting first-hand knowledge. 1 W.R. LaFave, Search and Seizure, 586-587 (1978); cf. Jaben v. United States, 381 U.S. 214, 224, 85 S.Ct. 1365, 1370, 14 L.Ed.2d 345 (1965). This relaxed standard is consistent with the common sense approach taken by the Supreme Court in defining probable cause. “In dealing with probable cause, ... as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of every day life on which reasonable and prudent men, not legal technicians, act.” Brinegar v. United States, 338 U.S. 160, 175, 69 S.Ct. 1302, 1310, 93 L.Ed. 1879 (1949) quoted in Illinois v. Gates, 462 U.S. 213, 231, 103 S.Ct. 2317, 2328, 76 L.Ed.2d 527 (1983). The standard of probable cause does not require indubitable or necessarily convincing evidence, but only so much “reasonably trustworthy information” as “to warrant a prudent man in believing that the [arrestee has] committed or [is] committing an offense.” Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 225, 13 L.Ed.2d 142 (1964). While a warrant may issue only upon a finding of “probable cause,” this Court has long held that “the term ‘probable cause’ ... means less than evidence which would justify condemnation.” Locke v. United States, 7 Cranch 339, 348 [3 L.Ed. 364], and that a finding of “probable cause” may rest upon evidence which is not legally competent in a criminal trial. Draper v. United States, 358 U.S. 307, 311 [79 S.Ct. 329, 332, 3 L.Ed.2d 327]. United States v. Ventresca, 380 U.S. 102, 107, 85 S.Ct. 741, 745, 13 L.Ed.2d 684 (1965). Thus even if the testimony of Michael and Damian was inadmissible in court, perhaps because of an inability to understand the oath, or for whatever reason, their statements could nonetheless be used as a basis for a probable cause determination to support the issuance of a warrant. The existence of inconsistencies in their" }, { "docid": "23592835", "title": "", "text": "Jeanette Sturkin and Ben Livingston, Jr. to the effect that each of them had purchased drugs from Thomas and that Thomas had used the proceeds of illegal drug dealing to purchase the properties sought to be forfeited. Although the statements were hardly a significant part of the government’s case, we think the district court again erred in failing even to consider them. The reason for this failure — that the statements did not detail the underlying factual circumstances upon which the conclusions were based (citing Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964)) — has been explicitly rejected in Illinois v. Gates, 462 U.S. at 230-38, 103 S.Ct. at 2328-32. An informant’s statement may contribute to probable cause in connection with forfeiture proceedings, as in the Fourth Amendment context, if there is “substantial basis for crediting the hearsay.” United States v. One 1974 Porsche 911-S, 682 F.2d 283, 286 (1st Cir.1982) (citing United States v. Ventresca, 380 U.S. 102, 108-11, 85 S.Ct. 741, 745-47, 13 L.Ed.2d 684 (1965)). The Court has not required that every statement of an informant include a detailed recitation of its basis. Gates, 462 U.S. at 233, 237-38, 103 S.Ct. at 2329, 2331-30. Rather, the “veracity” and “basis of knowledge” of persons supplying the information are to be considered within the totality of the circumstances at issue in determining probable cause. Id. at 238, 103 S.Ct. at 2332. In particular, the Court has recognized the significance to the reliability determination of “corroboration of details of an informant’s tip by independent police work.” Id. at 241,103 S.Ct. at 2333. Here many of the details contained in the statements of Livingston and Sturkin were corroborated by other evidence of Thomas’ drug dealing. For example, Livingston’s statement that Thomas made “two or three trips per month to Florida to purchase cocaine and marijuana” and that “he got caught at least three times” was corroborated by the records of plane flights and car rentals and by the Florida arrests and conviction for possession of significant quantities of marijuana. Similarly, Sturkin’s statement that Thomas kept money" }, { "docid": "16447703", "title": "", "text": "that required when there is. According to United States v. Ventresca, 380 U.S. 102, 106, 85 S.Ct. 741, 744, 13 L.Ed.2d 684, 687 (1965), “in a doubtful or marginal case a search under a warrant may be sustainable where without one it would fall.” This court has stated that “the standards applicable to the factual basis supporting probable cause for a warrantless arrest and search are at least as stringent as those applied to a search warrant, Whiteley v. Warden of Wyoming Penitentiary, 401 U.S. 560, 566, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971), and may even be more stringent, see, e. g., United States v. Squella-Avendano, 447 F.2d 575, 579 (5th Cir. 1971).” United States v. Anderson, 500 F.2d 1311, 1315 n.8 (5th Cir. 1974). We must determine whether the facts known to the DEA agents would “warrant a man of prudence and caution in believing that the offense has been committed.” Stacey v. Emery, 97 U.S. 642, 645, 24 L.Ed. 1035, 1036 (1878). The tip alone cannot support a finding of probable cause. The informant was unknown to the agent with whom he spoke and the activities he described were perfectly consistent with the behavior of innocent travelers. There were no underlying circumstances tending to demonstrate that the informant’s conclusion of criminality was reliably made, or tending to establish the informant’s credibility. See Aguilar v. Texas, 378 U.S. 108, 114, 84 S.Ct. 1509, 1513, 12 L.Ed.2d 723, 729 (1964); Spinelli v. United States, 393 U.S. 410, 415-17, 89 S.Ct. 584, 588-89, 21 L.Ed.2d 637, 643-44 (1969). The question then is whether the tip was sufficiently corroborated. We must decide whether “the tip, even when certain parts of it have been corroborated by independent sources, is as trustworthy as a tip which would pass Aguilar’s tests without independent corroboration.” Spinelli v. United States, supra. This is a decision which must be based on the facts in each case. The agents’ surveillance revealed to them the following allegedly suspicious details: Frank Smith used addresses in three cities, Albuquerque, El Paso, and Santa Fe; Frank Smith sent a letter air freight" }, { "docid": "13097151", "title": "", "text": "made, the officers had probable cause to make it — whether at that moment the facts and circumstances within their knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that petitioner had committed or was committing an offense.” 379 U.S. at 91, 85 S.Ct. at 225. In dealing with probable cause, we, of course, deal with probabilities, the factual and practical considerations of everyday life on which reasonable and prudent persons act, Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949), United States v. Edwards, 474 F.2d 1206 (6th Cir. 1973), reversed on other grounds, 415 U.S. 800, 94 S.Ct. 1234, 39 L.Ed.2d 771 (1974), and we recognize that this common sense approach must be adhered to lest courts unduly hamper effective law enforcement. United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965); United States v. Jackson, 533 F.2d 314 (6th Cir. 1976). The facts known to Agent Markonni in this case did not meet the requirements of Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959), since the unreliable informant’s tip received was neither corroborated nor possible of corroboration. However, although the tip by itself was insufficient to establish probable cause, the tip was not so insubstantial that it could not properly have been considered as one factor in a determination of probable cause. See, Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969); United States v. Caniesco, 470 F.2d 1224 (2d Cir. 1972). This Court has quoted with approval this expression of then Cir cuit Judge Burger from Smith v. United States, 23 U.S.App.D.C. 202, 358 F.2d 833, 837 (1966), cert. denied, 386 U.S. 1008, 87 S.Ct. 1350, 18 L.Ed.2d 448 (1969): “[PJrobable cause is the sum total of layers of information and the synthesis of what the police have heard, what they know, and what they observe as trained officers. We weigh not individual layers but the ‘laminated’ total.” United States v. Barnett, 407 F.2d 1114, 1118 (6th" }, { "docid": "8444506", "title": "", "text": "in which the pills here were being carried, had any special significance to the officers. The general definition of the word “pill” is “a medicine in the form of a little ball or a small rounded mass that is to be swallowed whole.” Webster’s Third New International Dictionary. Without evidence showing a special significance of the number of pills, or the way they were packed, the telex message affords no more probable cause than a communication that a bag full of medicines or chemicals had been checked with the airline. Medicines and chemicals, as well as pills, may be either legal or illegal substances. I cannot distinguish this case from our recent decision in United States v. Jackson, 533 F.2d 314 (Decided and filed April 12, 1976), where agents arrested a woman based on an informant’s tip describing her general appearance, and stating that she would be arriving at a bus station at noon on a certain date to deliver 14 ounces of heroin to the informant. Judge Weick, writing for the court, stated: [W]e are unable to conclude that probable cause was established on the basis of the information supplied by Goff, even when supplemented by the agents’ observations of Goff and Jackson on the day of her arrest. The agents may have had reason to be suspicious of Patricia Jackson, to place her under surveillance, or even to attempt to arrange a purchase of heroin from her; however, mere unconfirmed suspicion is not the criteria upon which probable cause is based. Something more was needed, and even the agents recognized this. [Emphasis added.] I would similarly hold that although the telex message should have alerted the officers here to investigate further to corroborate their suspicions, it did not afford probable cause to seize appellant Giles’ bag and search it. I would therefore reverse the conviction because it was based upon evidence seized in violation of Giles’ Fourth Amendment rights. . Because “Terlesky,” the signatory of the Telex, was not known to either the Detroit air line personnel or the police officers, the reliability of the message was not" }, { "docid": "2246884", "title": "", "text": "Priebe, a man with whom O’Connor had never spoken. Priebe, however, had taken another DEA agent, John Bloch, to the Regan residence to purchase heroin on two prior occasions in June and July, 1974. On each occasion Priebe, under surveillance, had taken Bloch to Regan’s home, carried Bloch’s money inside and returned with heroin. Boulger had discussed the two purchases with Bloch and had assisted, as had O’Connor, in observing one of them. The District Court properly held that Enney’s tip satisfied the requirements of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and could be credited by the agents to establish probable cause, noting particularly the agents’ awareness of the Priebe-Bloch transactions at Regan’s home, Enney’s purchase and observation of heroin inside the residence, and Enney’s description of the heroin courier, later matched by Griffin. The court found no need to consider whether the informant was also to be credited under the test of detailed prognostication set forth in Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959). Fourth Amendment analysis relating to a magistrate’s assessment of hearsay information presented in an application for a search warrant can apply with equal force to an assessment of the basis for a warrantless arrest by police officers. Whiteley v. Warden, 401 U.S. 560, 566, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971). Ultimately, probable cause to arrest depends upon whether; [A]t the moment the arrest was made, * * * the facts and circumstances within [the arresting officers’] knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the petitioner had committed or was committing an offense. Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 225, 13 L.Ed.2d 142 (1964); United States v. Peep, 490 F.2d 903, 906 (8th Cir. 1974). Here, as always, we assess probable cause on the basis of cumulative facts from the viewpoint of a reasonably prudent police officer, United States v. Peep, supra at 906, acting in the circumstances of the particular case. Jackson v. United" }, { "docid": "4178001", "title": "", "text": "had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the petitioner had committed or was committing an offense.” The leading Supreme Court pronouncement on the question of probable cause sufficient to ground a warrantless arrest is Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327, a case factually similar to the instant case. The Court, in finding probable cause to support an arrest without warrant based upon information supplied by an unnamed paid informant, stated: “There is a large difference between the two things to be proved (guilt and probable cause), . . . and therefore a like difference in the quanta and modes of proof required to establish them.” Continuing, the Court followed the criteria set forth in Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949): “In dealing with probable cause . as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.” It is felt that the imposition of more stringent standards would needlessly hamper effective law enforcement, and to demand a lesser showing to sustain a warrantless arrest would leave law-abiding citizens unprotected, subject to the policeman’s whim or caprice. See Brine-gar v. United States, supra. In this Circuit hearsay information from an informant which otherwise satisfies the probable cause requirements for a warrantless arrest cannot be successfully challenged simply be cause his identity is not revealed. United States v. Jensen, 432 F.2d 861, 863 (6th Cir., 1970); Draper v. United States, supra. However, where the initial impetus for an arrest is an unnamed informer’s tip, the arresting officers must-corroborate by independent investigation the information that the arrestees committed a felony or were in the process of committing a felony. See Draper v. United States, supra; Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). Applying the above standards to the case at bar, the information possessed by the Detroit narcotics agents at the time" }, { "docid": "16466315", "title": "", "text": "case in the trunk of his car. The agents stopped the car when it left the motel and arrested its occupants. An agent identified one of the car’s occupants as Cotton. Contrary to defendants’ contention this information supplied sufficient probable cause for the magistrate to issue the warrant. There can be no doubt as to the reliability of the facts related in the warrant. Almost all of the information related in the application was observed by the affiant or other Government agents. The Supreme Court has held that “[observations of fellow officers of the Government engaged in a common investigation are plainly a reliable basis for a warrant applied for by one of their number.” United States v. Ventresca, 380 U.S. 102, 111, 85 S.Ct. 741, 747, 13 L.Ed.2d 684 (1965). The only information in the application not from a Government agent was that of the man arrested in Houston. The application detailed facts showing that his identification of Brown as the source of the bogus bills was based on personal knowledge, confirmed by Government agents when the man telephoned Brown and Brown said he would have more counterfeit money available. Thus, the reliability of the information in the warrant application is adequately established. See Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969); Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964). The only issue, then, is whether the information in the application was sufficient for a magistrate to conclude there was probable cause to believe defendant Etley’s car contained counterfeit money. The Supreme Court has held that an affidavit for a search warrant is to be interpreted in a commonsense and realistic manner, and the magistrate’s finding of probable cause should be sustained in doubtful or marginal cases. United States v. Ventresca, 380 U.S. 102, 108, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965). An affidavit need not provide absolute certainty a search will reveal the objects sought. It is only necessary that “the facts and circumstances described in the affidavit would warrant a man of reasonable caution to believe" }, { "docid": "8444507", "title": "", "text": "are unable to conclude that probable cause was established on the basis of the information supplied by Goff, even when supplemented by the agents’ observations of Goff and Jackson on the day of her arrest. The agents may have had reason to be suspicious of Patricia Jackson, to place her under surveillance, or even to attempt to arrange a purchase of heroin from her; however, mere unconfirmed suspicion is not the criteria upon which probable cause is based. Something more was needed, and even the agents recognized this. [Emphasis added.] I would similarly hold that although the telex message should have alerted the officers here to investigate further to corroborate their suspicions, it did not afford probable cause to seize appellant Giles’ bag and search it. I would therefore reverse the conviction because it was based upon evidence seized in violation of Giles’ Fourth Amendment rights. . Because “Terlesky,” the signatory of the Telex, was not known to either the Detroit air line personnel or the police officers, the reliability of the message was not established. . The informant, a friend of appellant’s ex-husband, described her as “a black female, approximately five feet tall, weighing one hundred pounds ... she usually wore slack suits" }, { "docid": "12281637", "title": "", "text": "a search or arrest warrant obtained on what the agents had before going to the apartment would have been far better than in Aguilar v. State of Texas, supra, where there was nothing but an affidavit by the officers that they “have received reliable information from a credible person and do believe that heroin, marijuana, barbiturates and other narcotics and narcotic paraphernalia are being kept at the above described premises for the purpose of sale and use contrary to the provisions of the law,” 378 U.S. at 109, 84 S.Ct. at 1511, or in Riggan v. Virginia, 384 U.S. 152, 86 S.Ct. 1378, 16 L.Ed.2d 431 (1966), where the affidavit of probable cause stated, in merely conclusory terms, “Personal observation of the premises and information from sources believed by the police department to be reliable.” 206 Va. 499, 144 S.E.2d 298, 299 n. 1 (1965). If the informant had used the phrase “I have seen,” Jones v. United States, 362 U.S. 257, 267-268 n. 2, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960), and McCray v. State of Illinois, 386 U.S. 300, 303-304, 87 S.Ct. 1056, 18 L.Ed.2d 62 (1967), would be clear authority for the validity of a warrant. Yet the district judges who denied Soyka’s motion to suppress could fairly have considered this to be implicit in what the informant said. We have been wisely told that, in dealing vidth probable cause, we must depend on “the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act,” Brinegar v. United States, 338 U.S. 160, 175, 69 S.Ct. 1302, 1310, 93 L.Ed. 1879 (1949), and that affidavits for warrants are not to be interpreted “in a hypertechnical, rather than a commonsense manner ” in eases where the “circumstances are detailed” and there is “reason for crediting the source of the information * * * given.” United States v. Ventresca, 380 U.S. 102, 109, 85 S.Ct. 741, 746, 13 L.Ed.2d 684 (1965). We are not, however, required to decide whether a magistrate or commissioner, told of all the Government here knew about Soyka, could" }, { "docid": "23688953", "title": "", "text": "belief that there is concealed money, fruit of violation of the narcotics laws, at the defendant’s residence; that he had information from Washington that Washington had paid Teller $3,000 for narcotics; that he was informed by agent Jackson that Jackson had seen the narcotics delivered; that he had furnished Washington with the money and Washington paid the $3,000 to Teller; and that other named agents informed him they had observed Teller in possession of narcotics paraphernalia. This reasoning also applies to defendant Sullivan. This court’s decision in United States v. Whitlow, 339 F.2d 975 (7th Cir. 1964), is of no aid to defendants. The affidavit there was based on the “rankest sort of hearsay.” Id. at 979. We think Hill’s affidavits enabled the Commissioner to perform his neutral and detached function of determining probable cause. The affidavit declared the source of Hill’s information and the basis of his belief that the money was the fruit of narcotics law violations. More important it informed the Commissioner of the circum stances underlying the narcotics sale. He could have reasonably concluded that Washington was a reliable informant. We think this a common sense interpretation of the affidavits. United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965). We hold that the affidavits sufficiently showed probable cause and that there was no error in the district court’s denial of the motion to suppress. Defendant Sullivan contends that the seizure of several index cards containing narcotics agents’ license plate numbers from his apartment was outside the scope of the search warrant. The property specified in the search warrant was “money which is the fruit of a crime. * * * ” The defendant has conceded, however, that an officer may seize items which are in plain sight in addition to those specified in a warrant. The agents performing the search noticed these cards on top of a dresser in Sullivan’s apartment. Since they were on top of the dresser they were in plain view of the searching agents, and thus properly seized. The mere fact that these cards were evidentiary and" }, { "docid": "12251481", "title": "", "text": "which is not legally competent in a criminal trial. As the Court noted in Brinegar v. United States, 338 U.S. 160, 175, 69 S.Ct. 1302, 1310, 93 L.Ed. 1879 (1949): In dealing with probable cause . as the very name implies, we deal with probabilities. These are not technical; they are factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act. In accordance with this view, the Court has determined that affidavits for search warrants must be tested by both magistrates and courts in a commonsense and realistic manner. United States v. Ventresca, 380 U.S. 102, 108, 85 S.Ct. 741, 13 L.Ed.2d 684 (1964). In explaining the rationale for this determination, the Court in Ventresca, supra at 109, 85 S.Ct. at 746, declared: [affidavits] are normally drafted by non-lawyers in the midst and haste of a criminal investigation. Technical requirements of elaborate specificity which once existed under common law pleadings have no proper place in this area. A grudging or negative attitude by reviewing courts toward warrants will tend to discourage police officers from submitting their evidence to a judicial officer before acting. This is not to say that probable cause can be made out by affidavits which are purely conclusory, stating only the affiant’s or an informant’s belief that probable cause exists without detailing any of the ‘underlying circumstances’ upon which that belief is based. . . . However, where these circumstances are detailed, where reason for crediting the source of the information is given, and when a magistrate has found probable cause, the courts should not invalidate the warrant by interpreting the affidavit in a hyper-technical, rather than a commonsense, manner. We agree with the District Court’s determination that there was probable cause to believe that drugs were stored on the Rosemont premises. The magistrate, upon a commonsense reading of the affidavit, could reasonably determine that: 1) a confidential informant (Mondaine) of proven reliability had advised the DEA that Hodge dealt in substantial quantities of heroin; 2) it was Hodge’s procedure to inspect the purchaser’s money and then go to his" }, { "docid": "14993834", "title": "", "text": "is jointly owned by Legault’s mother and sister. The first floor apartment is occupied by Katherine Travers and two of her three children. Travers was the common-law wife of Le-gault’s deceased brother. DISCUSSION AND RULINGS OF LAW The General Considerations As the challenged' search was conducted pursuant to a warrant, the burden falls to the defendants to show by a preponderance of the evidence that the search was unlawful. See United States v. Matlock, 415 U.S. 164, 177-178 n. 14, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974). In the law of search and seizure there is a strong preference for the “informed and deliberate determinations of magistrates.” United States v. Lefkowitz, 285 U.S. 452, 464, 52 S.Ct. 420, 76 L.Ed. 877 (1932). In recognition of this preference, courts reviewing warrants “will accept evidence of a less ‘judicially competent or persuasive character than would have justified an officer in acting on his own without a warrant.’ ” Aguilar v. Texas, 378 U.S. 108, 111, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964). Warrants are not to be subjected to niggling scrutiny, but tested in a common-sense and realistic manner. Illinois v. Gates, 462 U.S. 213, 238-239, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983); United States v. Ventresca, 380 U.S. 102, 109, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965). A search warrant may issue on a showing of probable cause — -something more than suspicion but also something significantly less than evidence necessary to convict. Henry v. United States, 361 U.S. 98, 100-102, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959). “Articulating precisely what ‘reasonable suspicion’ and ‘probable cause’ mean is not possible.” Ornelas v. United States, 517 U.S. 690, 695, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996). Probable cause is concerned with probabilities, “the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.” Brinegar v. United States, 338 U.S. 160, 175, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949). When the constitutional validity of a warrant is challenged, the court must determine whether the facts demonstrated by the officer-ap plicant amounted to a legally sufficient showing" }, { "docid": "13097150", "title": "", "text": "was seized. At this point appellant was formally placed under arrest and was advised of his constitutional rights. The appellant argues that the sum of the facts possessed by the DEA agents amounted to no more than a mere suspicion of criminal activity, and that therefore the fruits of the search should have been suppressed. The issue before this Court is thus whether there was probable cause to arrest appellant at the time he was escorted to the manager’s office, which would make a warrantless search incident to a valid arrest permissible. United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973); Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1962); United States v. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653 (1950); Manning v. Jamigan, 501 F.2d 408 (6th Cir. 1974). The Supreme Court in Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964), stated that the constitutionality of an arrest depends upon whether, “at the moment the arrest was made, the officers had probable cause to make it — whether at that moment the facts and circumstances within their knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that petitioner had committed or was committing an offense.” 379 U.S. at 91, 85 S.Ct. at 225. In dealing with probable cause, we, of course, deal with probabilities, the factual and practical considerations of everyday life on which reasonable and prudent persons act, Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949), United States v. Edwards, 474 F.2d 1206 (6th Cir. 1973), reversed on other grounds, 415 U.S. 800, 94 S.Ct. 1234, 39 L.Ed.2d 771 (1974), and we recognize that this common sense approach must be adhered to lest courts unduly hamper effective law enforcement. United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965); United States v. Jackson, 533 F.2d 314 (6th Cir. 1976). The facts known to Agent Markonni in this case did not meet the" }, { "docid": "4178002", "title": "", "text": "prudent men, not legal technicians, act.” It is felt that the imposition of more stringent standards would needlessly hamper effective law enforcement, and to demand a lesser showing to sustain a warrantless arrest would leave law-abiding citizens unprotected, subject to the policeman’s whim or caprice. See Brine-gar v. United States, supra. In this Circuit hearsay information from an informant which otherwise satisfies the probable cause requirements for a warrantless arrest cannot be successfully challenged simply be cause his identity is not revealed. United States v. Jensen, 432 F.2d 861, 863 (6th Cir., 1970); Draper v. United States, supra. However, where the initial impetus for an arrest is an unnamed informer’s tip, the arresting officers must-corroborate by independent investigation the information that the arrestees committed a felony or were in the process of committing a felony. See Draper v. United States, supra; Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). Applying the above standards to the case at bar, the information possessed by the Detroit narcotics agents at the time of arrest and search consisted of: (1) the informer’s tip that appellant was supplying illicit drugs to several cities, including D.etroit, detailed supra-, (2) the knowledge that Burch was involved in narcotics violations as early as October, 1969; (3) the information derived from concerted surveillance activity of the defendant which corroborated the informant’s description of his modus operandi; (4) the confidential informant had purchased narcotics from appellant Burch on previous occasions; (5) the arresting agents had a report containing information supplied by a Chicago informant that Burch was known to deliver drugs to Cleveland, Pittsburgh, Detroit and Chicago; (6) the arresting agents observations immediately prior to the arrest; (7) the general knowledge of the agents as to persons dealing in illegal drugs. Burch was arrested while attempting to enter an automobile known to the agents to belong to a person active in the illicit drug trade in Detroit. We conclude that the arresting agents had probable cause and reasonable grounds to believe that appellant was committing a violation of the narcotics laws at the time" }, { "docid": "23592834", "title": "", "text": "United States Currency, $83,310.78, 851 F.2d 1231, 1236 (9th Cir.1988) (prior arrest probative evidence for probable cause determination). It is 'also undisputed that Thomas had a history of illegal drug activity in Georgetown, South Carolina, including three convictions for possession of marijuana. In addition, the district court discounted the testimony of undercover Agent Howard who made three drug buys at or near Ras-ta International. On December 4,1986, the agent attempted to purchase additional cocaine from a “Mr. T” inside Rasta International. In connection with that transaction, he was asked, “Did you see Zenworth Thomas any other time?” Agent Howard responded that, “Each time I made a buy near the establishment, I saw Mr. T inside ... behind the counter, walking around ... He was always there. Always present each time I went there to make a narcotics buy.” The district court erred in failing to accord this evidence any weight in connecting Thomas to the illegal drug activity at the business establishment that he owned and operated. Finally the government introduced certain statements by informants Jeanette Sturkin and Ben Livingston, Jr. to the effect that each of them had purchased drugs from Thomas and that Thomas had used the proceeds of illegal drug dealing to purchase the properties sought to be forfeited. Although the statements were hardly a significant part of the government’s case, we think the district court again erred in failing even to consider them. The reason for this failure — that the statements did not detail the underlying factual circumstances upon which the conclusions were based (citing Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964)) — has been explicitly rejected in Illinois v. Gates, 462 U.S. at 230-38, 103 S.Ct. at 2328-32. An informant’s statement may contribute to probable cause in connection with forfeiture proceedings, as in the Fourth Amendment context, if there is “substantial basis for crediting the hearsay.” United States v. One 1974 Porsche 911-S, 682 F.2d 283, 286 (1st Cir.1982) (citing United States v. Ventresca, 380 U.S. 102, 108-11, 85 S.Ct. 741, 745-47, 13 L.Ed.2d 684 (1965)). The Court" } ]

[ { "docid": "23191264", "title": "", "text": "instructions on the definition of “tribe”. Plaintiff must prove that it meets the definition of “tribe of Indians” as that phrase is used in the Nonintercourse Act both in order to establish any right to recovery and to establish standing to bring this suit. This issue is particularly difficult in this case because the Mashpees differ from most other groups who have sought to assert rights as Indian tribes. The federal government has never officially recognized the Mashpees as a tribe or actively supported or watched over them. Moreover, the Mashpees have a long history of intermarriage with non-Indians and acceptance of non-Indian religion and culture. These facts do not necessarily mean that the Mashpees are not a tribe protected by fed eral law, but they do make the issue of tribal existence a difficult factual question for the jury. Because most groups of Indians involved in litigation in the federal courts have been federally recognized Indians on western reservations, the courts have been able to accept tribal status as a given on the basis of the doctrine going back at least to The Kansas Indians, 72 U.S. (5 Wall.) 737, 756-57, 18 L.Ed. 667 (1867), that the courts will accord substantial weight to federal recognition of a tribe. See, e.g., Joint Tribal Council of the Passamaquoddy Tribe v. Morton, 528 F.2d 370, 377 (1st Cir. 1975). One consequence is that very little case law has developed on the meaning of “tribe”. The court below, in its instructions to the jury, relied primarily on Montoya v. United States, 180 U.S. 261, 266, 21 S.Ct. 358, 359, 45 L.Ed. 521 (1901): “By a ‘tribe’ we understand a body of Indians of the same or similar race, united in a community under one leadership or government, and inhabiting a particular though sometimes ill-defined territory ” Neither party challenges this basic definition, but it is far from satisfactory. Its four elements — (a) “same or similar race”; (b) “united in a community”; (c) “under one leadership or government”; and (d) “inhabiting a particular . . . territory”— leave much to be explained. A" } ]

[ { "docid": "19729386", "title": "", "text": "Paiutes should have been granted tribal status. The Paiute Tribe argues that sovereign immunity is available even to an unrecog nized tribe, citing Bottomly v. Passamaquoddy Tribe, 599 F.2d 1061 (1st Cir.1979). In Bottomly, the First Circuit upheld a dismissal based on sovereign immunity even though the Passamaquoddy Indians were not a federally recognized tribe. The Court held: [O]ur research has uncovered, no case which conditions the invocation of sovereign immunity on the factors emphasized by the state or appellant: formal federal recognition of the particular tribe by treaty or statute, a prolonged course of dealing between the tribe and the federal government, geographic location, the tribe’s warlike nature, the absence of state protection of a tribe or the continued full exercise of a tribe’s sovereign powers. The absence of authority is not surprising, for the analysis urged by appellant and the state seems to us to fundamentally misconceive basic principles of federal Indian law. In effect, their approach would condition the exercise of an aspect of sovereignty on a showing that it had been granted to the tribe by the federal government, either by explicit recognition or implicitly through a course of dealing. As the Supreme Court recently explained, however, the proper analysis is just the reverse: “The powers of Indian tribes are, in general, ‘inherent powers of a limited sovereignty which has never extinguished’. [Quotation from United States v. Wheeler, 435 U.S. 313, 322-23, 98 S.Ct. 1079, 1086, 55 L.Ed.2d 303 (1978) (emphasis in original) ]. Bottomly, 599 F.2d at 1065-1066. The Ninth Circuit also does not require official federal recognition in order that an Indian tribe can assert sovereign immunity. It does, however, require “tribal status”. In State of Alaska v. Native Village of Venetie, 856 F.2d 1384, 1387 (9th Cir.1988), the Court stated: [Tjribal status [is] arguable in the event of IRA [Indian Reorganization Act] organization. * >jc # sfc * >j< If the IRA does not settle the matter, the inquiry would shift to whether [the Indian group] has been otherwise recognized as a tribe by the federal government. See, e.g., Price [v. State of" }, { "docid": "7794989", "title": "", "text": "a large geographical circle in northeastern California. In contrast, the “Association” originally was composed of thirteen families that came from two different areas of northeastern California. The Association, as such, has no historical unity. See Native Village of Venetie I.R.A. Council v. Alaska, 944 F.2d 548, 559 (9th Cir.1991) (group claiming tribal status must show they are “modern-day successors” to a historical sovereign entity that exercised political and social authority); 25 C.F.R. § 83.7(a)(5). As we recognized in Price, “[t]o allow any group of persons to ‘bootstrap’ themselves into formal ‘tribal’ status — thereby obtaining the federal economic and legal benefits attendant upon tribal status — simply because they are all members of a larger aboriginal ethnic body would be to ignore the concept of ‘tribe’ as a distinct sovereignty set apart by historical and ethnological boundaries.” Price, 764 F.2d at 627; see also, United States v. Wheeler, 435 U.S. 313, 322-23, 98 S.Ct. 1079, 1085-86, 55 L.Ed.2d 303 (1978) (recognizing that current powers of Indian tribes are generally inherent powers which inured prior to the coming of the Europeans and were never extinguished). We reject the Association’s argument that the land could be taken in trust only for a federally recognized tribe, because “it would be unauthorized and illegal” under 25 U.S.C. § 465 for the Secretary to take title in trust for the Association unless it were a duly recognized tribe. Section 465 expressly provides that the Secretary may take title in the name of the United States in trust for an “Indian tribe or individual Indian.” 25 U.S.C. § 465 (1934 & 1970). Section 479 defines “individual Indian” as including “all other persons of one-half or more Indian blood” and “tribe” as including “any Indian tribe, organized band ... or the Indians residing on one reservation.” 25 U.S.C. § 479 (1970). The Association fits the last definition. Accordingly, our review of the district court and administrative records brings us to the conclusion that the district court did not clearly err in its 1985 Order by finding that the Association is not a federally recognized tribe. We also" }, { "docid": "9805032", "title": "", "text": "Indians] must have maintained an organized tribal structure.” State of Washington, 641 F.2d at 1372. “[TJribal status is preserved,” we held, “if some defining characteristic of the original tribe persists in an evolving tribal community.” Id. at 1372-73. This requirement has been interpreted liberally in favor of Indian groups. “[Cjhanges in tribal policy and organization attributable to adaptation do not destroy tribal status.” Id. at 1373. We have been particularly sympathetic to changes wrought as a result of dominion by nonnatives. See id.; see also Mashpee Tribe, 592 F.2d at 586 (“if a group of Indians has a set of legal rights by virtue of its status as a tribe, then it ought not to lose those rights absent a voluntary decision made by the tribe”) (emphasis added). In general, we have continued to recognize tribal existence unless the tribe has voluntarily sought, and achieved, assimilation into non-Indian culture. See State of Washington, 641 F.2d at 1373 (“When assimilation is complete, those of the group purporting to be the tribe cannot claim tribal rights.”); Mashpee Tribe, 592 F.2d at 587 (“If all or nearly all members of a tribe chose to abandon the tribe, then, it follows, the tribe would disappear.”). In sum, a relationship between the modern-day entity seeking tribal status and the Indian group of old must be established, but some connection beyond total assimilation is generally sufficient. With these fundamental concepts in mind, we turn to Alaska. Following the United States’ purchase of Alaska in 1867, Congress paid little heed to the region’s natives and was content to leave their legal status unresolved. The courts, however, could not escape the issue so easily. In a series of cases, Judge Matthew Deady, a federal district judge with chambers in the Pioneer Courthouse in Portland, Oregon, but occasionally sitting on the circuit court with jurisdiction extending to Alaska, held that Alaska was not “Indian country” for purposes of either the Indian Intercourse Act or the Revised Statutes of the United States. See United States v. Seveloff, 27 F.Cas. 1021, 1022 (D.Or.1872) (No. 16,252); Waters v. Campbell, 29 F. Cas." }, { "docid": "6714862", "title": "", "text": "Elser v. Gill Net Number One, 246 Cal.App.2d 30, 38, 54 Cal.Rptr. 568, 575 (1966) (“tribe,” applied to California Indians, must “ ‘be understood as synonymous with “ethnic group” rather than as denoting political unity’ ” because tribes in the political sense did not exist in California when Indian fishing rights statute was adopted). . “[I]f a group of Indians has a set of legal rights by virtue of its status as a tribe, then it ought not to lose those rights absent a voluntary decision made by the tribe and its guardian, Congress, on its behalf.” Mashpee Tribe v. New Seabury Corp., 592 F.2d 575, 586 (1st Cir.) (citations omitted), cert. denied, 444 U.S. 866, 100 S.Ct. 138, 62 L.Ed.2d 90 (1979). . Because the district court’s ultimate conclusion was correct, the denial of relief cannot be considered “arbitrary and capricious,” as the Duwamish Tribe contends. The propriety of the relief granted to the Stillaguamish and Upper Skagit Tribes is not at issue in this appeal. CANBY, Circuit Judge, dissenting: I respectfully dissent. The majority opinion quite correctly rejects the conclusion of law that federal recognition is essential to the exercise of treaty rights. As I understand it, the majority opinion states the determinative question to be whether appellants have descended from treaty signatories and have maintained tribal structures reflecting the degree of organization that existed at the time of the treaties, with reasonable allowances for adaptation to changing conditions. Tribal status is preserved “if some defining characteristic of the original tribe persists in an evolving tribal community.” Ante, at pp. 1372-1373. With all of these propositions I agree. My difference with the majority is that I am unable to say that the findings of the district court resolve the determinative question of tribal continuity or provide us with the means to do so upon review. It is true that the district court found that appellants had not functioned since treaty times as “continuous separate, distinct and cohesive Indian cultural or political communit[ies].” United States v. Washington, 476 F.Supp. 1101, 1105, 1106, 1107, 1109, 1110 (W.D.Wash.1979). It also found" }, { "docid": "14355482", "title": "", "text": "Venetie, 856 F.2d 1384, 1387 (9th Cir.1988). Thus, to determine whether the Village and its officers are entitled to immunity from suit, the record must show that the Village constitutes a tribe. An Indian community constitutes a tribe if it can show that (1) it is recognized as such by the federal government, United States v. Sandoval, 231 U.S. 28, 46-47, 34 S.Ct. 1, 5-6, 58 L.Ed. 107 (1913), or (2) it is “a body of Indians of the same or a similar race, united in a community under one leadership or government, and inhabiting a particular though sometimes ill-defined territory.” Montoya v. United States, 180 U.S. 261, 266, 21 S.Ct. 358, 359, 45 L.Ed. 521 (1901); Native Village of Noatak v. Hoffman, 896 F.2d 1157, 1160 (9th Cir.1990), rev’d on other grounds sub nom. Blatchford v. Native Village of Noatak, — U.S. -, 111 S.Ct. 2578, 115 L.Ed.2d 686 (1991). In addition, we have required that the group claiming tribal status show that they are “the modern-day successors” to a historical sovereign entity that exercised at least the minimal functions of a governing body. Native Village of Venetie I.R.A. Council v. Alaska, 944 F.2d 548, 559 (9th Cir.1991). We have previously discussed certain factors that may be considered in determining whether an Alaskan native village constitutes a tribe. First, although organization under the Indian Reorganization Act (“the IRA”), 25 U.S.C. §§ 461-79 (1988) is not in itself dispositive of the Village’s tribal status, it is evidence of the Village’s political cohesiveness, which must be weighed along with the other Montoya factors. Native Village of Venetie, 856 F.2d at 1387. In addition, we have suggested that the regulations governing federal recognition of tribal status, 25 C.F.R. Part 83, may guide a judicial inquiry into this question. Id., (referring to Price v. Hawaii, 764 F.2d 623, 626-28 (9th Cir.1985), cert. denied, 474 U.S. 1055, 106 S.Ct. 793, 88 L.Ed.2d 771 (1986)); Native Village of Venetie IRA Council, 944 F.2d at 557 n. 10. We have held that certain Alaskan native villages constitute tribes for the purpose of 28 U.S.C. § 1362" }, { "docid": "6700544", "title": "", "text": "Washington, 641 F.2d at 1371. Rather, the “proper” inquiry must focus upon the maintenance of an organized tribal structure where “defining characteristics of the original tribe persist in an evolving tribal community.” Id. While a degree of “assimilation” into other cultures is inevitable, it will not result in an abandonment of tribal structure unless the assimilation is “complete.” Id., at 1373. See also Northern Arapahoe Tribe v. Hodel, 808 F.2d 741, 744 (joint occupancy of reservation does not, standing alone, constitute merger or consolidation of two tribes). Thus, I must make certain allowances for evolution and some dispersion attributable to inter-marriage and educational or technological advances. The Colville Confederacy bears the burden of establishing treaty tribe status. United States v. Washington, 730 F.2d 1314, 1316-17 (9th Cir.1984). The “sole purpose” of requiring proof of tribal status is to ensure that the group asserting treaty rights is the group named in the treaty. United States v. Washington, 641 F.2d 1368, 1371 (9th Cir.1981). One of the unfortunate aspects about sitting as a trial court on a case of this kind in 1991, is the immediate awkwardness presented in attempting to apply modern legal Anglo-Saxon principles and precedent to events involving tribal associations which took place over 130 years ago. What we recognize today as a political “leader” or an organized form of government simply does not apply to native American culture of the 19th Century. As the parties agree, Indian culture at the time of the Stevens treaties was vastly more complex than the treaties recognized. Further, the Indians’ cultural and political responses to the encroachment of white settlers was diverse and often, divisive. Inter-tribal and inter-cultural divisions commonly arose amongst formerly cohesive groups over religion and to what extent, if any, Western culture should be adopted into tribal traditions. See generally, Merrill D. Beal, “I Will Fight No More Forever: Chief Joseph and the Nez Perce War, 16-47 (Ballentine Books, 1963). This awkwardness is further exacerbated by the nature of the treaties themselves which were designed and created by Governor Stevens in haste, at a time when he was under" }, { "docid": "6714864", "title": "", "text": "that none of the appellants had “maintained an organized tribal structure in a political sense.” Id. at 1105, 1106, 1108, 1109, 1110. These findings, however, do not take account of the nature and degree of tribal organization existing at the time of the treaties. They are not addressed to the proper requirement that “some defining characteristic of the original tribes persist in an evolving tribal community.” They appear instead to reflect a more stringent requirement of tribal organization — a requirement based upon the erroneous assumption that federal recognition is essential to the exercise of treaty rights. Other findings of the district court reflect the degree to which the assumed need for federal recognition permeated the entire factual inquiry. The following finding regarding the Samish Tribe is typical and illustrative: (25). The Intervenor Samish Tribe exercises no attributes of sovereignty over its members or any territory. It is not recognized by the United ■ States as an Indian governmental or political entity possessing any political powers of government over any individuals or territory. None of its organizational structure, governing documents, membership requirements nor membership roll has been approved or recognized by Congress or the Department of Interior for purposes of administration of Indian affairs.... Id. at 1106. It seems evident in this finding that the “attributes of sovereignty” found to be lacking in the Samish Tribe are those arising from federal recognition. The conclusions of law make quite clear what was meant by the district court in its factual findings that the appellants did not maintain continuous cultural or political communities or organized tribal structures in a political sense. The first conclusion of law recites that fishing rights are communal and “are held today for the use and benefit of the persons who continue to maintain a tribal structure exercising governmental or political powers.” Id. at 1110. The second conclusion then lists certain factors for determining “whether a group of persons have maintained Indian tribal relations and a tribal structure sufficient to constitute them an Indian tribe having a continuing special political relationship with the United States ...” Id. Two" }, { "docid": "6714855", "title": "", "text": "the group named in the treaty. For this purpose, tribal status is preserved if some defining characteristic of the original tribe persists in an evolving tribal community. The tribe need not have acquired organizational characteristics it did not possess when the treaties were signed. The white negotiators imputed to many of the treaty tribes a tribal structure they did not have. A structure that never existed cannot be “maintained.” Furthermore, changes in tribal policy and organization attributable to adaptation do not destroy tribal status. Over a century, change in any community is essential if the community is to survive. Indian tribes in modern America have had to adjust to life under the influence of a dominant non-Indian culture. Note, The Unilateral Termination of Tribal Status, 31 Maine L.Rev. 153, 164 n. 55 (1979). Federal policy has sometimes favored tribal autonomy and sometimes sought to destroy it. See United States v. Washington, 476 F.Supp. at 1103; G. Taylor, The New Deal and American Indian Tribalism 1-16 (1980). A degree of assimilation is inevitable under these circumstances and does not entail the abandonment of distinct Indian communities. See Note, 31 Maine L.Rev. at 164 n. 55. When assimilation is complete, those of the group purporting to be the tribe cannot claim tribal rights. While it might be said that the result is unjust if the tribe has suffered from federal or state discrimination, it is required by the communal nature of tribal rights. To warrant special treatment, tribes must survive as distinct communities. See, e. g., United States v. Antelope, 430 U.S. 641, 646, 97 S.Ct. 1395, 1398, 51 L.Ed.2d 701 (1977); United States v. Mazurie, 419 U.S. 544, 557, 95 S.Ct. 710, 717, 42 L.Ed.2d 706 (1975). The appellants point to their management of interim fisheries, pursuit of individual members’ treaty claims, and social activities as evidence of tribal organization. But the district court specifically found that the appellants had not functioned since treaty times as “continuous separate, distinct and cohesive Indian cultural or political communitpes].” 476 F.Supp. at 1105, 1106, 1107, 1109, 1110. After close scrutiny, we conclude that the" }, { "docid": "6700543", "title": "", "text": "and custom” areas, state lines, fences and political boundaries were unknown. Further, the centralized leadership structure that we recognize today was not a part of the tribal structure. See Verne Ray, Native Villages and Groupings of the Columbia Basin, Pacific Northwest Quarterly Vol. 27, p. Ill (noting wide variations in political units, understanding of which is “hampered by present day confusions with linguistic units, arbitrary Indian Service administration units, and reaffiliations growing out of widespread decimation”). Within a single band, there may have been five or six different leaders, each of equal standing, who “governed” in a particular area of expertise, such as hunting or medicine. Based upon these unique historical groupings, no single identifying label is determinative— i.e. a group identified as a “band” which functioned as a cohesive political unit may fall within the meaning of the word “tribe,” as used by the courts, if it maintained continuous cultural and political cohesion. .Further, in determining treaty tribe status, I am aware that government recognition is not determinative of treaty rights. United States v. Washington, 641 F.2d at 1371. Rather, the “proper” inquiry must focus upon the maintenance of an organized tribal structure where “defining characteristics of the original tribe persist in an evolving tribal community.” Id. While a degree of “assimilation” into other cultures is inevitable, it will not result in an abandonment of tribal structure unless the assimilation is “complete.” Id., at 1373. See also Northern Arapahoe Tribe v. Hodel, 808 F.2d 741, 744 (joint occupancy of reservation does not, standing alone, constitute merger or consolidation of two tribes). Thus, I must make certain allowances for evolution and some dispersion attributable to inter-marriage and educational or technological advances. The Colville Confederacy bears the burden of establishing treaty tribe status. United States v. Washington, 730 F.2d 1314, 1316-17 (9th Cir.1984). The “sole purpose” of requiring proof of tribal status is to ensure that the group asserting treaty rights is the group named in the treaty. United States v. Washington, 641 F.2d 1368, 1371 (9th Cir.1981). One of the unfortunate aspects about sitting as a trial court on a" }, { "docid": "14355481", "title": "", "text": "the Village’s permission to remain. As in Johnson, the Village’s power to apply this ordinance will require a showing of its authority, under federal law, to enact and enforce this ordinance against non-members of the Village. Id. at 1474. C. Sovereign Immunity of the Village The Pucketts and Slawsons contend that the Village is not entitled to protection from suit under the doctrine of sovereign immunity. They argue that the Village fails to meet the prerequisites for the application of sovereign immunity set forth in Oklahoma Tax Commission. We cannot address the effect, if any, of Oklahoma Tax Commission on the question whether the Village possesses sovereign immunity from suit by the Pucketts and Slawsons, because the present record fails to set forth sufficient facts to demonstrate that the Village is an Indian tribe in the political sense, and that the real property it owns is Indian country. “[Sjovereign immunity is an incident of sovereign power, and ... the sovereign power of an Indian community depends on its tribal status.” Alaska v. Native Village of Venetie, 856 F.2d 1384, 1387 (9th Cir.1988). Thus, to determine whether the Village and its officers are entitled to immunity from suit, the record must show that the Village constitutes a tribe. An Indian community constitutes a tribe if it can show that (1) it is recognized as such by the federal government, United States v. Sandoval, 231 U.S. 28, 46-47, 34 S.Ct. 1, 5-6, 58 L.Ed. 107 (1913), or (2) it is “a body of Indians of the same or a similar race, united in a community under one leadership or government, and inhabiting a particular though sometimes ill-defined territory.” Montoya v. United States, 180 U.S. 261, 266, 21 S.Ct. 358, 359, 45 L.Ed. 521 (1901); Native Village of Noatak v. Hoffman, 896 F.2d 1157, 1160 (9th Cir.1990), rev’d on other grounds sub nom. Blatchford v. Native Village of Noatak, — U.S. -, 111 S.Ct. 2578, 115 L.Ed.2d 686 (1991). In addition, we have required that the group claiming tribal status show that they are “the modern-day successors” to a historical sovereign entity that" }, { "docid": "9805051", "title": "", "text": "over tribal reservations and members. First, the exercise of such authority may be preempted by federal law. Second, it may unlawfully infringe on the right of reservation Indians to make their own laws and be ruled by them. The two barriers are independent because either, standing alone, can be a sufficient basis for holding state law inapplicable to activity undertaken on the reservation or by tribal members. 448 U.S. at 142-43, 100 S.Ct. at 2583-84 (emphasis added, citations and quotation omitted). Thus, we reject Alaska’s contention that inherent sovereignty cannot be looked to as a bar to state jurisdiction. . The Secretary of the Interior has promulgated regulations setting forth certain criteria which Indian groups in the continental United States must satisfy in order to achieve \"tribal\" status. See 25 C.F.R. § 83 (1989). These regulations essentially mirror the factors set forth above — historical origins and continuity. See id. § 83.7(a)-(c). . See generally Harring, The Incorporation of Alaskan Natives Under American Law: United States and Tlingit Sovereignty, 1867-1900, 31 Ariz.L.Rev. 279, 283-84 (1989). . One commentator has suggested that Alaskan native villages should not be considered sovereigns because of unresolved questions concerning whether such villages occupy “Indian country.\" See Comment, Alaskan Native Indian Villages: The Question of Sovereign Rights, 28 Santa Clara L.Rev. 875 (1988). But see Note, The Uncertain Legal Status of Alaskan Natives After Native Village of Stevens v. Alaska Management & Planning: Exposing the Fallacious Distinctions Between Alaska Natives and Lower 48 Indians, 31 Ariz.L.Rev. 405, 419-21 (1989) (“[T]he federal government created reservations to 'forestall white-Indian conflicts over lands,’ not to recognize the sovereignty of indigenous groups.”) (quoting F. Cohen, Handbook of Federal Indian Law 743 (1982 ed.)). However, tribal sovereignty is not coterminous with Indian country. Cf. 25 C.F.R. § 83.7(b) (1989) (in order to achieve federal recognition, a group of Indians need not inhabit formal \"Indian country”; inhabitation of “a specific area\" or a \"community viewed as American Indian” is sufficient). Rather, tribal sovereignty is manifested primarily over the tribe's members. See Duro v. Reina, 495 U.S. 676, 110 S.Ct. 2053, 2060, 109" }, { "docid": "6700541", "title": "", "text": "regulatory power. I find that the issue before me is whether The Confederated Tribes of Colville Reservation may exercise authority, as a separate Treaty Tribe, to administer or regulate off-reservation treaty fishing rights based upon the fact that some of its members can trace their ancestry to parties to the Yakima or the Nez Perce Treaties of 1855. Discussion In order to decide what I have identified as the issue in this case, I must first consider who can hold treaty rights, or wherein the authority to control the exercise of those rights is vested. Rights, enumerated under treaties, are reserved to communities or “tribes” rather than to individuals. Washington v. Washington State Commercial Passenger Fishing Vessel Ass’n, 443 U.S. 658, 671-73, 99 S.Ct. 3055, 3067-68, 61 L.Ed.2d 823 (1979); United States v. Washington, 476 F.Supp. 1101, 1110 (W.D.Wash.1979) aff'd, 641 F.2d 1368 (9th Cir.1981), cert. denied, 454 U.S. 1143, 102 S.Ct. 1001, 71 L.Ed.2d 294 (1982). Because individuals have no enforceable off-reservation fishing rights, when and how an individual may use treaty rights is an “internal affair” of the tribe. Settler v. Lameer, 507 F.2d 231, 237 (9th Cir.1974). Accordingly, the Ninth Circuit has held that any “tribe” which seeks to assert fishing rights as a treaty signatory must first establish treaty tribe status. United States v. Suquamish Indian Tribe, 901 F.2d 772, 776 (9th Cir.1990). Treaty tribe status may be established by “a group of citizens of Indian ancestry [which has] descended from a treaty signatory and has maintained an. organized tribal structure.” Id., citing United States v. Washington, 520 F.2d -676, 693 (9th Cir.1975); see also United States v. Washington, 459 F.Supp. 1020, 1037 (W.D.Wash.1978), aff'd, 645 F.2d 749 (9th Cir.1981) (intervention requires prima facie evidence of treaty status and tribal organization, noting however, that neither Congress nor the Executive has defined “tribe” in terms of federal relationships with Indians). In early historic time in the Interior Plateau, there were at least three levels of political organization: village, band and tribe. Palmer, Direct Testimony, p. 1-3. Although aboriginal bands and villages fished and gathered food in “usual" }, { "docid": "6714863", "title": "", "text": "majority opinion quite correctly rejects the conclusion of law that federal recognition is essential to the exercise of treaty rights. As I understand it, the majority opinion states the determinative question to be whether appellants have descended from treaty signatories and have maintained tribal structures reflecting the degree of organization that existed at the time of the treaties, with reasonable allowances for adaptation to changing conditions. Tribal status is preserved “if some defining characteristic of the original tribe persists in an evolving tribal community.” Ante, at pp. 1372-1373. With all of these propositions I agree. My difference with the majority is that I am unable to say that the findings of the district court resolve the determinative question of tribal continuity or provide us with the means to do so upon review. It is true that the district court found that appellants had not functioned since treaty times as “continuous separate, distinct and cohesive Indian cultural or political communit[ies].” United States v. Washington, 476 F.Supp. 1101, 1105, 1106, 1107, 1109, 1110 (W.D.Wash.1979). It also found that none of the appellants had “maintained an organized tribal structure in a political sense.” Id. at 1105, 1106, 1108, 1109, 1110. These findings, however, do not take account of the nature and degree of tribal organization existing at the time of the treaties. They are not addressed to the proper requirement that “some defining characteristic of the original tribes persist in an evolving tribal community.” They appear instead to reflect a more stringent requirement of tribal organization — a requirement based upon the erroneous assumption that federal recognition is essential to the exercise of treaty rights. Other findings of the district court reflect the degree to which the assumed need for federal recognition permeated the entire factual inquiry. The following finding regarding the Samish Tribe is typical and illustrative: (25). The Intervenor Samish Tribe exercises no attributes of sovereignty over its members or any territory. It is not recognized by the United ■ States as an Indian governmental or political entity possessing any political powers of government over any individuals or territory. None of" }, { "docid": "20004312", "title": "", "text": "action including whether there is a rational connection between the facts found and the choice made.” J. Andrew Lange, Inc. v. FAA, 208 F.3d 389, 391 (2d Cir.2000) (internal questions omitted). The objective of the court’s inquiry is “whether there has been a clear error of judgment.” Citizens to Preserve Overton Park, 401 U.S. at 416, 91 S.Ct. 814, 28 L.Ed.2d 136. B. Background 1. Federal Acknowledgment Regulations The BIA has established policies and procedures for acknowledging that certain American Indian groups exist as tribes. Federal acknowledgment of tribal existence by the DOI is a prerequisite to the protection, services, and benefits of the Federal government available to Indian tribes by virtue of their status as tribes. 25 C.F.R. § 83.2. Acknowledgment also establishes a government-to-government relationship with the United States and entitles a tribe to the immunities and privileges available to other federally acknowledged Indian tribes. Id. See also Cherokee Nation v. Georgia, 30 U.S. 1, 17, 5 Pet. 1, 8 L.Ed. 25 (1831). The acknowledgment regulations apply to “those American Indian groups indigenous to the continental United States which are not currently acknowledged as Indian tribes by the Department” and are “intended to apply to groups that can establish a substantially continuous tribal existence and which have functioned as autonomous entities throughout history until the present.” Id. § 83.3. Because a tribe is a political, not a racial, classification, Morton v. Mancari, 417 U.S. 535, 553, 94 S.Ct. 2474, 41 L.Ed.2d 290 (1974), the essential requirement for acknowledgment is continuity of tribal existence. 59 Fed.Reg. 9280, 9282 (Feb. 25, 1994). The acknowledgment regulations contain seven criteria, each of which must be satisfied by the petitioner: (a) identification as an American Indian entity on a substantially continuous basis since 1900; (b) existence as a distinct community from historical times to the present; (c) existence of political influence or authority from historical times to the present; (d) a governing document including membership criteria; (e) membership is composed of individuals who descend from a historical Indian tribe; (f) membership is composed of persons who are not members of an acknowledged tribe;" }, { "docid": "7794988", "title": "", "text": "25 C.F.R. § 83 (1993). The Association is not registered in the Federal Register as a recognized Indian tribe, nor does it fit the criteria set forth in the regulations. The regulations exclude from tribal status “associations, organizations, corporations or groups of any character, formed in recent times.” 25 C.F.R. § 83.3(c). The Association was formed in 1940 in a cooperative effort to take possession of the Ranch. Both the ALJ and the district court found that the families who formed the Association had little, if any, unity prior to ratification of the Association’s Articles and By-laws. Even after ratification, during its thirty-six year tenure on the Ranch, the Association failed to form a cohesive group. Evidence indicated that, due to the tactics of a dominant family, the Forrests, membership was not harmonious and the Association actually lost members. The Association lacked historical unity. Evidence introduced at the administrative and district court levels showed that government officials, historians, and scholars loosely defined the “Pit River Indian Tribe” as the members of eleven bands located in a large geographical circle in northeastern California. In contrast, the “Association” originally was composed of thirteen families that came from two different areas of northeastern California. The Association, as such, has no historical unity. See Native Village of Venetie I.R.A. Council v. Alaska, 944 F.2d 548, 559 (9th Cir.1991) (group claiming tribal status must show they are “modern-day successors” to a historical sovereign entity that exercised political and social authority); 25 C.F.R. § 83.7(a)(5). As we recognized in Price, “[t]o allow any group of persons to ‘bootstrap’ themselves into formal ‘tribal’ status — thereby obtaining the federal economic and legal benefits attendant upon tribal status — simply because they are all members of a larger aboriginal ethnic body would be to ignore the concept of ‘tribe’ as a distinct sovereignty set apart by historical and ethnological boundaries.” Price, 764 F.2d at 627; see also, United States v. Wheeler, 435 U.S. 313, 322-23, 98 S.Ct. 1079, 1085-86, 55 L.Ed.2d 303 (1978) (recognizing that current powers of Indian tribes are generally inherent powers which inured prior to" }, { "docid": "6700542", "title": "", "text": "an “internal affair” of the tribe. Settler v. Lameer, 507 F.2d 231, 237 (9th Cir.1974). Accordingly, the Ninth Circuit has held that any “tribe” which seeks to assert fishing rights as a treaty signatory must first establish treaty tribe status. United States v. Suquamish Indian Tribe, 901 F.2d 772, 776 (9th Cir.1990). Treaty tribe status may be established by “a group of citizens of Indian ancestry [which has] descended from a treaty signatory and has maintained an. organized tribal structure.” Id., citing United States v. Washington, 520 F.2d -676, 693 (9th Cir.1975); see also United States v. Washington, 459 F.Supp. 1020, 1037 (W.D.Wash.1978), aff'd, 645 F.2d 749 (9th Cir.1981) (intervention requires prima facie evidence of treaty status and tribal organization, noting however, that neither Congress nor the Executive has defined “tribe” in terms of federal relationships with Indians). In early historic time in the Interior Plateau, there were at least three levels of political organization: village, band and tribe. Palmer, Direct Testimony, p. 1-3. Although aboriginal bands and villages fished and gathered food in “usual and custom” areas, state lines, fences and political boundaries were unknown. Further, the centralized leadership structure that we recognize today was not a part of the tribal structure. See Verne Ray, Native Villages and Groupings of the Columbia Basin, Pacific Northwest Quarterly Vol. 27, p. Ill (noting wide variations in political units, understanding of which is “hampered by present day confusions with linguistic units, arbitrary Indian Service administration units, and reaffiliations growing out of widespread decimation”). Within a single band, there may have been five or six different leaders, each of equal standing, who “governed” in a particular area of expertise, such as hunting or medicine. Based upon these unique historical groupings, no single identifying label is determinative— i.e. a group identified as a “band” which functioned as a cohesive political unit may fall within the meaning of the word “tribe,” as used by the courts, if it maintained continuous cultural and political cohesion. .Further, in determining treaty tribe status, I am aware that government recognition is not determinative of treaty rights. United States v." }, { "docid": "9805030", "title": "", "text": "See Montana v. United States, 450 U.S. 544, 564, 101 S.Ct. 1245, 1257, 67 L.Ed.2d 493 (1981) (“the Indian tribes retain their inherent power to determine tribal membership, to regulate domestic relations among members, and to prescribe rules of inheritance for members”); Washington v. Confederated Tribes of the Colville Indian Reservation, 447 U.S. 134, 152, 100 S.Ct. 2069, 2080, 65 L.Ed.2d 10 (1980) (“[t]he power to tax ... is a fundamental attribute of sovereignty which the tribes retain unless divested of it by federal law or necessary implication of their dependent status”). Sovereign authority is presumed until Congress affirmatively acts to take such authority away. See, e.g., Wheeler, 435 U.S. at 323, 98 S.Ct. at 1086 (“until Congress acts, the tribes retain their existing sovereign powers”). One noted commentator (a distinguished member of this Court) explains: “The point to be emphasized is that when a question of tribal power arises, the relevant inquiry is whether any limitation exists to prevent the tribe from acting, not whether any authority exists to permit the tribe to act.” W. Canby, American Indian Law 71-72 (2d ed. 1988) (emphasis in original). In accordance with this doctrine of inherent tribal sovereignty, it follows that the Indian groups to be recognized as sovereigns should be those entities which historically acted as bodies politic, particularly in the periods prior to their subjugation by non-natives. There is, however, an additional prerequisite that an Indian group must meet in order to achieve present-day recognition as a sovereign: the modern-day group must demonstrate some relationship with or connection to the historical entity. See United States v. State of Washington, 641 F.2d 1368, 1372-73 (9th Cir.1981), cert. denied, 454 U.S. 1143, 102 S.Ct. 1001, 71 L.Ed.2d 294 (1982); Mashpee Tribe v. New Seabury Corp., 592 F.2d 575, 585-87 (1st Cir.), cert. denied, 444 U.S. 866, 100 S.Ct. 138, 62 L.Ed.2d 90 (1979). In United States v. State of Washington, we held that in order for a group of Indians to enjoy the benefits of a treaty between the federal government and the tribe from which the Indians descended, the “group [of" }, { "docid": "9805031", "title": "", "text": "W. Canby, American Indian Law 71-72 (2d ed. 1988) (emphasis in original). In accordance with this doctrine of inherent tribal sovereignty, it follows that the Indian groups to be recognized as sovereigns should be those entities which historically acted as bodies politic, particularly in the periods prior to their subjugation by non-natives. There is, however, an additional prerequisite that an Indian group must meet in order to achieve present-day recognition as a sovereign: the modern-day group must demonstrate some relationship with or connection to the historical entity. See United States v. State of Washington, 641 F.2d 1368, 1372-73 (9th Cir.1981), cert. denied, 454 U.S. 1143, 102 S.Ct. 1001, 71 L.Ed.2d 294 (1982); Mashpee Tribe v. New Seabury Corp., 592 F.2d 575, 585-87 (1st Cir.), cert. denied, 444 U.S. 866, 100 S.Ct. 138, 62 L.Ed.2d 90 (1979). In United States v. State of Washington, we held that in order for a group of Indians to enjoy the benefits of a treaty between the federal government and the tribe from which the Indians descended, the “group [of Indians] must have maintained an organized tribal structure.” State of Washington, 641 F.2d at 1372. “[TJribal status is preserved,” we held, “if some defining characteristic of the original tribe persists in an evolving tribal community.” Id. at 1372-73. This requirement has been interpreted liberally in favor of Indian groups. “[Cjhanges in tribal policy and organization attributable to adaptation do not destroy tribal status.” Id. at 1373. We have been particularly sympathetic to changes wrought as a result of dominion by nonnatives. See id.; see also Mashpee Tribe, 592 F.2d at 586 (“if a group of Indians has a set of legal rights by virtue of its status as a tribe, then it ought not to lose those rights absent a voluntary decision made by the tribe”) (emphasis added). In general, we have continued to recognize tribal existence unless the tribe has voluntarily sought, and achieved, assimilation into non-Indian culture. See State of Washington, 641 F.2d at 1373 (“When assimilation is complete, those of the group purporting to be the tribe cannot claim tribal rights.”); Mashpee" }, { "docid": "19729387", "title": "", "text": "granted to the tribe by the federal government, either by explicit recognition or implicitly through a course of dealing. As the Supreme Court recently explained, however, the proper analysis is just the reverse: “The powers of Indian tribes are, in general, ‘inherent powers of a limited sovereignty which has never extinguished’. [Quotation from United States v. Wheeler, 435 U.S. 313, 322-23, 98 S.Ct. 1079, 1086, 55 L.Ed.2d 303 (1978) (emphasis in original) ]. Bottomly, 599 F.2d at 1065-1066. The Ninth Circuit also does not require official federal recognition in order that an Indian tribe can assert sovereign immunity. It does, however, require “tribal status”. In State of Alaska v. Native Village of Venetie, 856 F.2d 1384, 1387 (9th Cir.1988), the Court stated: [Tjribal status [is] arguable in the event of IRA [Indian Reorganization Act] organization. * >jc # sfc * >j< If the IRA does not settle the matter, the inquiry would shift to whether [the Indian group] has been otherwise recognized as a tribe by the federal government. See, e.g., Price [v. State of Hawaii], 764 F.2d at [623] 626-628 [9th Cir.1985], Failing there, tribal status may still be based on conclusions drawn from careful scrutiny of various historical factors.. See, e.g., Mashpee Tribe v. New Seabury Corp., 592 F.2d 575, 582-88 (1st. Cir.), cert. denied, 444 U.S. 866, 100 S.Ct. 138, 62 L.Ed.2d 90 (1979). State of Alaska, 856 F.2d at 1387. In fact, sovereign immunity continues “even after dissolution of the tribal government.” Bottomly, 599 F.2d at 1066, citing, United States v. United States Fidelity & Guaranty Co., 309 U.S. 506, 512, 60 S.Ct. 653, 656, 84 L.Ed. 894 (1940). In order to determine whether the Paiute Tribe has “tribal status” conferring sovereign immunity on the tribe, this Court must either examine whether the federal recognition should be upheld, or undertake a “careful scrutiny of various historical factors.” Whether the federal recognition will be upheld involves two issues: whether federal recognition is a non-justiciable political question, and if not, what amount of deference this Court must give to the administrative determination. Early authority indicates that federal determination" }, { "docid": "6714854", "title": "", "text": "exercise treaty rights. Moreover, although some of the other considerations mentioned by the district court may be relevant, they do not adequately define the controlling principles. We must examine the record in light of these principles to determine whether the district court reached the correct result. C. The Proper Inquiry The appellants’ members do not seek compensation as individuals for violations of their ancestors’ rights. Cf. Menominee Tribe v. United States, 391 U.S. at 407, 88 S.Ct. at 1708 (compensation sought for abrogation of treaty). The appellants seek to exercise treaty rights as tribes. They may do so only if they are the tribes that signed the treaties. We have defined a single necessary and sufficient condition for the exercise of treaty rights by a group of Indians descended from a treaty signatory: the group must have maintained an organized tribal structure. United States v. Washington, 520 F.2d at 693. This single condition reflects our determination that the sole purpose of requiring proof of tribal status is to identify the group asserting treaty rights as the group named in the treaty. For this purpose, tribal status is preserved if some defining characteristic of the original tribe persists in an evolving tribal community. The tribe need not have acquired organizational characteristics it did not possess when the treaties were signed. The white negotiators imputed to many of the treaty tribes a tribal structure they did not have. A structure that never existed cannot be “maintained.” Furthermore, changes in tribal policy and organization attributable to adaptation do not destroy tribal status. Over a century, change in any community is essential if the community is to survive. Indian tribes in modern America have had to adjust to life under the influence of a dominant non-Indian culture. Note, The Unilateral Termination of Tribal Status, 31 Maine L.Rev. 153, 164 n. 55 (1979). Federal policy has sometimes favored tribal autonomy and sometimes sought to destroy it. See United States v. Washington, 476 F.Supp. at 1103; G. Taylor, The New Deal and American Indian Tribalism 1-16 (1980). A degree of assimilation is inevitable under these circumstances" } ]

[ { "docid": "23645806", "title": "", "text": "court action against the United States for negligent supervision. 28 U.S.C. § 2675(a) makes the filing of a claim with the appropriate agency a prerequisite to jurisdiction of the courts. As we have stated “Section 2675 is designed, in conjunction with Section 2672, to provide a procedure under which the government may investigate, evaluate and consider settlement of a claim. This purpose requires that the Notice of Claim provide sufficient information both to permit an investigation and to estimate the claim’s worth.” Keene Corp. v. United States, 700 F.2d 836, 842 (2d Cir.1983), cert. denied, 464 U.S. 864, 104 S.Ct. 195, 78 L.Ed.2d 171 (1984); see Shipek v. United States, 752 F.2d 1352, 1354 (9th Cir.1985); Bush v. United States, 703 F.2d 491, 493-94 (11th Cir.1983); Douglas v. United States, 658 F.2d 445, 447 (6th Cir.1981); Adams v. United States, 615 F.2d 284, 289 (5th Cir.), clarified, 622 F.2d 197 (1980). Thus, an administrative claim need not meet formal pleading requirements. All that is necessary is that a claim be specific enough to serve the purposes intended by Congress in enacting § 2675(a) — “to ease court congestion and avoid unnecessary liti gation, while making it possible for the Government to expedite the fair settlement of tort claims asserted against the United States.” S.Rep. No. 1827, 89th Congress, 2d Sess. 2 (1966), reprinted in 1966 U.S. Code Cong. & Ad.News (“USCCAN”) 2515, 2516. Toward this end, the government requires all claimants to submit Standard Form 95, a one page claim form requesting a “description of accident” and the “nature and extent of injury”. Appellants’ administrative claim met these requirements. By stating the cause of the injury, the name of the employee who committed the assault, and the date and location of the attack, the claim notified the agency of sufficient factual circumstances to enable it to investigate the matter. Although the claim supplied no facts evidencing negligent supervision and did not allege all the factual elements of such a theory of liability, a reasonably thorough investigation of the incident should have uncovered any pertinent information in the government’s possession relating" } ]

[ { "docid": "22982780", "title": "", "text": "the various federal district courts. In its infancy, the FTCA granted federal agencies little authority to administratively settle FTCA claims, and FTCA claimants could, at their discretion, file suit in federal district court without first subjecting their claims to agency attention. McNeil v. United States, 508 U.S. 106, 112 n. 7, 113 S.Ct. 1980, 124 L.Ed.2d 21 (1993). But, in 1966, Congress amended the FTCA and established a new framework for the administrative consideration and settlement of claims. Id. Specifically, Congress broadened the settlement authority of agencies through the enactment of 28 U.S.C. § 2672, which provides that federal agency heads, “in accordance with regulations prescribed by the Attorney General, may consider, ascertain, adjust, determine, compromise, and settle any [FTCA] claim.” Along with § 2672, Congress enacted 28 U.S.C. § 2675(a), which provides that “[a]n [FTCA] action shall not be instituted upon a claim against the United States ... unless the claimant shall have first presented the claim to the appropriate Federal agency and his claim shall have been finally denied by the agency.” The Supreme Court has recognized that “[t]he most natural reading of [§ 2675(a) ] indicates that Congress intended to require complete exhaustion of Executive remedies before invocation of the judicial process.” McNeil, 508 U.S. at 112, 113 S.Ct. 1980. While § 2675(a) bars suit unless a claim is first “presented” to the appropriate federal agency, the FTCA does not expressly articulate in § 2671, its definitions section, what information must be included in a properly “presented” claim. Purportedly acting pursuant to Congress’s grant of rulemaking authority in § 2672, the Attorney General promulgated 28 C.F.R. § 14.2(a) to define the presentment requirement. Specifically, § 14.2(a) provides: For purposes of the provisions of 28 U.S.C. § 2401(b), 2672, and 2675, a claim shall be deemed to have been presented when a Federal agency receives from a claimant, his duly authorized agent or legal representative, [1] an executed Standard Form 95 or other written notification of an incident, [2] accompanied by a claim for money damages in a sum certain for injury to or loss of property, personal" }, { "docid": "17836911", "title": "", "text": "of the Government while acting within the scope of his office or employment, unless the claimant shall have first presented the claim to the appropriate Federal agency and his claim shall have been finally denied by the agency in writing and sent by certified or registered mail. The failure of an agency to make final disposition of a claim within six months after it is filed shall, at the option of the claimant anytime thereafter, be deemed a final denial of the claim for purposes of this section. 28 U.S.C. § 2675(a); see also McNeil v. United States, 508 U.S. 106, 113, 113 S.Ct. 1980, 124 L.Ed.2d 21 (1993) (“The FTCA bars claimants from bringing suit in federal court until they have exhausted their administrative remedies.”). According to the initial complaint, “[a]s to ... any claims for which Plaintiffs are required to exhaust administrative remedies prior to suit, Plaintiffs have made the appropriate administrative filings, and will amend this complaint when those are resolved.” Compl. I ¶ 3. The amended complaint includes an eighth claim for relief under the FTCA, described as “[njegligent failure to prevent summary execution, arbitrary detention, cruel, inhuman or degrading treatment, torture, wrongful death and assault and battery[,]” as well as an additional count for intentional infliction of emotional distress. Compl. II at 22-23. The plaintiffs assert that their FTCA claims “were presented to the Department of State and Central Intelligence Agency” and that they “have exhausted administrative remedies[.]” Id. ¶ 9; see also Pis.’ Opp. II at 3 (“Plaintiffs waited six months, as required by § 2675(a), for formal disposition of these claims before filing the Amended Complaint that includes claims based upon the FTCA.”). The plaintiffs argue that McNeil is inapplicable because, unlike the plaintiff in that case, their initial complaint was not based upon FTCA jurisdiction. Pis.’ Opp. II at 4. The question presented is not, as the plaintiffs suggest, whether the initial complaint was explicitly based on FTCA jurisdiction but whether that pleading advanced claims against the United States for money damages for injury “caused by the negligent or wrongful act or" }, { "docid": "7115249", "title": "", "text": "the enactment of the FTCA, the government has generally waived its sovereign immunity from tort liability for the negligent or wrongful acts or omissions of its agents who act within the scope of their employment.”). No suit may be filed under the FTCA, however, unless the claimant has made a timely application to the agency involved for administrative settlement and the claim has been denied or not acted upon for 6 months. 28 U.S.C. § 2675; see also 28 U.S.C. § 2401(b) (“A tort claim against the United States shall be forever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues or unless action is begun within six months after the date of mailing, by certified or registered mail, of notice of final denial of the claim by the agency to which it was presented.”). The purpose of this administrative claim procedure is to allow the agency to consider possible settlement “without the need for filing suit and possible expensive and time-consuming litigation.” S.Rep. No. 1327, 89th Cong., 2d Sess. 3 (1966), U.S.Code Cong. & Admin.News 1966, pp. 2515, 2517. In McNeil v. United States, 508 U.S. 106, 113 S.Ct. 1980, 124 L.Ed.2d 21 (1993), the United States Supreme Court held that prior filing of an administrative claim is a jurisdictional prerequisite for any judicial proceeding. Id. at 110-12, 113 S.Ct. 1980 (holding that full exhaustion of the administrative remedy is necessary before a lawsuit can be initiated). Accordingly, the Government created Standard Form 95 for this purpose, though an administrative claim does not need to be submitted on a special form, as long as the agency receives timely and reasonable notice of a claim of tortious wrongdoing. Williams v. United States, 693 F.2d 555, 557 (5th Cir.1982) (“[W]e have held that no particular form or manner of giving such notice is required as long as the agency is somehow informed of the fact of and amount of the claim within the two year period ... neither a Form 95 nor any other particular form of claim is required[.]”). In" }, { "docid": "8826421", "title": "", "text": "shall, if it is in the interest of justice, transfer such action ... to any other such court in which the action ... could have been brought at the time it was filed[.] 28 U.S.C. § 1631; see also Texas Peanut Farmers v. United States, 409 F.3d 1370, 1373-75 (Fed.Cir.2005) (quoting Phillips v. Seiter, 173 F.3d 609, 610 (7th Cir.1999) (citations omitted)) (“‘A compelling reason for transfer is that the [plaintiff], whose case if transferred is for statute of limitations purposes deemed by section 1631 to have been filed in the transferor court ... will be time-barred if his case is dismissed and thus has to be filed anew in the right court.’ ”). Since neither the TSCA, the LPPPA, nor the RLPHRA mandate compensation by the federal government for damages sustained as a result of the breach of the duties imposed by such statutes, the Federal Tort Claims Act would be the proper vehicle for relief. See 28 U.S.C. §§ 2671 et seq. The Federal Tort Claims Act, however, requires that a claimant file an administrative claim with the appropriate federal agency prior to filing suit. See 28 U.S.C. § 2675(a) (“[Claimant shall have first presented the claim to the appropriate Federal agency and his' claim shall have been finally denied by the agency in writing and sent by certified or registered mail.”); see also McNeil v. United States, 508 U.S. 106, 113, 113 S.Ct. 1980, 124 L.Ed.2d 21 (1993) (“The most natural reading of the [FTCA] indicates that Congress intended to require complete exhaustion of [administrative] remedies before invocation of the judicial process____The FTCA bars claimants from bringing suit in federal court until they have exhausted their administrative remedies.”); 28 C.F.R. § 14.2(a) (“A claim shall be deemed to have been presented when a Federal agency receives from a claimant ... an executed Standard Form 95 or other written notification of an incident, accompanied by a claim for money damages in a sum certain for injury to or loss of property, personal injury, or death alleged to have occurred by reason of the incident^]”). Plaintiff has failed to" }, { "docid": "16440532", "title": "", "text": "the same extent as a private party for certain torts of federal employees acting within the scope of their employment.” United States v. Orleans, 425 U.S. 807, 813, 96 S.Ct. 1971, 48 L.Ed.2d 390 (1976). “This unequivocal waiver of immunity must be construed narrowly and the ‘limitations and conditions upon which the Government consents to be sued must be strictly observed and exceptions thereto are not to be implied.’ ” Miller v. United States, 463 F.3d 1122, 1123 (10th Cir.2006) (quoting In re Franklin Savings Corp., 385 F.3d 1279, 1289-90 (10th Cir.2004)). “The FTCA bars claimants from bringing suit in federal court until they have exhausted their administrative remedies.” McNeil v. United States, 508 U.S. 106, 113, 113 S.Ct. 1980, 124 L.Ed.2d 21 (1993). Specifically, the FTCA states, in pertinent part, that [a]n action shall not be instituted upon a claim against the United States for money damages for injury or loss of property or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, unless the claimant shall have first presented the claim to the appropriate Federal agency and his claim shall have been finally denied by the agency in writing and sent by certified or registered mail. 28 U.S.C. § 2675(a). This exhaustion requirement is “jurisdictional and cannot be waived.” Bradley v. United States by Veterans Admin., 951 F.2d 268, 270 (10th Cir.1991). “In other words, the FTCA bars would-be tort plaintiffs from bringing suit against the government unless the claimant has previously submitted a claim for damages to the offending agency, because Congress wants agencies to have an opportunity to settle disputes before defending against litigation in' court.” Smoke Shop, LLC v. United States, 761 F.3d 779, 786 (7th Cir.2014) (citing McNeil, 508 U.S. at 112 & n. 7, 113 S.Ct. 1980). We have stated that the jurisdictional statute can be satisfied by a claimant “filing (1) a written statement sufficiently describing the injury to enable the agency to begin its own investigation, and (2) a sum certain" }, { "docid": "21112416", "title": "", "text": "Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). To determine whether it has jurisdiction over the claim, a court may consider materials outside the pleadings. Herbert v. Nat’l Acad. of Scis., 974 F.2d 192, 197 (D.C.Cir.1992). III. ANALYSIS Absent a specific waiver, the United States is protected from suit by the doctrine of sovereign immunity. Fed. Deposit Ins. Corp. v. Meyer, 510 U.S. 471, 475, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994). The FTCA extends a limited waiver of sovereign immunity, which provides a remedy against the Federal Government for some torts committed by federal employees in the scope of their employment. 28 U.S.C. § 1346(b); Sloan v. Dep’t of Housing and Urban Dev., 236 F.3d 756, 759 (D.C.Cir.2001). A. Exhaustion of Remedies The FTCA bars claimants from bringing suit until they have exhausted their administrative remedies. McNeil v. United States, 508 U.S. 106, 113, 113 S.Ct. 1980, 124 L.Ed.2d 21 (1993); see also 28 U.S.C. § 2675(a) (“[a]n action shall not be instituted upon a claim against the United States ... unless the claimant shall have first presented the claim to the appropriate Federal agency.”). The exhaustion requirement is jurisdictional. GAF Corp. v. United States, 818 F.2d 901, 904 (D.C.Cir.1987). In order to exhaust administrative remedies under the FTCA, a plaintiff must have presented the agency with “(1) a written statement sufficiently describing the injury to enable the agency to begin its own investigation and (2) a sum-certain damages claim,” and the agency must have either denied the claim in writing or failed to provide a final disposition within six months of the filing of the claim. Id. at 905. For example, in Murphy v. United States, 121 F.Supp.2d 21, 27 (D.D.C.2000), aff'd, 64 Fed.Appx. 250 (D.C.Cir.2003), a Secret Service agent had a work-related confrontation with his supervisor and then complained to management that he had been assaulted by the supervisor. Secret Service management concluded that the agent’s allegations lacked merit. The agent then filed an administrative claim alleging assault, negligent failure to investigate, and negligent failure to manage the supervisor. Later in court, the" }, { "docid": "22982813", "title": "", "text": "as disingenuous. The majority’s reading of section 2675 also breaks a new path in law and puts this court at odds with other circuits. To my knowledge, no other court has read section 2675 to require a proof of one’s authority to represent the claimant. Rather, the judicial consensus is that section 2675 mandates only “minimal notice” consisting of “(1) a written statement sufficiently describing the injury to enable the agency to begin its own investigation, and (2) a sum-certain damages claim.” GAF Corp. v. United States, 818 F.2d 901, 905 (D.C.Cir.1987); see also Ahmed, 30 F.3d at 516-17; Santiago-Ramirez v. Sec. of the Dep’t of Defense, 984 F.2d 16, 19 (1st Cir.1993); Bradley v. United States, 951 F.2d 268, 270 (10th Cir.1991); Tidd v. United States, 786 F.2d 1565, 1567-68 (11th Cir.1986); Johnson ex rel. Johnson v. United States, 788 F.2d 845, 848-49 (2d Cir.1986), overruled on other grounds by Sheridan v. United States, 487 U.S. 392, 108 S.Ct. 2449, 101 L.Ed.2d 352 (1988); Warren, 724 F.2d at 780; Douglas v. United States, 658 F.2d 445, 447 (6th Cir.1981); Adams v. United States, 615 F.2d 284, 289-90 (5th Cir.1980). The requirement of the written statement describing the injury is self-explanatory: it comes from the language of section 2675(a) requiring that the claimant not institute an action in court “unless [he] shall have first presented the claim to the appropriate Federal agency and his claim shall have been finally denied by the agency in writing.” 28 U.S.C. § 2675(a) (emphasis added); see also 28 U.S.C. § 2401(b) (establishing a statute of limitations for actions under the FTCA, pursuant to which such actions are barred “unless it is presented in writing to the appropriate Federal agency within two years”). The sum-certain requirement also comes from the language of section 2675, which prohibits claimants from bringing an action “for any sum in excess of the amount of the claim presented to the federal agency.” 28 U.S.C. § 2675(b); see White-Squire v. U.S. Postal Serv., 592 F.3d 453, 457-58 (3d Cir.2010) (characterizing the sum-certain requirement as jurisdictional because it is mentioned in section" }, { "docid": "15418260", "title": "", "text": "its examination to the face of Palay’s complaint and took its allegations at face value, just as a court does in evaluating a Rule 12(b)(6) motion to dismiss for failure to state a claim. Likewise, we shall accept the allegations in Palay’s complaint as true and grant him the benefit of every reasonable inference that may be drawn from those allegations. Johnson, 330 F.3d at 1001 (Rule 12(b)(1)); American United Logistics, 319 F.3d at 926 (Rule 12(b)(6)). A. Exhaustion The FTCA permits an individual to bring suit in federal court against the United States for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, 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)(1). Pursuant to this provision, federal inmates may bring suit for injuries they sustain while incarcerated as a consequence of the negligence of prison officials. United States v. Muniz, 374 U.S. 150, 83 S.Ct. 1850, 10 L.Ed.2d 805 (1963). However, the plaintiff may not bring such a suit unless he has first presented his claim to the appropriate federal agency and that agency has denied the claim. 28 U.S.C. § 2675(a). [A] claim shall be deemed to have been presented when a Federal agency receives from a claimant ... an executed Standard Form 95 or other written notification of an incident, accompanied by a claim for money damages in a sum certain for ... personal injury ... alleged to have occurred by reason of the incident .... 28 C.F.R. § 14.2(a). A plaintiffs failure to exhaust administrative remedies before he brings suit mandates dismissal of the claim. McNeil v. United States, 508 U.S. 106, 113, 113 S.Ct. 1980, 1984, 124 L.Ed.2d 21 (1993). Palay, of course, completed a Standard Form 95 and submitted it to the appropriate agency — the Bureau of Prisons — for review. That" }, { "docid": "1330748", "title": "", "text": "essential, claim-processing rules. See, e.g., Kwai Fun Wong v. Beebe, 732 F.3d 1030, 1039 (9th Cir.2013) (en banc) (concluding that section 2401 constitutes a non-jurisdictional claim-processing rule); Glade ex rel. Lundskow v. United States, 692 F.3d 718, 723 (7th Cir.2012) (exhaustion requirement is not jurisdictional and may be waived). In either event, we certainly have some “leeway to choose among threshold grounds for denying audience to a case.” Sinochem Int’l Co. Ltd. v. Malaysia Int’l Shipping Corp., 549 U.S. 422, 431, 127 S.Ct. 1184, 167 L.Ed.2d 15 (2007) (citations and internal quotation marks omitted). Determining that this lawsuit should have been dismissed without prejudice due to failure to exhaust would be the narrowest approach to disposing of this appeal, because it is undisputed that Mr. Sanchez has never presented his claim to the Department of Health and Human Services. See McNeil v. United States, 508 U.S. 106, 113, 113 S.Ct. 1980, 124 L.Ed.2d 21 (1993); Celestine v. Mount Vernon Neighborhood Health Ctr., 403 F.3d 76, 84 (2d Cir.2005) (affirming a dismissal where failure to exhaust barred the claim “and would continue to bar it even if any possible unjust effects of disparities between state and federal statutes of limitations were remedied by equitable tolling.”). Mr. Sanchez would then presumably present the claim to the agency within sixty days of final entry of the judgment of dismissal; the agency would deny the claim as untimely, and Mr. Sanchez would file suit anew. At that point, the FTCA’s exhaustion requirement arguably would have been satisfied, leaving only the question of timeliness. With the aid of the Westfall Act, Mr. Sanchez would then present exactly the same arguments that he now presents, asking us to find that this suit was commenced within two years of when his claim accrued. Little commends such an approach unless it is truly necessary. Nor does any party request it, each presumably recognizing that it would add expense and delay without offering any countervailing pragmatic benefit. Accordingly, as we did in Gonzalez, we find it most appropriate to forgo the question of administrative exhaustion and go straight to" }, { "docid": "23542185", "title": "", "text": "117, 100 S.Ct. 352. That is consistent “with the general purpose of statutes of limitations: ‘to protect defendants against stale or unduly delayed claims.’ ” Credit Suisse Sec. (USA) LLC v. Simmonds, — U.S. -, 132 S.Ct. 1414, 1420, 182 L.Ed.2d 446 (2012) (quoting John R. Sand & Gravel, 552 U.S. at 133, 128 S.Ct. 750). McNeil v. United States, 508 U.S. 106, 113 S.Ct. 1980, 124 L.Ed.2d 21 (1993), does not detract from our conclusion. McNeil strictly construed the administrative exhaustion requirement in 28 U.S.C. § 2675(a), holding that an FTCA action filed before exhaustion had been completed could not proceed in the district court even where the litigation had not substantially progressed. 508 U.S. at 111-13, 113 S.Ct. 1980. The exhaustion requirement, unlike the § 2401(b) limitations period, is tied by explicit statutory language to jurisdiction, and was deemed “jurisdictional” in Brady v. U.S., 211 F.3d 499, 502 (9th Cir.2000). The “straightforward statutory command” in § 2675(a), McNeil explained, served “[t]he interest in orderly administration of this body of litigation.” Id. at 112, 113 S.Ct. 1980. Judge Bea maintains that McNeil’s concern about the “orderly administration of [FTCA] litigation” with respect to the exhaustion-of-remedies requirement in § 2675(a) compels us also to treat § 2401(b)’s six-month filing deadline as jurisdictional. We disagree. Strict enforcement of an exhaustion requirement serves to assure a particular administrative interest — namely, the interest in assuring that agency officials have a full opportunity to investigate and consult internally with regard to claims for compensation due to negligence by agency employees. Further, that purpose recognized by the Supreme Court in McNeil — reducing court congestion by keeping claims out of court until an administrative agency has had a chance to settle them — is not implicated by § 2401(b)’s sixth-month post-exhaustion limitations period. See id. at 111-12, 112 n. 8, 113 S.Ct. 1980. Where agency exhaustion is required, there is notice of the claim and of the need for information collection, as well as an opportunity to settle the claim, well before suit is filed in court. . In short, nothing in the text," }, { "docid": "6580992", "title": "", "text": "claims she was. She argues that she was unable to present a sum certain claim because a doctor recommended that she undergo additional procedures. To the contrary, this prescription enabled her to comply with the sum certain requirement: she could simply have asked the doctor to estimate the cost of the procedures and then have included that estimate on her Standard Form 95. Cf., Bialowas, 443 F.2d at 1049-50 (noting claimant failed even to “attach the doctors’ reports or medical bills as directed by the instructions on the back of Form 95”). If the actual cost of treatment proved higher than this initial estimate, White-Squire could have amended her claim to account for the disparity by taking advantage of the means provided to do so. See 28 C.F.R. § 14.2(c); 28 U.S.C. § 2675(b). A claimant’s failure to take advantage of these available procedures cannot justify judicial tinkering with the United States’s waiver of its sovereign immunity and the subject matter jurisdiction of the federal courts. Finally, requiring all claimants to present a sum certain claim for damages advances Congress’s purpose in requiring administrative presentment, which is to encourage the settlement of meritorious claims. Tucker v. United States Postal Serv., 676 F.2d 954, 958 (3d Cir.1982). The Government has “considerately provided [claimants] with convenient and expeditious machinery for settlement of [their] alleged damages and injuries” through the administrative presentment requirements. Bialowas, 443 F.2d at 1050. Prompt settlement of claims provides considerable benefits to both the courts and the parties by avoiding costly litigation and compensating the injured party in a timely manner. Tucker, 676 F.2d at 958; see also McNeil v. United States, 508 U.S. 106, 112, 113 S.Ct. 1980, 124 L.Ed.2d 21 (1993) (noting that Congress’s “interest in [the] orderly administration of’ the “vast multitude of [FTCA] claims” is “best served by adherence to the straightforward statutory command”). Providing a sum certain claim for damages is central to this policy of requiring presentment of claims to the appropriate federal agency because it enables the agency head to determine whether the claim can legally be settled by the agency and," }, { "docid": "17836910", "title": "", "text": "the most heinous of crimes against international law. See Princz, 26 F.3d at 1168 (atrocities during the Holocaust); Hwang Geum Joo, 332 F.3d at 680 (sex slaves for Japanese soldiers). The initial complaint — while alleging violations of the law of nations — therefore provides no grounds on which the Court may find that the United States has consented to be sued here. The amended complaint added claims against the United States under the FTCA, which “grants federal district courts jurisdiction over claims arising from certain torts committed by federal employees in the scope of their employment, and waives the government’s sovereign immunity from such claims.” Sloan v. HUD, 236 F.3d 756, 759 (D.C.Cir.2001) (citing 28 U.S.C. §§ 1346(b), 2674). Prior to filing suit under the FTCA, however, a putative claimant must exhaust an administrative process: An action shall not be instituted upon a claim against the United States for money damages for injury or loss of property or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, unless the claimant shall have first presented the claim to the appropriate Federal agency and his claim shall have been finally denied by the agency in writing and sent by certified or registered mail. The failure of an agency to make final disposition of a claim within six months after it is filed shall, at the option of the claimant anytime thereafter, be deemed a final denial of the claim for purposes of this section. 28 U.S.C. § 2675(a); see also McNeil v. United States, 508 U.S. 106, 113, 113 S.Ct. 1980, 124 L.Ed.2d 21 (1993) (“The FTCA bars claimants from bringing suit in federal court until they have exhausted their administrative remedies.”). According to the initial complaint, “[a]s to ... any claims for which Plaintiffs are required to exhaust administrative remedies prior to suit, Plaintiffs have made the appropriate administrative filings, and will amend this complaint when those are resolved.” Compl. I ¶ 3. The amended complaint includes an eighth claim" }, { "docid": "8826422", "title": "", "text": "an administrative claim with the appropriate federal agency prior to filing suit. See 28 U.S.C. § 2675(a) (“[Claimant shall have first presented the claim to the appropriate Federal agency and his' claim shall have been finally denied by the agency in writing and sent by certified or registered mail.”); see also McNeil v. United States, 508 U.S. 106, 113, 113 S.Ct. 1980, 124 L.Ed.2d 21 (1993) (“The most natural reading of the [FTCA] indicates that Congress intended to require complete exhaustion of [administrative] remedies before invocation of the judicial process____The FTCA bars claimants from bringing suit in federal court until they have exhausted their administrative remedies.”); 28 C.F.R. § 14.2(a) (“A claim shall be deemed to have been presented when a Federal agency receives from a claimant ... an executed Standard Form 95 or other written notification of an incident, accompanied by a claim for money damages in a sum certain for injury to or loss of property, personal injury, or death alleged to have occurred by reason of the incident^]”). Plaintiff has failed to exhaust administrative remedies prior to filing suit as required by the Federal Tort Claims Act. Therefore, a federal district court, upon transfer, also would not have jurisdiction over Plaintiffs claims. See Ahmed v. United States, 30 F.3d 514, 516 (4th Cir.1994) (citation omitted) (“[T]he requirement of filing an administrative claim is jurisdictional and may not be waived.”). Accordingly, the court has determined that it would not be in the interest of justice to transfer Plaintiffs claims under the TSCA, the LPPPA, or the RLPHRA to a federal district court. 4. The United States Court of Federal Claims Has Jurisdiction To Adjudicate Plaintiff's Breach Of Contract Claim. The Government argued that, because all of the claims in this case sound in tort, this court lacks jurisdiction. See Gov’t Mot. Dismiss/S.J. at 6. The Complaint, however, alleges a claim for breach of contract that is independent of Plaintiffs tort claims. The Complaint alleges that HUD breached the Contract, because HUD did not inspect or treat defective paint surfaces as required by Section J. See Compl. U13; see" }, { "docid": "15697446", "title": "", "text": "is a mandatory jurisdictional prerequisite to filing a lawsuit against the United States. Jackson v. United States, 730 F.2d 808, 809 (D.C.Cir.1984). Therefore, if a plaintiff does not meet these requirements, a court lacks jurisdiction to entertain a tort claim against the United States. Id. Section 2675(a) reads, in pertinent part, An action shall not be instituted upon a claim against the United States ... unless the claimant shall have first presented the claim to the appropriate Federal agency 28 U.S.C. Section 2675(a). Section 2401(b) requires such a claim to be presented to the appropriate federal agency “within two years after such claim accrues or unless action is begun within six months after ... notice of final denial of the claim by the agency to which it was presented.” Congress did not include the “presentment” requirements to frustrate plaintiffs who have tort claims against the United States. GAF, 818 F.2d at 917-18. Rather, the reason for such requirements is to give the implicated agency an opportunity to investigate claims that are lodged against it and further, to provide an opportunity for settlement discussions between the agency and the claimant to take place, when such discussions are appropriate. Id. In reviewing the presentment requirement contained in 2675(a), the Supreme Court has ruled that pro se litigants should be held to the same standard as litigants who have retained counsel. McNeil v. United States, 508 U.S. 106, 113, 113 S.Ct. 1980, 1984, 124 L.Ed.2d 21 (1993). In announcing this rule, the Court stated ‘“in the long run, experience teaches that strict adherence to the procedural requirements specified by the legislature is the best guarantee of evenhanded administration of the law.’” Id. (quoting Mohasco Corp. v. Silver, 447 U.S. 807, 826, 100 S.Ct. 2486, 2497, 65 L.Ed.2d 532 (1980)). Consequently, under the FTCA prior to filing suit, a claimant must “make a presentment of his claims to an agency setting forth ‘(1) a written statement sufficiently describing the injury to enable the agency to begin its investigation, and (2) a sum-certain damages claim.’” Verner v. United States Government, 804 F. Supp 381, 383" }, { "docid": "2951161", "title": "", "text": "remedies. 28 U.S.C. § 2675(a). We have repeatedly held that the exhaustion requirement is jurisdictional in nature and must be interpreted strictly: This is particularly so since the [Act] waives sovereign immunity. Any such waiver must be strictly construed in favor of the United States. Section 2675(a) establishes explicit prerequisites to the filing of suit against the Government in district court. It admits of no exceptions. Given the clarity of the statutory language, we cannot enlarge that consent to be sued which the Government, through Congress, has undertaken so carefully to limit. Jerves v. United States, 966 F.2d 517, 521 (9th Cir.1992) (internal quotations and citations omitted); see also Cadwalder v. United States, 45 F.3d 297, 300 (9th Cir.1995). We are not allowed to proceed in the absence of fulfillment of the conditions merely because dismissal would visit a harsh result upon the plaintiff. See United States v. Kubrick, 444 U.S. 111, 117-18, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979). With regard to the exhaustion requirement, the Supreme Court has stated that “in the long run, experience teaches that strict adherence to the procedural requirements specified by the legislature is the best guarantee of even-handed administration of the law.” McNeil v. United States, 508 U.S. 106, 113, 113 S.Ct. 1980, 124 L.Ed.2d 21 (1993), quoting Mohasco Corp. v. Silver, 447 U.S. 807, 826, 100 S.Ct. 2486, 65 L.Ed.2d 532 (1980). B Federal regulations appear to control this appeal. 28 C.F.R. § 14.2 governs the question of when an administrative, claim is presented for purposes of the Act. It states: “a claim shall be deemed to have been presented when a Federal agency receives from a claimant ... an executed Standard Form 95 or other written.notification of an incident....” Id. (emphasis added). Similarly, 39 C.F.R. § 912.5, which governs damage arising out of the operation of the USPS, maintains, that “a claim shall be deemed to have been presented when the U.S. Postal Service receives from a claimant ... an executed Standard Form 95 ... or other written notification of an incident....” Id. In spite of the clear language of the" }, { "docid": "6580993", "title": "", "text": "claim for damages advances Congress’s purpose in requiring administrative presentment, which is to encourage the settlement of meritorious claims. Tucker v. United States Postal Serv., 676 F.2d 954, 958 (3d Cir.1982). The Government has “considerately provided [claimants] with convenient and expeditious machinery for settlement of [their] alleged damages and injuries” through the administrative presentment requirements. Bialowas, 443 F.2d at 1050. Prompt settlement of claims provides considerable benefits to both the courts and the parties by avoiding costly litigation and compensating the injured party in a timely manner. Tucker, 676 F.2d at 958; see also McNeil v. United States, 508 U.S. 106, 112, 113 S.Ct. 1980, 124 L.Ed.2d 21 (1993) (noting that Congress’s “interest in [the] orderly administration of’ the “vast multitude of [FTCA] claims” is “best served by adherence to the straightforward statutory command”). Providing a sum certain claim for damages is central to this policy of requiring presentment of claims to the appropriate federal agency because it enables the agency head to determine whether the claim can legally be settled by the agency and, if so, from where the payment should come. See 28 U.S.C. § 2672; Bialowas, 443 F.2d at 1050. Moreover, it goes without saying that an agency cannot consider settling a claim if it cannot ascertain the claim’s value. VI. White-Squire was aware of the requirement that she present a sum certain claim for damages. In addition to the text of the statute, 28 U.S.C. §§ 1346(b), 2675(b), the regulation, 28 C.F.R. § 14.2(a), and our prior case law confirming the requirement of submitting a sum certain, see, e.g., Bialowas, 443 F.2d at 1049-50, the USPS informed White-Squire’s counsel on two separate occasions, the August 18 and August 22 letters, that she was required to submit a sum certain amount for injuries or losses arising from the accident. The USPS directed her to the relevant statutory and regulatory provisions and also sent two Standard Form 95 claim forms with instructions in bold typeface that “[a] claim must be for a specific amount.” Nevertheless, White-Squire failed to comply with the administrative presentment requirement. In the absence of" }, { "docid": "14302566", "title": "", "text": "limited waiver of sovereign immunity, which provides a remedy against the Federal Government for some torts committed by federal employees in the scope of their employment. 28 U.S.C. § 1346(b); Sloan v. Dep’t of Housing and Urban Dev., 236 F.3d 756, 759 (D.C.Cir.2001). The FTCA bars claimants from bringing suit until they have exhausted their administrative remedies. McNeil v. United States, 508 U.S. 106, 113, 113 S.Ct. 1980, 124 L.Ed.2d 21 (1993); see also 28 U.S.C. § 2675(a) (“[a]n action shall not be instituted upon a claim against the United States ... unless the claimant shall have first presented the claim to the appropriate Federal agency.”). The exhaustion requirement is a mandatory jurisdictional prerequisite, GAF Corp. v. United States, 818 F.2d 901, 905 (D.C.Cir.1987); Jackson v. United States, 730 F.2d 808, 809 (D.C.Cir.1984), which the Court cannot excuse. As Plaintiff, Mr. Thomas bears the burden of proving by a preponderance of the evidence that the Court has subject matter jurisdiction to review his claims. See Evans, 166 F.3d at 647; see also McNutt, 298 U.S. at 182-83, 56 S.Ct. 780. In order to exhaust administrative remedies under the FTCA, a plaintiff must have presented the agency with “(1) a written statement sufficiently describing the injury to enable the agency to begin its own investigation and (2) a sum-certain damages claim,” and the agency must have either denied the claim in writing or failed to provide a final disposition within six months of the filing of the claim. GAF Corp., 818 F.2d at 905; accord Bembenista v. United States, 866 F.2d 493, 499 (D.C.Cir.1989); Murphy v. United States, 121 F.Supp.2d 21, 27 (D.D.C.2000), aff'd, 64 Fed.Appx. 250 (D.C.Cir.2003). The claimant must present the administrative claim to the relevant agency within two years of the claim’s accrual. See 28 U.S.C. §§ 2401(b), 2675(a). A tort claim accrues “by the time a plaintiff has discovered both his injury and its cause.” Sexton v. United States, 832 F.2d 629, 633 (D.C.Cir.1987). 1. 2001 Claim Was Not Timely The Court will dismiss all claims relating to Mr. Thomas’s allegations of failure to diagnose, inform, warn," }, { "docid": "10928950", "title": "", "text": "employee of the Government while acting within the scope of his employment, unless the claimant shall have first presented the claim to the appropriate Federal agency and his claim shall have been finally denied by the agency in writing and sent by certified or registered mail. 28 U.S.C. § 2675(a). The enabling regulations of this section of the FTCA state that: (a) ... [a] claim shall be deemed to have been presented when a Federal agency receives from a claimant, his duly authorized agent or legal representative, an executed Standard Form 95 or other written notification of an incident, accompanied by a claim for money damages in a sum certain for injury to or loss of property, personal injury... (b)(1) A claim shall be presented to the Federal agency whose activities gave rise to the claim. When a claim is presented to any other Federal agency, that agency shall transfer it forthwith to the appropriate agency, if the proper agency can be identified from the claim, and advise the claimant of the transfer. 28 C.F.R. § 14.2. “Section 2675 is designed ... to provide a procedure under which the government may investigate, evaluate and consider settlement of a claim. This purpose requires that the Notice of Claim provide sufficient information both to permit an investigation and to estimate the claim’s worth.” Keene Corp. v. United States, 700 F.2d 836, 842 (2d Cir.1983). Preferably, plaintiff should have filed a Standard Form 95 with the Postal Service. However, an administrative claim need not meet formal pleading requirements. -All that is necessary is that a claim be specific enough to serve the purposes intended by Congress in enacting §• 2675(a) — “to ease court congestion and avoid unnecessary litigation, while making it possible for the Government to expedite the fair settlement of tort claims asserted against the United States.” Johnson by Johnson v. United States, 788 F.2d 845, 848-49 (2d Cir.1986). Even with this relaxed pleading requirement, “lack of a sum certain and the generality of the information provided” will be fatal to a claim. Richland-Lexington Airport District v. Atlas Properties, Inc., 854" }, { "docid": "20107570", "title": "", "text": "shields the Federal Government and its agencies from suit.” Fed. Deposit Ins. Corp. v. Meyer, 510 U.S. 471, 475, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994) (citations omitted). In order to bring suit under the FTCA, a claimant must first exhaust his or her administrative remedies. Specifically, section 2675(a) provides that: An action shall not be instituted upon a claim against the United States for money damages for injury or ... or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, unless the claimant shall have first presented the claim to the appropriate Federal agency and his claim shall have been finally denied by the agency in writing and sent by certified or registered mail. The failure of an agency to make final disposition of a claim within six months after it is filed shall, at the option of the claimant any time thereafter, be deemed a final denial of the claim for purposes of this section. 28 U.S.C. § 2675(a). The plain language of the FTCA therefore bars a plaintiff from filing suit before he or she has exhausted these administrative remedies. McNeil v. United States, 508 U.S. 106, 112, 113 S.Ct. 1980, 124 L.Ed.2d 21 (1993) (“The most natural reading of the statute indicates that Congress intended to require complete exhaustion of Executive remedies before invocation of the judicial process.”) (emphasis added). Here, there is no dispute that Plaintiff did not administratively exhaust his remedies under the FTCA prior to filing the instant suit against the United States. This Court therefore lacks subject matter jurisdiction over Plaintiffs FTCA claims. Plaintiffs arguments to the contrary are without merit, as Plaintiff himself appears to concede given his decision to re-file his suit against the United States after HHS denied his administrative claim. See supra at pp. 24-25. Specifically, Plaintiff advances three arguments in opposition to the motion to dismiss. First, he contends that the United States should be precluded from “invoking] the affirmative defense of failure to exhaust” because “staff" }, { "docid": "16886454", "title": "", "text": "money damages for ... loss of property ... unless the claimant shall have first presented the claim to the appropriate Federal agency and his claim shall have been finally denied by the agency in writing.” In other words, the FTCA bars would-be tort plaintiffs from bringing suit against the government unless the claimant has previously submitted a claim for damages to the offending agency, because Congress wants agencies to have an opportunity to settle disputes before defending against litigation in court. See McNeil v. United States, 508 U.S. 106, 112 & n. 7, 113 S.Ct. 1980, 124 L.Ed.2d 21 (1993). The term “claim” is undefined in the statute. But a corresponding regulation instructs that a proper administrative claim under the FTCA contains four elements: (1) notification of the incident; (2) a demand for money damages in a sum certain; (3) the title or legal capacity of the person signing; and (4) evidence of the person’s authority to represent the claimant. 28 C.F.R. § 14.2(a); see also Kanar v. United States, 118 F.3d 527, 528 (7th Cir.1997). Several courts consider 28 U.S.C. § 2675(a)’s exhaustion requirement to go to the court’s subject-matter jurisdiction over the FTCA action, see, e.g., Valadez-Lopez v. Chertoff, 656 F.3d 851, 855 (9th Cir.2011); Estate of Trentadue ex rel. Aguilar v. United States, 397 F.3d 840, 852 (10th Cir.2005), and one of our early decisions confronting the meaning of the FTCA’s administrative claim requirement, Best Bearings Co. v. United States, 463 F.2d 1177, 1179 (7th Cir.1972), operated under this same assumption. For many of those courts (though not Best Bearings), it followed that the definition in 28 C.F.R. § 14.2(a) was not authoritative, because the Attorney General lacked the delegated power from Congress to determine the extent of Article III jurisdiction. See, e.g., GAF Corp. v. United States, 818 F.2d 901, 920 & n. 110 (D.C.Cir.1987). However, our court no longer treats § 2675(a) as a jurisdictional prerequisite. See Glade ex rel. Lundskow v. United States, 692 F.3d 718, 723 (7th Cir.2012). And for good reason: For the federal courts to adjudicate a case, there must be" } ]

[ { "docid": "22549693", "title": "", "text": "Mr. Justice STRONG delivered the opinion of the court. The sort of stoves known as “ base-burners,” or self-feeding stoves, had been made and they were well known years before either of the complainants’ patents were granted, and it is not asserted that merely as base-burning stdves they arc within the monopoly of the patents.- The inventions claimed are alleged improvements in the structure and arrangement of such stoves. They consist in what is described as a new combination-of* old. and known devices producing a new mannfacture;'name'ly, a,stove uniting iu itself alhthe advantages of a, reservoir stove, and those of a i;evertible-draft stove which prevents the products of the combustion in the firé-pot from passing up, around, and over the reservoir, thereby heating the fuel therein so as to expel its gases, and cause their explosion as well as their escape into the apartments where the stove may be placed. All the-devices of which the alleged combination is made are confessedly old. No claim is made for any one of them singly, as an independent invention. It must be conceded that a new combination, if it produces new and useful results, is patentable, though all the constituents of the combination were well known and in common use before the combination was made. But the results must be a product of the combination, and not a mere aggregate of several results each the complete product of one of the combined elements. Combined results are not necessarily a novel result, nor are they an old result obtained in a new and improved manner. Merely bringing old devices into juxtaposition, and there allowing each to work out its own effect without the production of something novel, is not invention. No one by bringing together several old devices without producing a new and useful'result the joint product of the elements of the combination and something more than an aggregate of old results, can-acquire a right to prevent . others from using the sanie devices, either singly or in other coriibiuations, or, even if a new and useful result is obtained, Can prevent others from" } ]

[ { "docid": "18335439", "title": "", "text": "more facile, economical, or efficient way. In determining whether or not the combination of elements in the present case is patentable we must be governed by two well-defined principles of law: (1) Where each element in the combination performs its function unaffected and unmodified by the action of the others, if there is no coaetion of these elements with one another, and if their combined result is the result of each element performing its function in its own way, unmodified by the others, each element contributing its share to the work, then such combination is a mere aggregation and is unpatentable. Richards v. Chase Elevator Co., 158 U. S. 299, 15 S. Ct. 831, 39 L. Ed. 991; Brinkerhoff v. Aloe, 146 U. S. 515, 13 S. Ct. 221, 36 L. Ed. 1068; Reckendorfer v. Faber, 92 U. S. 347, 23 L. Ed. 719; Everlasting Furniture Brace Co. v. Wittliff et al. (C. C. A.) 44 F.(2d) 129; Angier and Angier Corp. v. Nehring Electrical Works (C. C. A.) 45 F.(2d) 354. (2) It is not requisite to the patentability of a combination of old mechanical elements that each element should, in addition to performing its own function, modify the function performed by one or more of the other elements of the combination. It is sufficient if the combination of the old elements is new, and if the combined elements are capable of producing a novel and useful result or an old result in a more facile, economical, or efficient way. New York Scaffolding Co. v. Whitney (C. C. A.) 224 F. 452, and cases cited therein. To appellant’s argument that the patented device in suit is an unpatentable aggregation of old' elements, appellee replies that the argument would be sound if in the combination in controversy there was no co-operation between the various elements of the claims which produced a new and useful result. This is essentially true, and, unless the combination of elements in their eorelation produces a different force, or effect,. or result, from the sum of that which is produced by their separate parts, the device" }, { "docid": "6993596", "title": "", "text": "; if not so, it is only an aggregation of separate elements.” Reckendorfer v. Faber, 92 U. S. 347, 357. “ In a patentable combination of old elements, all the constituents must so enter into it as that each qualifies every other; to draw an illustration from another branch of the law, they must be joint tenants of. the domain of the invention, seized each of every part, per my et per tout, and not mere tenants in common, with separate interests and estates. It must form either a new machine of a distinct character and function, or produce a result due to the joint and co-operating action of all the elements, and which is not the mere adding together of separate contributions. Otherwise it is only a mechanical juxtaposition, and not a vital union.” Pickering v. McCullough, 104 U. S. 310, 318. “ It is true that such a fireplace heater, by reason of the fuel magazine, was a better heater' than before, just as the outstanding stove with its similar fuel magazine was a better heater than a similar stove without such a fuel magazine. But the improvement in the fireplace heater was the result merely of the single change produced by the introduction of the fuel magazine, but one element in the combination. The new and improved result in the utility of a fireplace heater cannot be said to be due to anything in the combination of the elements which compose it, in any other sense than that it arises from bringing together old and well-known separate elements, which, when thus brought together, operate separately, each in its own old way. There is no specific quality of the result which cannot be definitely assigned to the independent action of a single element. There is, therefore, no patentable novelty in the aggregation of the several elements, considered in itself.” Thatcher Heating Co. v. Burtis, 121 U. S. 286, 294. Tested by these principles, we think it evident that there is no invention in the device now before us. It. is claimed that its effect is to prevent the" }, { "docid": "15785244", "title": "", "text": "for the court uses the following language: “Combined results are not necessarily a novel result, nor are they an old result obtained in a new and improved manner. Merely bringing old devices into juxtaposition, and there allowing each to work out its own effect without the production of something novel, is not invention.” In Richards v. Chase Elevator Company, 158 U. S. 299, the court, at page 302, 15 S. Ct. 831, 833, 39 L. Ed. 991, says: “It is not claimed that there is any novelty in any one of the elements of the above combination. They are all perfectly well known, and, if not known in the combination described, they are known in combinations so analogous that the- court is at liberty to judge of itself whether there be any invention in using them in the exact combination claimed. * * * Unless the combination accomplishes some new result, the mere multiplicity of elements does not make it patentable. So long as each element performs some old and well-known function, the result is not a patentable combination, but an aggregation of elements. Indeed, the multiplicity^ of elements may go on indefinite-. ly without creating a patentable combination, unless by their collocation a new result be produced.” ‘ In Moore v. Saunders, 247 F. 314 (C. C. A. 8), Judge Hook speaking for the court says, at page 317: ? “To be sure the new assemblage accomplishes as an entirety rtxore than either old element did in separate operation, and in a way the elements were, as was said below, ‘successively co-opex-ative.’ But the eo-op-eration was like that of the successive changes of horses in a coach journey from London to Bath. Those out of London, their task done, dropped their burden at Maidenhead; others picked it up there, and carried it to Newbury; and so on to destination. There was, of course, a ‘successive co-operation’; but in the sense of the patent law a patentable combination of old elexnents means more than that. In Pickering v. McCullough, 104 U. S. 310, 26 L. Ed. 749, the court expressed" }, { "docid": "22631270", "title": "", "text": "for supporting the ball', while the rib or former presses it on the inside, and thus shapes its corresponding outside, is old, and is not of itself claimed as the invention of Nimmo. The alleged invention, then, consists merely in supplying to the .apparatus described by Salvetat a mould for supporting the ball and giving shape externally to the crucible. • We are clearly of opinion that this is not patentable. It comes plainly within the rule, as stated by Mr. Justice Strong, in Hailes, v. Van Wormer (20 Wall. 353, 368), where he said “. All the devices of which the alleged combination is made are confessedly old. No claim is made for any one of them singly, as an independent invention. It must be conceded that a new combination, if it produces new and useful results, is patentable, though all the constituents of the combination were well known and in common use before the combination was made. But the results must be a product of the combination, and not a mere aggregate of several results, each the complete product of one of the combined elements. Combined resultsaré not necessarily a novel result, nor are they an old result obtained in a new and improved manner. Merely bringing old devices into juxtaposition, and there allowing each to work out its own effect, without - the production of something novel, is not invention.” “The combination, to be patentable,” said Mr. Justice Hunt, in Reckendorfer v. Faber (92 U. S. 347, 357), “ must produce a different force or effect, or result, in the combined forces or processes, from that given by their separate parts. There must be a new result produced by their union : if not so, it is only an aggregation of separate elements.” In Nimmo’s apparatus, it is perfectly clear that all the elements of the, combination are old, and that each operates only in the old way. Beyond the separate and well-known results produced by them severally, no one of them contributes to the combined result any new feature ; no. one of them adds to" }, { "docid": "5250967", "title": "", "text": "art, I can find nothing even remotely suggestive of invention in anything which the plaintiff claims to nave done.” The decision of Judge Rose was affirmed by this court. Knight v. Rieger, 212 Fed. 935, 129 C. C. A. 455. The court in its opinion, among other things, said: “In other words, as apjiears to us, appellant merely brings these two factors into juxtaposition and concurrent use,- but does not in fact produce any new or novel combination within the meaning and intent of the patent law. As we see the matter, it comes in reality to the question of the relative desirability of different modes of construction neither of which involves any display ot inventive genius.” Also in the case of Dodge Manufacturing Co. v. Collins, 106 Fed. 936, 46 C. C. A. 53, this court said: “The effect of this use of old devices In the construction of the McNeal split wood pulley was to strengthen it, and thus add to its durability; but it did not produce a new effect or result. The doctrine that a combination of old devices in a patent to be sustained must produce a new result is thus stated in Reckendorfer v. Faber, 92 U. S. 347 [23 L. Ed. 719]: ‘The combination, to be patentable, must produce a different force or effect, or result in the combined forces or processes, from that given by their separate parts. There must be a new result produced by their union. If not so, it is only an aggregation of separate elements.’ ” This court in the case of Gale Manufacturing Co. v. May, 229 Fed. 575, 143 C. C. A. 613, also announced the same rule. This case is directly in point as respects the saw of the Benthall patent. It appears that the saw is old in the art, and also appears that there is no co-operation function between the protected point and the gullet and the throat, formed by the sides of the teeth meeting at an acute angle. From what we have said we are of opinion that the Benthall saw" }, { "docid": "15683739", "title": "", "text": "But there are important qualifications to this rule. First, it is not an invariable one. Webster Loom Co. v. Higgins, supra, and Knapp v. Morss, 150 U. S. 221, 227, 14 S. Ct. 81, 37 L. Ed. 1059. Again, such a new combination of old elements is not irrebuttable proof of invention, but merely, as we have seen, “evidence” of it. Webster Loom Co. v. Higgins, supra; Knapp v. Morss, supra; National Tube Co. v. Aiken (C. C. A. 6) 163 F. 254, 261. In the third place, in the language ,of Mr. Justice Strong, in Hailes v. Van Wormer, supra, “the results must be a product of the combination, and not a mere aggregate of several results, each the complete product of one of the combined elements.” In other words, as was stated by the late Judge Gilbert of this court, in Pelton Water Wheel Co. v. Doble, 190 F. 760, 766: “In order to be patentable, a combination of elements must in their co-relation produce a different force, or effect, or result, from the sum of that which is produced by their separate parts.” See, also, Pickering v. McCullough, supra; Knapp v. Morss, supra. In the fourth place, and most important of all, “an instrument or manufacture which is the result of mechanical skill merely is not patentable. Mechanical skill is one thing; invention is a different thing. Perfection of workmanship, however much it may * * * diminish expense, is not patentable. The distinction between mechanical skill, with its conveniences and advantages and inventive genius, is recognized in all the cases.” Reckendorfer v. Faber, 92 U. S. 347, 356, 357, 23 L. Ed. 719. See, also, National Tube Co. v. Aiken, supra, at pages 260, 261 of 163 F.; H. J. Heinz Co. v. Cohn, supra; Keszthelyi v. Doheny Stone Drill Co. (C. C. A. 9) 59 F. (2d) 3, 7, 8. We turn now to apply the foregoing principles to the instant case. On the subject of the prior art and of the lack of invention, the master found as follows: “Summing up the prior art" }, { "docid": "15785245", "title": "", "text": "not a patentable combination, but an aggregation of elements. Indeed, the multiplicity^ of elements may go on indefinite-. ly without creating a patentable combination, unless by their collocation a new result be produced.” ‘ In Moore v. Saunders, 247 F. 314 (C. C. A. 8), Judge Hook speaking for the court says, at page 317: ? “To be sure the new assemblage accomplishes as an entirety rtxore than either old element did in separate operation, and in a way the elements were, as was said below, ‘successively co-opex-ative.’ But the eo-op-eration was like that of the successive changes of horses in a coach journey from London to Bath. Those out of London, their task done, dropped their burden at Maidenhead; others picked it up there, and carried it to Newbury; and so on to destination. There was, of course, a ‘successive co-operation’; but in the sense of the patent law a patentable combination of old elexnents means more than that. In Pickering v. McCullough, 104 U. S. 310, 26 L. Ed. 749, the court expressed the requisite in this way: ‘In a patentable combination of old elements, all the constituents must so enter into it as that each qualifies every othex\\’ “There must be a eoaetion between them, and not a mere hitching up of separate contributions, each one of which continues independently to perform its customary function; otherwise, there is but a mechanical juxtaposition that is not patentable.” In Reckendorfer v. Faber, 92 U. S. 347, 23 L. Ed. 719, which is the more or less famous “pencil case” known to patent law, Mr. Justice Hunt, at page 357 of 92 U. S., summarizes his views in the following language: “The combination, to be patentable, must produce a different force or effect, or result in the combined forces or processes, from that given by their separate parts. There must be a new result produced by their union: if not so, it is only an aggregation of separate elements.” The same views are again reiterated in Office Specialty Manufacturing Company v. Fenton Metallic Manufacturing Company, 174 U. S. 492, at" }, { "docid": "22631271", "title": "", "text": "several results, each the complete product of one of the combined elements. Combined resultsaré not necessarily a novel result, nor are they an old result obtained in a new and improved manner. Merely bringing old devices into juxtaposition, and there allowing each to work out its own effect, without - the production of something novel, is not invention.” “The combination, to be patentable,” said Mr. Justice Hunt, in Reckendorfer v. Faber (92 U. S. 347, 357), “ must produce a different force or effect, or result, in the combined forces or processes, from that given by their separate parts. There must be a new result produced by their union : if not so, it is only an aggregation of separate elements.” In Nimmo’s apparatus, it is perfectly clear that all the elements of the, combination are old, and that each operates only in the old way. Beyond the separate and well-known results produced by them severally, no one of them contributes to the combined result any new feature ; no. one of them adds to the combination anything more than its separate independent . effect; no one of them gives any additional efficiency to the others, or changes in -any way the mode or result of its action. In a patentable combination of old elements, all the constituents must so enter into it.as that each qualifies every other; to draw an illustration from another branch of the law, they must be joint tenants of the domain of the invention; seised each of every part, per my et per tout, and not mere tenants in common, with separate interests and estates. It must form either a new machine of a distinct character and function, of produce a result due to the joint and co-operating action of all the elements, and which is not the mere adding together of separate contributions. Otherwise it is -only a mechanical juxtaposition, and not a vital union. In the case of this apparatus the mould was known, and a rib or former was known, and their use in combination was known. Salvetat described a rib, so" }, { "docid": "18335440", "title": "", "text": "not requisite to the patentability of a combination of old mechanical elements that each element should, in addition to performing its own function, modify the function performed by one or more of the other elements of the combination. It is sufficient if the combination of the old elements is new, and if the combined elements are capable of producing a novel and useful result or an old result in a more facile, economical, or efficient way. New York Scaffolding Co. v. Whitney (C. C. A.) 224 F. 452, and cases cited therein. To appellant’s argument that the patented device in suit is an unpatentable aggregation of old' elements, appellee replies that the argument would be sound if in the combination in controversy there was no co-operation between the various elements of the claims which produced a new and useful result. This is essentially true, and, unless the combination of elements in their eorelation produces a different force, or effect,. or result, from the sum of that which is produced by their separate parts, the device is unpatentable. Reckendorfer v. Faber, 92 U. S. 347, 23 L. Ed. 719; Pelton Water Wheel Co. v. Doble (C. C. A.) 190 F. 760. In each case cited by appellee in support of its position there was a new result accomplished by the combination, and something more than the sum of that produced by the separate parts. The individual elements of claim 9, which is more specific than claim 1, are: (1) A binder head; (2) a second hollow binder head; (3) flexible posts, having ends extensively connected with the hollow binder head; (4) a plurality of extension links adapted for connection with each other and with the other ends of the flexible posts to form continuations thereof; and (5) head members adapted for connection either with one of the extension sections or the ends of the posts to limit the movement of the posts with respect to the first head. As each of these elements was admittedly old in the art at the time of filing the application for the patent in suit," }, { "docid": "16027215", "title": "", "text": "case of Connecticut Paper Products v. New York Paper Co., 4 Cir., 127 F.2d 423, 427, decided April 13, 1942, where, quoting from Hailes v. Van Wormer, 20 Wall. 353, 368, 22 L.Ed. 241, it is said: “It must be conceded that a new combination, if it produces new and useful results, is patentable, though all the constituents of the combination were well known and in common use before the combination was made. But the results must be a product of the combination, and not a mere aggregate of several results each the complete product of one of the combined elements. Combined results are not necessarily a novel result, nor are they an old result obtained in a new and improved manner. Merely bringing old devices into juxtaposition, and there allowing each to work out its own effect without the production of something novel, is not invention. No one by bringing together several old devices without producing a new and useful result the joint product of the elements of the combination and something more than an aggregate of old results, can acquire a right to, prevent others from; using the same devices, either singly or-ín other combinations, or, even if a new and useful result is obtained, can prevent others from using some of the devices, omitting others, in combination.” See also Reckendorfer v. Faber, 92 U.S. 347, 357, 23 L.Ed. 719, where it is said: “The combination, to be patentable, must produce a different force or effect, or result in the combined forces or processes, from that given by their separate parts. There must be a new result produced by their union; if not so, it is only an aggregation of separate elements.” And see Pickering v. McCullough, 104 U.S. 310, 26 L.Ed. 749; Adams v. Bellaire Stamping Co., 141 U.S. 539, 12 S.Ct. 66, 35 L.Ed. 849; Powers-Kennedy Corp. v. Concrete Co., 282 U.S. 175, 186, 51 S.Ct. 95, 75 L.Ed. 278; Altoona Publix Theatres v. American Tri-Ergon Corp., 294 U.S. 477, 486, 55 S.Ct. 455, 79 L.Ed. 1005; Grinnell Washing Machine Co. v. E. E. Johnson Co.," }, { "docid": "6311502", "title": "", "text": "therewith, leading respectively to the tank and to the other nozzle member; (6) independently controllable reducing means 6 and 9, interposed in these branch air pipes, permitting variation of the pressure in either without affecting that in the other. Plaintiff asserts, as indeed it must, that if any one of these elements were removed, without its replacement by something equivalent in purpose and function, the usefulness of its entire structure would be destroyed, and makes a similar contention with regard to each of the other claims. The central thought running through all of them is the supplying of atomizing air and liquid to a stray nozzle, the latter by pressure applied to the liquid itself, and the former by connection with ah air compressor; both pressures being under independent and relatively variable control, so as to be maintained at constant, uniform values and ratios. This concept, the defendants maintain, because all of its elements are old, does not amount to invention. What is aggregation, and what is patentable combination, are old and certainly most vexed questions. Where the elements of a composite structure do not perform a joint function, as is the ease where a rubber eraser is united to one end of a lead pencil, we have a case of’ aggregation. Reckendorfer v. Faber, 92 U. S. 357, 23 L. Ed. 719. The elements of lead and rubber do not co-operate with each other, or mutually contribute to the desired result, and the omission or elimination of one of them in no way would impair the function or operation of the other. The often quoted rule of Pickering v. McCullough, 104 U. S. 310, 318 (26 L. Ed. 749), requires that a combination “form either a new machine of a distinct character and function, or produce a result due to the joint and co-operating action of all the elements, and which is not the mere adding together of separate contributions, ’ ’ before it will be held to constitute an invention. That these tests are met in the instant ease seems to me quite plain. As will be shown," }, { "docid": "22399055", "title": "", "text": "353, 368; Reckendorfer v. Faber, 92 U. S. 347, 356; Phillips v. Detroit, 111 U. S. 604; Brinkerhoff v. Aloe, 146 U. S. 515, 517; Palmer v. Corning, 156 U. S. 342, 345; Richards v. Chase Elevator Co., 158 U. S. 299.” Applying the rule thus authoritatively settled by this court, we think no invention is shown in assembling these old elements for the purposes declared. No new function is “evolved from this combination;” the new result, so far as one is achieved, is only that which arises from the well-known operation of each one of the elements. In the gearing specified every element is old. The operations of the wringer and the washing machine, although simultaneous, are independent one of the other. The control of the operation of the w-ringer is by an old and well-known method. From the cooperation of the ele merits, here brought together,, no new result, involving the exercise of the creative faculty which is invention, is achieved. Phillips may have, produced a more convenient and economical mechanism than others who preceded him, but superiority does not make an aggregation patentable. Specialty Manufacturing Co. v. Fenton Metallic Manufacturing Co., supra. The assemblage of the old elements, and their operation in the mannér indicated, may save time, and the mechanism may meet with a readier sale than other similar devices, but these things may result from mechanical skill and commercial enterprise, and do not necessarily involve invention. To borrow an illustration made at the argument, we think the Phillips aggregation of elements may be likened to the operation of a number of different machines in a factory by power applied from the same line shaft, each operation contributing its separate part to. the production of a given result. ' So in this instance we. think the combination accomplished by Phillips fails to show that exercise of invention, producing a novel and useful result from the cooperating action of the elements, which is essential to distinguish patentable combination from an aggregation of old elements so placed by mechanical skill as to do work more rapidly and economically." }, { "docid": "6993595", "title": "", "text": "the complete product of one of the combined elements. Combined results are not necessarily a novel result, nor are they an old result obtained in a new and improved manner. Merely bringing old devices into juxtapo sition, and there allowing each to work out its own effect without the production of something novel, is not invention. No one by bringing together several old devices without producing a new and useful result, the joint product of the elements of the combination and something more than an aggregate of old results, can acquire a right to prevent others from using the same devices, either singly lor in other combinations, or, even if a new and useful result is obtained, can prevent others from using some of the devices, omitting others, in combination.” Hailes v. Van Wormer, 20 Wall. 353, 368. “The combination to be patentable must produce a different force or effect, or result in the combined forces or processes, from that given by their separate parts. There must be a new result produced by their union ; if not so, it is only an aggregation of separate elements.” Reckendorfer v. Faber, 92 U. S. 347, 357. “ In a patentable combination of old elements, all the constituents must so enter into it as that each qualifies every other; to draw an illustration from another branch of the law, they must be joint tenants of. the domain of the invention, seized each of every part, per my et per tout, and not mere tenants in common, with separate interests and estates. It must form either a new machine of a distinct character and function, or produce a result due to the joint and co-operating action of all the elements, and which is not the mere adding together of separate contributions. Otherwise it is only a mechanical juxtaposition, and not a vital union.” Pickering v. McCullough, 104 U. S. 310, 318. “ It is true that such a fireplace heater, by reason of the fuel magazine, was a better heater' than before, just as the outstanding stove with its similar fuel magazine was" }, { "docid": "6311503", "title": "", "text": "questions. Where the elements of a composite structure do not perform a joint function, as is the ease where a rubber eraser is united to one end of a lead pencil, we have a case of’ aggregation. Reckendorfer v. Faber, 92 U. S. 357, 23 L. Ed. 719. The elements of lead and rubber do not co-operate with each other, or mutually contribute to the desired result, and the omission or elimination of one of them in no way would impair the function or operation of the other. The often quoted rule of Pickering v. McCullough, 104 U. S. 310, 318 (26 L. Ed. 749), requires that a combination “form either a new machine of a distinct character and function, or produce a result due to the joint and co-operating action of all the elements, and which is not the mere adding together of separate contributions, ’ ’ before it will be held to constitute an invention. That these tests are met in the instant ease seems to me quite plain. As will be shown, infra, a great improvement has been made in the paint-spraying art by the combination of elements described, and the result so obtained would be impaired, if not destroyed, by the omission of any one of them. However, it must be, and I think is admitted, that no single element of the Hopkins patent is new. Its only substantial difference from Fisher, as was repeatedly pointed out in the Hopkins file proceedings, is the provision of an automatic pressure regulator, 9, in the air line leading to the discharge nozzle, in addition to and supplementing the hand-controlled plunger valve 16a which already was to be found there. Automatic reducer valves of the type in question were old and well known in 1913, and were commonly used in gas, air, steam, oil, and other fluid lines. As a matter of fact, there was an automatic valve E-4 on the air line to Fisher’s tank. The question presented therefore must be phrased thus.” Did it amount to an exercise of the inventive faculty to conceive the idea (and" }, { "docid": "21343849", "title": "", "text": "supra, has said (page 711 of 106 F.): ‘Mere ehauges of the form of a device or of some of the mechanical elements of a combination secured by patent will not avoid infringement, where the principle or mode of operation is adopted, unless the form of the machine or of the elements changed is the distinguishing characteristic of the invention. (Columbus) Watch Co. v. Robbins, 64 F. 384, 396, 12 C. C. A. 174, 187, 22 U. S. App. 601, 634; New Departure Bell Co. v. Bevin Bros. Mfg. Co. (C. C.) 64 F. 859.’” Even if the Rath device was\" crude and imperfect in construction, it obviously was operable, and its crudeness and imperfections in form and structure would not render valid a subsequent patent for a device embodying the same generic principle. See McDonough v. Johnson-Wentworth Co., supra, quoting the following language from Hildreth v. Mastoras, 257 U. S. 27, 34, 42 S. Ct. 20, 66 L. Ed. 112: “The machine patented may be imperfect in its operation; hut if it embodies the generic principle, and works, that is, if it actually and mechanically performs, though only in a crude way, the important function by which it makes the substantial change claimed for it in the art, it is enough.” See, also, Mergenthaler Linotype Co. v. Press Pub. Co. (C. C.) 57 F. 502, 506. In Brinkerhoff v. Aloe, 146 U. S. 515, 516, 13 S. Ct. 221, 224, 36 L. Ed. 1068, it was said: “If several old devices are so put together as to produce even a better machino or instrument than was formerly in use, but each of the old devices does what it had formerly done in the instrument or machine from which it was borrowed, and in the old way, without uniting with other old devices to perform any joint function, it seems that the combination is not patentable. Hailes v. Van Wormer, supra [20 Wall. 353, 22 L. Ed. 241]; Reckendorfer v. Faber, 92 U. S. 347 [23 L. Ed. 719].” In Reckendorfer v. Faber, 92 U. S. 347, 356, 23 L." }, { "docid": "3738805", "title": "", "text": "number of patents, some relating to the pastry-making art, and some relating to other arts. In view of the above decisions confirming the Bruckman patent it would seem unnecessary again to go into each of these patents with the same detail 'that would be required of me had not this Bruckman patent been thus before the courts. However, I do not see any particular prior patent, now cited, which could be said to change the situation heretofore existing in the pastry-making art. Such patents as the Butzke German patent, No. 43,864, the Baker British patent, No. 20,043, and the Baker patent, No. 712-473, the Marchiony patent, No. 746,971, the Abrahams patent, No. 841,211, the Hama patent, No. 866,273, the Lanier and Driesbaeh, No. 922,004, and many \"other similar patents, fail to show a completely automatic machine. .Most of them require the handling of the cone at some point in the making. Some of them make no pretension to represent anything but a single element in the combination. The Bruckman patented machine is not, however, a mere aggregation or assembly of single elements, each doing only what it had formerly done. It is \"a new machine of a distinct character, and functions and produces a new result, due to the joint and co-operating action of all the elements.” Reckendorfer v. Faber, 92 U. S. 357, 23 L. Ed. 719; Pickering v. McCullough, 104 U. S. 318, 26 L. Ed. 749; Brinkerhoff v. Aloe, 146 U. S. 516, 13 S. Ct. 221, 36 L. Ed. 1068. Other patents, such as the Lanier patent, No. 1,257,497, involved the use of the solid mold, and do not disclose the important principle of extraction shown by the Bruekman patent and machine. Other patents, such as the Bohlig, No. 1,047,122, and the aforementioned Lanier patent, would also appear to be not a part of the prior art, and they were before the examiner, who found no interferences. Also, according to the expert Henry J. Savage, they are inoperative. .In addition to these patents, cited by defendant on the theory that they form a part of an" }, { "docid": "21531791", "title": "", "text": "854, 37 L.Ed. 710. And, likewise, it is not invention to apply an old material to a new or analogous use or subject. Walker on Patents, 6th Ed. vol. 1, p. 96; Pennsylvania R. Co. v. Locomotive E. S. Truck Co., 110 U.S. 490, 494, 4 S.Ct. 220, 28 L.Ed. 222; Ansonia Brass & C. Co. v. Electrical, Supply Co., 144 U.S. 11, 12 S.Ct. 601, 36 L.Ed. 327; Peters v. Active Mfg. Co., 129 U.S. 530, 9 S.Ct. 389, 32 L.Ed. 738. And invention does not reside in mere aggregation in which there is produced no different force, effect, or result by the combination of elements, but each performs in the aggregation some old or well-known function. Walker on Patents, 6th Ed. vol. 1, p. 84; Roberts, Patentability and Patent Interpretations, vol. 1, p. 47; Hailes v. Van Wormer, 20 Wall. 353, 368, 22 L.Ed. 241; Rubber-Tip Pencil Co. v. Howard, 20 Wall. 498, 22 L.Ed. 410; Reckendorfer v. Faber, 92 U.S. 347, 23 L.Ed. 719; Doughnut Mach. Corp. v. Joe-Lowe Corporation, 4 Cir., 67 F.2d 135, 137; Demco v. Doughnut Mach. Corp., 4 Cir., 62 F.2d 23, 26. The rule relating to the patentability of combinations is thus well stated in the oft-quoted passage from Hailes v. Van Wormer, supra: “It must be conceded that a new combination, if it produces new and useful results, is patentable, though all the constituents of the combination were well known and in common use before the combination was made. But the results must be a product of the combination, and not a mere aggregate of several results each the complete product of one of the combined elements. Combined results are not necessarily a novel result, nor are they an old result obtained in a new and improved manner. Merely bringing old devices into juxtaposition, and there allowing each to work out its own effect without the production of something novel, is not invention. No one by, bringing together several old devices without producing a new and useful result the joint product of the elements of the combination and something more than" }, { "docid": "15785246", "title": "", "text": "the requisite in this way: ‘In a patentable combination of old elements, all the constituents must so enter into it as that each qualifies every othex\\’ “There must be a eoaetion between them, and not a mere hitching up of separate contributions, each one of which continues independently to perform its customary function; otherwise, there is but a mechanical juxtaposition that is not patentable.” In Reckendorfer v. Faber, 92 U. S. 347, 23 L. Ed. 719, which is the more or less famous “pencil case” known to patent law, Mr. Justice Hunt, at page 357 of 92 U. S., summarizes his views in the following language: “The combination, to be patentable, must produce a different force or effect, or result in the combined forces or processes, from that given by their separate parts. There must be a new result produced by their union: if not so, it is only an aggregation of separate elements.” The same views are again reiterated in Office Specialty Manufacturing Company v. Fenton Metallic Manufacturing Company, 174 U. S. 492, at page 498, 19 S. Ct. 641, 643, 43 L. Ed. 1058, where Mr. Justice Brown expresses the opinion of the court as follows: “Putting the Hoffman patent in its most favorable light, it is very little, if anything, more than an aggregation of prior well-known devices, each constituent of which aggregation performs- its own appropriate function in the old way. Where a combination of old devices produces a new result, such combination is doubtless patentable; but where the combination is not only of old elements, but of old results, and no new function is evolved from such combination, it falls within the rulings of this court in Hailes v. Van Womer, 20 Wall. 353, 368 [22 L. Ed. 241] ; Reckendorfer v. Faber, 92 U. S. 347, 356 [23 L. Ed. 739]; Phillips v. Detroit, 111 U. S. 604, 4 S. Ct. 580 [28 L. Ed. 532]; Brinkerhoff v. Aloe, 146 U. S. 515, 517, 13 S. Ct. 221 [36 L. Ed. 1068]; Palmer v. Corning, 156 U. S. 342, 345, 15 S. Ct. 381" }, { "docid": "18335438", "title": "", "text": "“6. The flexible post binders manufactured by defendant as exemplified by plaintiff’s Exhibits 5, 5A, and 6 contain two binder heads both of which exert a clamping action on opposite sides of the body of loose leaf sheets placed therebetween. “7. Wilson-Jones Company is a privy of the defendant in the above-entitled suit and is bound by the decree to be entered herein. “8. Let judgment be entered accordingly. “F. A. Geiger, District Judge.” Incidental to the issues of validity there are contested matters relating to invention, anticipation, and commercial success; and under the issue of invention there are contested matters relating to aggregation, substitution, equivalency, and mechanical skill. Appellant cited many patents as prior art which collectively cover each individual element contained in appellee’s device, but no one patent contained all of them. In fact, appellee admits that each element in its patent is old in the art, but it insists that its structure is a new combination of old elements which produces a novel and useful result, or an old result in a more facile, economical, or efficient way. In determining whether or not the combination of elements in the present case is patentable we must be governed by two well-defined principles of law: (1) Where each element in the combination performs its function unaffected and unmodified by the action of the others, if there is no coaetion of these elements with one another, and if their combined result is the result of each element performing its function in its own way, unmodified by the others, each element contributing its share to the work, then such combination is a mere aggregation and is unpatentable. Richards v. Chase Elevator Co., 158 U. S. 299, 15 S. Ct. 831, 39 L. Ed. 991; Brinkerhoff v. Aloe, 146 U. S. 515, 13 S. Ct. 221, 36 L. Ed. 1068; Reckendorfer v. Faber, 92 U. S. 347, 23 L. Ed. 719; Everlasting Furniture Brace Co. v. Wittliff et al. (C. C. A.) 44 F.(2d) 129; Angier and Angier Corp. v. Nehring Electrical Works (C. C. A.) 45 F.(2d) 354. (2) It is" }, { "docid": "15785243", "title": "", "text": "“This invention relates to condensing apparatus for the liquidation of gases under high pressure and is more particularly designed for use in connection with the recovery of gasoline from natural gas. * * * ’.’ , Thus it will be seen that each step of plaintiff’s invention or process, and included in his patent, was either covered by patent previously or was theretofore well known to' the art. This controversy therefore resolves itself into the matter of determining whether the invention of plaintiff is one which represents a true combination for the purpose of acquiring a hitherto undiscovered and unac-quired result or whether it is, as defendant contends, merely an aggregation of elements producing no new and theretofore undiscovered result. The courts have.frequently spoken upon this subject, and a few selected paragraphs will suffice to express the thought as to the manner in which devices and processes of the general character here under investigation should be analyzed. In Hailes v. Van Wormer, 20 Wall. 353, at page 368, 22 L. Ed. 241, Justice Strong speaking for the court uses the following language: “Combined results are not necessarily a novel result, nor are they an old result obtained in a new and improved manner. Merely bringing old devices into juxtaposition, and there allowing each to work out its own effect without the production of something novel, is not invention.” In Richards v. Chase Elevator Company, 158 U. S. 299, the court, at page 302, 15 S. Ct. 831, 833, 39 L. Ed. 991, says: “It is not claimed that there is any novelty in any one of the elements of the above combination. They are all perfectly well known, and, if not known in the combination described, they are known in combinations so analogous that the- court is at liberty to judge of itself whether there be any invention in using them in the exact combination claimed. * * * Unless the combination accomplishes some new result, the mere multiplicity of elements does not make it patentable. So long as each element performs some old and well-known function, the result is" } ]

[ { "docid": "3267505", "title": "", "text": "among each class member’s complaints about dental care do not mean that the claims of the named plaintiffs are not typical. See Robert E. v. Lane, 530 F.Supp. 930, 942-43 (N.D.Ill.1981). As the Court has already indicated, plaintiffs claim systemic behavior and harm. The claims of the class representatives here are typical: each has been subjected to some or all of the general, institution-wide deprivations alleged on behalf of the class. 4. Adequacy of Representation. The representative parties must be prepared to fairly and adequately protect the interests of the class. This requirement is comprised of two elements: (1) “that the interests of the representative party ... coincide with those of the class; and [2] that the representative party and his attorney can be expected to prosecute the action vigorously.” Mersay v. First Republic Corp., 43 F.R.D. 465, 469 (S.D.N.Y.1968); see also Kuck v. Berkey Photo, Inc., 81 F.R.D. 736, 740 (S.D.N.Y.1979). Defendants apparently concede that this requirement has been met. The named plaintiffs do not have interests divergent from the rest of the prisoners at Bedford Hills. Moreover, they are represented by counsel experienced in prisoners’ rights litigation. See, e.g., Todaro, 565 F.2d 48; Detainees of the Brooklyn House of Detention for Men v. Malcolm, 520 F.2d 392 (2d Cir.1975); Rhem v. Malcolm, 507 F.2d 333 (2d Cir.1974); see also Frazier v. Ward, 426 F.Supp. 1354, 1356 (N.D.N.Y.1977); King v. Carey, 405 F.Supp. 41, 44 (W.D.N.Y.1975). If any doubt remained about the capability of plaintiffs’ counsel to adequately represent the putative class in this case, the quality of the work done in preparing this motion dispelled it. Accordingly, this requirement is satisfied. Plaintiffs thus have shown that all four prerequisites of Rule 23(a) are met in this case. 5. Rule 23(b) requirement. As discussed above, plaintiffs must also demonstrate that one of the requirements of Rule 23(b) is met. The plaintiffs argue that this action satisfies the tests of both subdivisions (b)(1) and (b)(2). Since I think this action is clearly maintainable as a class action under subdivision (b)(2), I will not discuss at length whether it would also" } ]

[ { "docid": "7129429", "title": "", "text": "scienter, and materiality are “paradigmatic common question[s]” in a securities fraud case, id. (quoting Moskowitz v. Lopp, 128 F.R.D. 624, 629 (E.D.Pa.1989)), and here they are typical to. the class members and proposed representatives alike. III. Adequacy of Representation In order for class certification to issue, the Plaintiffs also have the burden of demonstrating that they will fairly and adequately protect the interests of every putative claimant. This requirement asks whether the Plaintiffs are competent to undertake the case and whether they have interests that are antagonistic to other class members. See Eisen v. Carlisle & Jacquelin, 391 F.2d 555, 562 (2d Cir.1968). None of the parties seriously debates the first of these two considerations. The Plaintiffs are represented by counsel who have “participated in sophisticated securities class actions before and there is no allegation that they are not competent to handle this action.” Victor Technologies, 102 F.R.D. at 57. Even so, the second of these considerations is in dispute. Due process requires named plaintiffs and lead counsel to have undivided loyalty to absent class members, and the adequacy of representation requirement is meant to preclude class certification when adversity among subgroups or other conflicts of interest exist. See Broussard, 155 F.3d at 337-40. The Defendants contend that the Proposed Class includes a large number of members who lack standing to sue — an argument that implicitly questions whether the Plaintiffs, who allegedly have standing, can represent those who do not. The particular claim that the Defendants advance is that as many as one-third of the Proposed Class consists of “short-sellers” who, unlike traditional investors, never actually purchased or sold shares of CLC common stock and accordingly lack a legally-viable basis with which to pursue a cause of action under Rule lOb-5. As the Supreme Court has explained, standing to pursue a 10b-5 claim requires plaintiffs to have been “purchasers” or “sellers” of securities within the meaning of the ’34 Act. See Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 750-55, 95 S.Ct. 1917, 44 L.Ed.2d 539 (1975). Short-sellers arguably lack standing to avail themselves of the securities" }, { "docid": "12927398", "title": "", "text": "from the same course of events, and each class member makes similar legal arguments.” See also Robidoux v. Celani, 987 F.2d 931, 936-37 (2d Cir.1993). Plaintiff argues that the typicality requirement of Rule 23(a)(3) is satisfied because all of potential plaintiffs’ claims are based on the same legal theories arising out of the same course of Defendants’ conduct. (PL’s Mem. at 24.) Defendants argue that Plaintiffs claims are atypical of those of the purported class because he is faced with a unique defense: a statute of limitations that bars his FLSA claim, and thereby eliminates his pendent state-law claim. (Defs.’ Mem. Law at 20.) Rule 23(a)(3) is satisfied here because Plaintiff and the prospective class were subject to the same general employment scheme. Even if the class members’ facts are somewhat different than Plaintiffs, the claims are similar enough to meet the typicality element. And, as discussed, because Plaintiffs claim is not barred by the statute of limitations, this defense has no bearing on the typicality analysis. d. Adequacy Rule 23(a)(4) requires that the representative party “fairly and adequately protect the interests of the class.” This adequacy requirement demands that plaintiffs counsel be “qualified, experienced, and generally able” to conduct the litigation, and that the interests of the class members not be “antagonistic.” In re Drexel Burnham Lambert Group, 960 F.2d 285, 291 (quoting Eisen v. Carlisle & Jacquelin, 391 F.2d 555, 562 (2d Cir.1968)). Plaintiff argues that the adequacy requirements are satisfied here because Plaintiffs attorneys have extensive litigation experience, including other class action matters, and Plaintiff has established that his claims raise questions of law common and typical to the class. (PL’s Mem. Law at 25-27; PL’s Reply Mem. Law at 9.) Defendants argue that Plaintiff has not so far acted in a way that furthers the potential class members. (Defs.’ Mem. Law at 22.) Defendants point out that Plaintiff has not contacted potential plaintiffs to have them opt in to the collective action, showing he is unable to properly represent class members’ interests. (Id.) Defendants also raise questions about Plaintiffs counsel’s qualifications and motives. (Id. at 23.)" }, { "docid": "16448466", "title": "", "text": "day of January 22, 1993, the stock peaked at over $2.00/share with a volume of over 5.5 million. During the week of alleged manipulation, Dietrich also asserts that through a number of inter-Defendant trades, the Defendants were able to increase the report ed trading volume of the stock. According to Dietrich, this was due to wash transactions among the Defendants. Specifically, Dietrich asserts that on January 18, 1993, Saturn sold approximately 470,000 shares of stock through Green-Cohn and two Bear Stearns accounts, purportedly beneficially owned by principals of Green-Cohn, purchased approximately 447,000 shares. Additionally, at the same time SB & H was selling in excess of one million shares, CS First Boston was acquiring for ultimate sale in excess of one million shares. Dietrich represents that the Regulation S and Market Manipulation schemes caused him injury, in that at the time Dietrich bought his shares of Scorpion common stock the true value was zero. Currently, the stock has no market and is valueless. Dietrich has not sold his interest in Scorpion. Discussion I. Dietrich’s Motion for Appointment of Additional Class Representatives Is Denied By means of a motion to add class representatives, Dietrich seeks to designate seven additional proposed representatives in this litigation. The purpose, according to Dietrich, of the proposed intervention by these additional class members is the preservation and protection of the claims under Section 12(1) of the 1933 Act. This motion is premature and without procedural foundation because no class has been certified. Dietrich wishes to add additional representatives to a class that does not exist. Indeed, Dietrich has not cited any controlling, or convincing, authority for the appointment of class representatives prior to certification of the alleged class that they would represent. In Trief v. Dun & Bradstreet Corp., 144 F.R.D. 193 (S.D.N.Y.1992), cited by Dietrich, the court did allow an additional class representative to intervene, but only in connection with the certification of a class, which was conceded by the defendants in that case to be appropriate and granted by the court. See id. at 197-203. Dietrich seeks to bolster the Section 12 claims in" }, { "docid": "6016360", "title": "", "text": "or the relief sought. Accordingly, differences in the amount of damage, the size or manner of [stock] purchase, the nature of the purchaser, and even the specific document influencing the purchase will not render a claim atypical in most securities cases.” 5 Newberg on Class Actions, § 8816, at 850 (1977). Plaintiff’s claims are typical of the putative class insofar as the relief sought arises from the same misrepresentations or omissions. As the typicality requirement should be loosely construed, Newberg, supra, it is no barrier that plaintiff may have purchased ALTOS stock pursuant to the initial offering yet he seeks to represent purchasers in the aftermarket. See Wolfson v. Solomon, 54 F.R.D. 584, 588 (S.D.N.Y.1972). Defendants objections to plaintiff’s claims as “atypical” are better dealt with under the rubric of predominance of individual versus class issues, discussed infra. 5 Newberg at 850. I therefore conclude that plaintiff has met the typicality requirement of Rule 23(a)(3). 4. Adequacy. Two criteria exist for determining the adequacy of representation of a class: 1) the named representative must appear to be able to prosecute the action vigorously through qualified counsel, and 2) the representative must not have antagonistic or conflicting interests with the unnamed class members. Lerwill v. Inflight Motion Pictures, Inc., 582 F.2d 507, 512 (9th Cir.1978). See also Bogosian v. Gulf Oil Corp., 561 F.2d 434, 449 (3d Cir.1977). The emphasis has been and should be placed on whether the representative’s counsel is capable. Eisen v. Carlisle & Jacquelin, 391 F.2d 555, 562 (2d Cir.1968), class upheld on remand, 52 F.R.D. 253 (S.D.N.Y.1971), rev’d 479 F.2d 1005 (2d Cir.1973), vacated 417 U.S. 156, 94 S.Ct. 2140, 40 L.Ed.2d 732 (1974) (Eisen II). Mr. Weinberger’s counsel are competent to handle this action and have demonstrated their abilities to do so in both their written and oral presentation. Defendants disagree and have gone to great lengths to besmirch Mr. Weinberger’s and his counsel’s ability to adequately represent the putative class. Defendants contend, inter alia, that Weinberger is too old, too sophisticated, failed to independently investigate the facts prior to filing suit, has a habit" }, { "docid": "23045060", "title": "", "text": "914 (9th Cir. 1964). The district court’s reasons for restricting the class to custodians goes to the very merits of the action. As noted earlier, such an inquiry into the merits of the case is not proper at the class certification stage. Moreover, restricting the class in the manner proposed would not be in accordance with the established policy of liberally applying Rule 23(a) requirements in Title VII cases and would contravene the purpose of Title VII in eliminating class-based employment discrimination. D. Under Rule 23(a)(4), the named representative must “fairly and adequately protect the interests of the class.” This requires that the named representative’s attorney be qualified, experienced, and generally capable to conduct the litigation, and that the named representative’s interests not be antagonistic to the interests of the class. Wetzel v. Liberty Mutual Insurance Co., 508 F.2d 239, 247 (3d Cir.) (citing Eisen v. Carlisle & Jacquelin, 391 F.2d 555, 562 (2d Cir. 1968)), cert. denied, 421 U.S. 1011, 95 S.Ct. 2415, 44 L.Ed.2d 679 (1975). Although Jordan’s attorney, Mr. Walter Cochran-Bond, has apparently been involved in a number of federal employment discrimination cases, the district court questioned his adequacy because he claimed only three years experience and because his papers before the court indicated some unfamiliarity with federal practice. Although Mr. Bond claimed to have associated counsel from the Center for Law in the Public Interest, the district court concluded the Center was not involved in the case since no attorney from the Center had signed any papers or made any recent appearance before the court. With respect to the interests of the named representative, the court found that Jordan’s interests were antagonistic to those of the remaining class members because he may be required to defend charges at trial that he was denied a job due to his prior work record. Based upon the papers filed in this court; including appellant’s briefs, we are satisfied that Jordan’s attorneys are qualified, experienced, and generally capable of conducting this class action litigation. While Mr. A. Thomas Hunt, counsel for the Center for Law in the Public Interest may" }, { "docid": "8074019", "title": "", "text": "the interests of the class,” is satisfied here as well. The standard for adequate representation has two parts: first, “class counsel must be ‘qualified, experienced and generally able’ to conduct the litigation”; and second, “the class members must not have interests that are ‘antagonistic’ to one another.” Drexel, 960 F.2d at 291 (citing Eisen v. Carlisle & Jacquelin, 391 F.2d 555, 562 (2d Cir.1968)). The Jacobsons focus their attack on the second prong of this test, contending, just as they did in their prior motion, that inherent conflicts among investors in the different entities prevent the current named plaintiffs and their attorneys from adequately representing Pegasus I and II investors. In support of this objection, they assert primarily that the Pegasus plaintiffs’ recovery under the Settlement does not adequately reflect the strength of their claims on the merits. ■ This position is no more persuasive now than it was one year ago. Potential conflict between class members is often a danger in large class actions, but those conflicts are best resolved through “the normal pull and tug” of factions within the class itself. (Tr. 1/19/96 at 29.) The Court’s role in this process is not to substitute its own judgment for that of Class Counsel, but rather to insure that the interests of all class members are fairly and impartially represented throughout the negotiation of the settlement and alloca- tioii plan. In this action, the assignment of separate law firms and independent experts to represent each Partnership group was a reasonable and adequate means of protecting the interests of all Class Members; the Ja-cobsons’ contention that their recovery-should be greater is an insufficient basis on which to conclude that those safeguards failed or were corrupted in any way. Accordingly, the Rule 23(a)(4) requirement of adequate representation is satisfied. Because the record establishes that all necessary elements of Rule 23 have been met, the fairness of the class certification is reaffirmed and the Jacobsons’ renewed request for decertification of the class or the creation of a subclass is denied. B. The Notice of Settlement is Adequate Fed.R.Civ.P. 23(e) provides that “notice" }, { "docid": "13177751", "title": "", "text": "both that (i) the proposed class representatives have no conflicts of interest with other members of the class; and (ii) that the representatives’ class counsel be well qualified, experienced and capable of handling the litigation in question. In re Visa Check/MasterMoney Antitrust Litig., 280 F.3d at 142. However, the Advisory Committee Notes to the 2003 Amendments to Federal Rule 23(g), effective December 1, 2003, state that “Rule 23(a)(4) will continue to call for scrutiny of the proposed class representative, while [Rule 23(g) ] will guide the court in assessing proposed class counsel as part of the certification decision.” Fed.R.Civ.P. 23(g). Thus, because Rule 23(a)(4) no longer governs the selection of class counsel, the Court will only address the adequacy of the proposed class representatives in this section. Although “a court must be wary of a defendant’s efforts to defeat representation of a class [on] grounds of inadequacy when the effect may be to eliminate any class representation,” Kline v. Wolf, 702 F.2d 400, 402-03 (2d Cir.1983), courts should “carefully scrutinize the adequacy of representation in all class actions.” Eisen v. Carlisle & Jacquelin, 391 F.2d 555, 562 (2d Cir.1968). That scrutiny is generally directed to three areas. First, courts should consider whether the proposed plaintiffs are credible. Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 549, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949) (class representative is a fiduciary, and interests of the class are “dependent upon his diligence, wisdom and integrity”); Kaplan v. Pomer- antz, 132 F.R.D. 504, 510 (N.D.Ill.1990) (“[a] plaintiff with credibility problems ... does have interests antagonistic to the class.”) (internal quotation marks omitted). Second, courts should consider whether the proposed plaintiffs have adequate knowledge of the case and are actively involved. Baffa v. Donaldson, Lufkin & Jenrette Securities Corporation, 222 F.3d 52, 61 (2d Cir.2000) (recognizing knowledge as a factor to consider in determining class certification but noting that it is properly considered in connection with the “typicality” requirement of Rule 23(a)(3)). Finally, they should consider whether the interests of the proposed plaintiffs are in conflict with those of the rest of the class. Epifano" }, { "docid": "8074018", "title": "", "text": "the statements made and the sales materials used; whether PaineWebber misrepresented the suitability of investments for individual clients or failed to take sufficient steps to insure such suitability; whether a conspiracy existed among two or more Defendants; whether a RICO “pattern” existed; whether Defendants’ actions constituted fraud, negligence, breach of fiduciary duty or violation of the federal securities laws; and whether the Class Members were injured by Defendants’ actions. (See Certification Order at HE, § 5.) These questions of law and fact overwhelmingly predominate over any issues that might affect individual Class Members only. Rule 23(a)(3), which requires that “the claims or defenses of the representative parties [be] typical of the claims or defenses of the class,” is also satisfied here. The named class representatives are investors in 20 of the 70 Partnerships, including Pegasus II. (See Order dated Feb. 26,1996 at 1-2; Com.plaint at 1Í1Í 27 — 15.) Their claims are materially indistinguishable from those of other ' Class Members. Finally, Rule 23(a)(4), which requires that “the representative parties will fairly and adequately protect the interests of the class,” is satisfied here as well. The standard for adequate representation has two parts: first, “class counsel must be ‘qualified, experienced and generally able’ to conduct the litigation”; and second, “the class members must not have interests that are ‘antagonistic’ to one another.” Drexel, 960 F.2d at 291 (citing Eisen v. Carlisle & Jacquelin, 391 F.2d 555, 562 (2d Cir.1968)). The Jacobsons focus their attack on the second prong of this test, contending, just as they did in their prior motion, that inherent conflicts among investors in the different entities prevent the current named plaintiffs and their attorneys from adequately representing Pegasus I and II investors. In support of this objection, they assert primarily that the Pegasus plaintiffs’ recovery under the Settlement does not adequately reflect the strength of their claims on the merits. ■ This position is no more persuasive now than it was one year ago. Potential conflict between class members is often a danger in large class actions, but those conflicts are best resolved through “the normal pull" }, { "docid": "4919844", "title": "", "text": "the adequacy of representation requirement, although the latter requirement also raises concerns about the competency of class counsel and conflicts of interest.” 457 U.S. at 157 n. 13, 102 S.Ct. at 2370 n. 13. The requirement is twofold. First, the representative’s “ ‘attorney [must be] qualified, experienced, and generally able to conduct the proposed litigation,’ and the litigants must not be involved in a collusive suit.” Burka v. New York City Transit Authority, 110 F.R.D. 595, 601 (S.D.N.Y.1986), quoting Eisen v. Carlisle & Jacquelin, supra, at 562. Here, there is nothing to suggest the inadequacy of plaintiffs counsel’s capacity to litigate the issues with respect to a New York class. Defendant does not dispute plaintiffs’ counsel’s experience in civil rights actions of this nature. Nor is there any reason to suspect a collusive suit. Second, Rule 23(a)(4) requires that the representative parties fairly and adequately protect the interests of the class. Defendant asserts the individual plaintiffs’ claims cannot be typical or present common questions of law or fact with those of the putative class members because their interests conflict. The Bank argues that personnel at different employment levels may have antagonistic interests in issues such as promotions and transfers. See Gilchrist v. Bolger, 89 F.R.D. 402, 408 (D.Ga. 1981). However, the case law makes clear that superficial conflicts of this sort will not preclude class certification where common discriminatory employment practices apply to different positions. See McKenzie v. Sawyer, supra, at 74. The named plaintiffs need not possess the same qualifications or have the same employment status as the purported class members. See Carpenter v. Stephen F. Austin State University, 706 F.2d 608 (5th Cir.1983). No showing has been made that class member transfers or promotions can only be made at the expense of another class member or that, in all events, money damages is not an adequate alternative remedy. Plaintiffs’ counsel, however, has not demonstrated that it would be able adequately to represent members of a proposed class from the Bank’s United States offices outside New York. Class discovery conducted beyond the New York branch has been very limited." }, { "docid": "6016361", "title": "", "text": "to be able to prosecute the action vigorously through qualified counsel, and 2) the representative must not have antagonistic or conflicting interests with the unnamed class members. Lerwill v. Inflight Motion Pictures, Inc., 582 F.2d 507, 512 (9th Cir.1978). See also Bogosian v. Gulf Oil Corp., 561 F.2d 434, 449 (3d Cir.1977). The emphasis has been and should be placed on whether the representative’s counsel is capable. Eisen v. Carlisle & Jacquelin, 391 F.2d 555, 562 (2d Cir.1968), class upheld on remand, 52 F.R.D. 253 (S.D.N.Y.1971), rev’d 479 F.2d 1005 (2d Cir.1973), vacated 417 U.S. 156, 94 S.Ct. 2140, 40 L.Ed.2d 732 (1974) (Eisen II). Mr. Weinberger’s counsel are competent to handle this action and have demonstrated their abilities to do so in both their written and oral presentation. Defendants disagree and have gone to great lengths to besmirch Mr. Weinberger’s and his counsel’s ability to adequately represent the putative class. Defendants contend, inter alia, that Weinberger is too old, too sophisticated, failed to independently investigate the facts prior to filing suit, has a habit of filing frivolous suits, has not cooperated in discovery and that Mr. Weinberger is engaged in too many other actions to devote adequate time to this action. Defendants also contend that Mr. Weinberger’s failure to rely upon the offering materials as opposed to the class whom he seeks to represent and his unique due diligence duties resulting from his level of sophistication are at odds with class interests. The latter two contentions are best covered under the issue of predominance of common over individual issues because they do not appear to compromise the positions of the putative class. I find that none of the remaining contentions bears upon the question of whether this suit will be adequately and vigorously prosecuted or whether a disabling conflict exists. Personal qualifications or motives of the proposed class representative are not determinative of the adequacy of the representative. Dorfman v. First Boston Corp., 62 F.R.D. 466, 473 (E.D.Pa.1973). A complex securities action cannot be founded upon an investigation of a litigant. See, e.g., Wolgin v. Magic Marker Corp., 82" }, { "docid": "12927399", "title": "", "text": "party “fairly and adequately protect the interests of the class.” This adequacy requirement demands that plaintiffs counsel be “qualified, experienced, and generally able” to conduct the litigation, and that the interests of the class members not be “antagonistic.” In re Drexel Burnham Lambert Group, 960 F.2d 285, 291 (quoting Eisen v. Carlisle & Jacquelin, 391 F.2d 555, 562 (2d Cir.1968)). Plaintiff argues that the adequacy requirements are satisfied here because Plaintiffs attorneys have extensive litigation experience, including other class action matters, and Plaintiff has established that his claims raise questions of law common and typical to the class. (PL’s Mem. Law at 25-27; PL’s Reply Mem. Law at 9.) Defendants argue that Plaintiff has not so far acted in a way that furthers the potential class members. (Defs.’ Mem. Law at 22.) Defendants point out that Plaintiff has not contacted potential plaintiffs to have them opt in to the collective action, showing he is unable to properly represent class members’ interests. (Id.) Defendants also raise questions about Plaintiffs counsel’s qualifications and motives. (Id. at 23.) The Court finds that based on the past experiences and current conduct of Plaintiffs counsel, that they are entirely capable of conducting the instant litigation. The Court also finds that based on the above findings of typicality and commonality, there is nothing antagonistic about Plaintiff and the proposed class. Accordingly, the adequacy element is met. 2. Rule 23(b) Requirements Having satisfied the requirements of Rule 23(a), Plaintiff must satisfy one of the three prongs of Rule 23(b). Plaintiff argues he and the proposed class satisfy all three requirements, and therefore certification is appropriate. (PL’s Mem. Law at 27-29.) Defendants argue the proposed class fails under all three prongs of Rule 23(b). (Defs’. Mem. Law at 24-27.) a. Rule 23(b)(1) Rule 23(b)(1)(A) states that a class action may be maintainable if “the prosecution of separate actions by or against individual members of the class would create a risk of inconsistent or varying adjudications with respect to individual members of the class which would establish incompatible standards of conduct for the party opposing the class.” Plaintiff argues" }, { "docid": "2196387", "title": "", "text": "conservatively in securities they consider undervalued by the market, and on occasion even to communicate directly with the company in which they are investing to verify or better evaluate its public disclosures. Making careful investment decisions does not disqualify an investor from representing a class of defrauded investors or from relying on the presumption of reliance that is ordinarily available, as discussed in some detail below, in securities fraud actions. See, e.g., In re Independent Energy Holdings PLC Sec. Litig., 210 F.R.D. 476, 481-82 (S.D.N.Y.2002) (test is whether named plaintiff received non-public information from a corporate officer); Cromer, 205 F.R.D. at 132 (use of investment advisors not disqualifying); Dietrich v. Bauer, 192 F.R.D. 119, 125 (S.D.N.Y.2000) (direct receipt of public information from corporate defendant not disqualifying); Cross v. Dickstein Partners, 172 F.R.D. 108, 114 (S.D.N.Y.1997) (reliance on brokers not disqualifying). (4) Adequacy of Representation To determine whether a named plaintiff will be an adequate class representative, courts inquire whether: “1) plaintiffs interests are antagonistic to the interest of other members of the class and 2) plaintiffs attorneys are qualified, experienced and able to conduct the litigation.” Baffa, 222 F.3d at 60; see also Falcon, 457 U.S. at 157 n. 13, 102 S.Ct. 2364; In re Visa Check/MasterMoney, 280 F.3d at 142; In re Drexel Burnham, 960 F.2d at 291. A class representative must “possess the same interest and suffer the same injury as the class members.” Amchem Prods., 521 U.S. at 625-26, 117 S.Ct. 2231 (citation omitted). Here, both Baffa criteria are satisfied. The named plaintiffs’ interests are directly aligned with those of the absent class members: they are purchasers of WorldCom equity and debt securities who suffered significant losses as a result of the investments. Their attorneys are all qualified, experienced and able to conduct complex securities litigation. Co-Lead Counsel in particular have already ably and zealously represented the interests of the Class as this complex litigation continues apace. The defendants do not directly contest the proposed class representatives’ qualifications under either of the two criteria identified by the Second Circuit as key to the adequacy determination. See Baffa," }, { "docid": "14916612", "title": "", "text": "re Joint Eastern & Southern Dist. Asbestos Litig., 78 F.3d 764, 778 (2d Cir.1996) (citing In re Drexel Burnham Lambert Group, Inc., 960 F.2d 285, 291 (2d Cir.1992)); Eisen v. Carlisle and Jacquelin, 391 F.2d 555, 562 (2d Cir.1968). Other factors that have been considered in determining the adequacy of a proposed representative include the putative plaintiffs’ “knowledge of the case” and “credibility.” In re Joint E. and S. Dist. Asbestos Litig., 78 F.3d 764, 778 (2d Cir.1996). i. Class counsel Class counsel must be “qualified, experienced, and generally able to conduct the litigation.” See id. (citing In re Drexel Burnham Lambert Group, Inc., 960 F.2d at 291; Eisen, 391 F.2d at 562). When courts review the adequacy of counsel under Rule 23(a)(4), they generally inquire whether the counsel is willing and able to vigorously prosecute the action. Rule 23(a)(4) is satisfied where the class attorneys are experienced in the field or have demonstrated professional competence in other ways, such as by the quality of the briefs and the arguments during the early stages of the case. See, e.g., Klein v. A.G. Becker Paribas Inc., 109 F.R.D. 646 (S.D.N.Y.1986); Bacon v. Toia, 437 F.Supp. 1371 (S.D.N.Y.1977). See generally 7A Charles A. Wright & Arthur R. Miller, Federal Practice & Procedure § 1769.1 (3d ed.2005). Counsel may be deemed inadequate if they have little experience, have done inadequate work up until the decision on certification, or demonstrate a conflict of interest with some members of the class. See, e.g., Carson v. Giant Food, Inc., 187 F.Supp.2d 462 (D.C.Md.2002); Dietrich v. Bauer, 192 F.R.D. 119 (S.D.N.Y.2000); In re Joint E. & So. Dist. Asbestos Litig., 133 F.R.D. 425 (E.D.N.Y.1990). See also Wright & Miller § 1769.1 (“It is important to note that mere allegations that the class attorney is inexperienced or incompetent will not suffice to demonstrate inadequacy if other evidence suggests that the attorney is competent” and “the fact that the counsel is engaged in multiple parallel or overlapping class suits does not, standing alone, establish a conflict.”). Congress expressly acknowledged the importance of adequate class counsel in the 2003 amendments" }, { "docid": "12508612", "title": "", "text": "that similar relief is requested, also demonstrate satisfaction of the second prerequisite. And for these same reasons that the second prerequisite is satisfied, the third prerequisite, that the claims or defenses of the representative parties be typical of the claims or defenses of the alleged class, is satisfied. It should be noted, of course, that irrespective of this determination as to the second and third prerequisites, it is clear under Rule 23 that a remaining question is whether under 23(b) (3) the questions of law or fact common to the members of the class predominate over any questions affecting only individual members. Our conclusion as to the fourth prerequisite, that is, whether the representative parties will fairly and adequately represent and protect the interests of the class, will to some extent necessarily depend upon whether this action can be deemed to fall within subsections 23(b) (2) or 23(b) (3) of the Rule, since defendants contend that the claim for relief presented by any particular plaintiff cannot be regarded as substantially related or similar to the claims of other purchasers. But apart from this fundamental consideration, no other question has been raised as to the adequacy of the present representation. The named plaintiffs themselves have a significant economic interest typical of that of the entire asserted class. See, Richland v. Cheatham, 272 F.Supp. 148, 153 (S.D.N.Y.1967). The named plaintiffs are represented by competent and experienced counsel, and there is no likelihood of a collusive suit or that named plaintiffs have interests antagonistic to the interests of other purchasers they purport to represent. See, Hansberry v. Lee, 311 U.S. 32, 61 S.Ct. 115, 85 L.Ed. 22 (1940); Eisen v. Carlisle & Jacquelin, 391 F.2d 555, 562 (2nd Cir. 1968). The fundamental question of representativeness which runs throughout Rule 23 is the basis upon which defendants contend that this litigation is not properly a class action. Defendants’ principal argument is that claims of overreaching, fraud and abuse of confidence, by their nature must relate exclusively to an individual contract between an individual buyer and seller. They urge that the claims in this case" }, { "docid": "16448468", "title": "", "text": "his Amended Complaint by adding additional class representatives in order to withstand the current round of motions to dismiss, and then proceed — for the first time — to the class certification stage. However, Dietrich cannot salvage his Section 12 claims by contending that the proposed new representatives have standing to prosecute when they are not named as plaintiffs and when, as discussed below, he himself lacks standing to prosecute those claims. It is well established that a named plaintiff must have standing in order to sustain a claim, and as this Court has stated, “a plaintiff may not use the procedural device of a class action to bootstrap himself into standing he lacks under the express terms of the substantive law.” German v. Federal Home Loan Mortgage Corp., 885 F.Supp. 537, 548 (S.D.N.Y.1995). Dietrich’s effort to add new class representatives in an effort to resuscitate his Amended Complaint is procedurally inappropriate, and his motion is therefore denied. II. Witz’s Motion to Vacate the Order Extending Time of Service Is Denied Witz moves for reconsideration of an order dated July 31, 1997 (the “Order”), extending Dietrich’s time to serve Witz with the Amended Complaint, and for dismissal of the action against him because Dietrich did not serve him with the complaint within 120 days of the institution of the action as required by Rule 4(m) of the Federal Rules of Civil Procedure. According to Witz, he has been prejudiced by the late service of the complaint because Terry Marsh (“Marsh”), President and Chief Executive Officer of Scorpion, was indicted approximately a year after the commencement of this action and has advised that because of the pending indictment against him, he would decline now to testify in this action on Fifth Amendment grounds. Witz’s reconsideration motion is governed by Local Rule 6.3, which provides, in pertinent part: “There shall be served with the notice of motion a memorandum setting forth concisely the matters or controlling decisions which counsel believes the court has overlooked.” Thus, to be entitled to reconsideration, the movant must demonstrate that the Court overlooked controlling decisions or factual" }, { "docid": "19015536", "title": "", "text": "because of other Rule 23 requirements. Typicality and Adequacy of Representation The claims of the class representative must be typical of those of the putative class. Rule 23(a)(3). This requires the class representative to be a member of the proposed class, have interests coextensive with and not antagonistic to the interests of the class, and have suffered the same injury as the class members. See, e.g., General Telephone Co. v. Falcon, 457 U.S. 147, 156, 102 S.Ct. 2364, 2369-70, 72 L.Ed.2d 740 (1982); Eisen v. Carlisle, 391 F.2d at 562-63 (discussing coextensive interests); Edgington v. R.G. Dickinson & Co., 139 F.R.D. 183, 189 (D.Kan.1991). Claims do not have to be identical to be typical. Adamson v. Bowen, 855 F.2d 668, 676 (10th Cir.1988); Olenhouse v. Commodity Credit Corp., 136 F.R.D. 672, 679 (D.Kan.1991). A representative’s claims may differ factually and still be typical if they arise from the same events or course of conduct and share the. same remedial theories. Adamson, 855 F.2d at 676. The typicality requirement dovetails with the Rule 23(a)(4) adequacy of representation requirement. See Penn v. San Juan Hosp., Inc., 528 F.2d 1181, 1189 (10th Cir.1975). Atypical claims potentially create antagonistic interests, which will presumably affect Commander’s ability to adequately represent the class. Under Rule 28(a)(4), Commander must establish that it can “fairly and adequately protect the interests of the class.” Adequacy of representation is measured by two factors: (1) whether class counsel are qualified, experienced, and generally able to conduct the proposed litigation; and (2) whether the plaintiff has interests antagonistic to those of the class. Smith v. MCI, 124 F.R.D. at 676. We must give particular concern to the adequacy of representation because, unless a class member disassociates from the class (primarily, by opting out of the class), a judgment conclusively determines the rights of absent class members. See Eisen, 391 F.2d at 562-63. Defendants contend that Commander’s claims are not typical of the class claims because: (1) Commander is subject to unique defenses; (2) Commander, through its President Sidney Lassen, is the only plane owner to have demanded that its King Air be" }, { "docid": "962503", "title": "", "text": "but the warrant holders would not. However well-founded the argument, it relates to a difference in damages between the two groups of the proposed class and does not affect the proper class formation. Eisen v. Carlisle & Jacquelin, 391 F.2d 555 (2d Cir. 1968); Handswerger v. Ginsburg, supra; Kronenberg v. Hotel Governor Clinton, Inc., 41 F.R.D. 42 (S.D.N.Y.1966). The Court is not persuaded at this juncture that the claims or defenses of the plaintiffs Shaver and Kinney are not typical of the claims or defenses of the class. There is the possibility that as the litigation of this case proceeds, another result would be desirable. In that event, the Court will not hesitate to alter or amend the class action order to provide a more appropriate course for the litigation of the case. See Rule 23(c), F.R.Civ.P. C. Adequacy of Representation, 23(a)(4). The assurances of adequate representation under Rule 23(a)(4) is a command that the trial court be satisfied that the representatives of the class will pursue the claims of the class with “forthrightness and vigor.” Mersay v. First Republic Corp., 43 F.R.D. 465, 470 (S.D.N.Y.1968). The necessity for demanding adequate representation is obvious since “[t]he interests of the affected persons must be carefully scrutinized to assure due process of law for the absent members.” Carroll v. American Federation of Musicians, 372 F.2d 155, 162 (2d Cir. 1967). At the outset it should be stated that plaintiffs’ counsel clearly possess the requisite competence, experience, and diligence to adequately protect the interests of the class. Eisen v. Carlisle & Jacquelin, 391 F.2d 555, 562 (2d Cir. 1968). Although the defendants do not suggest any impropriety in bringing this suit, they contend that the plaintiff David M. Clark cannot adequately represent the class because of his multiple roles as putative class representative, estate executor, and lead counsel for the plaintiffs. Mr. Clark also has a personal interest in the action since he is a residuary beneficiary of the estate of Nettie Brogdon. 1. “The Estate Interest” Due to distributions from the estate and the payment of inheritance taxes, the value of the" }, { "docid": "23219559", "title": "", "text": "of terms used to describe Class Four Claims). In addition, the representative cases embody a cross-section of the claims filed against the Manville Trust nationwide. Their cases arise out of the same underlying course of conduct and are based on the same legal theories as those of the class generally. The particular manifestation of disease may differ between the representatives and the members of the class according to the extent of exposure, the effects of the asbestos disease process and the nature of the disease contracted by the individual. Nevertheless, the liability claims of the representatives sufficiently typify those of the class to satisfy Rule 23(a)(3). The class members and their representatives possess an identity of interest and appear to lack any critical inimical interests for purposes of Rule 23 certification. 4. Adequacy of Representation The final prerequisite for maintaining a class action is that class representatives be capable of fairly and adequately protecting the interests of the class. This requirement has two components. First, the named plaintiffs can not have “ ‘interests antagonistic to those of the remainder of the class....’” County of Suffolk v. Long Island Lighting Co., 710 F.Supp. 1407, 1413 (E.D.N.Y.1989), aff'd, 907 F.2d 1295 (2d Cir.1990) (quoting Eisen v. Carlisle & Jacquelin, 391 F.2d 555, 562 (2d Cir.1968), vacated on other grounds, 417 U.S. 156, 94 S.Ct. 2140, 40 L.Ed.2d 732 (1974)). Second, the attorney for the plaintiffs must be “qualified, experienced, and generally able to conduct the proposed litigation.” Id.; see also 1 H. Newberg, Newberg on Class Actions, § 3.22 (2d ed. 1985). Satisfaction of these requirements ensures that the claims of class members will be vigorously prosecuted through their representatives. See In re First Commodity Corp. Customer Accounts Litig., 119 F.R.D. 301, 310 (D.Mass.1987) (“The adequacy of representation goes directly to the integrity of the process by which the proposed settlement was developed.”). The codefendants contend that representation of the class has been inadequate. They maintain that the Trust beneficiaries consist of two major groups — asbestos health claimants and codefendant manufacturers and distributors — who have sharply antagonistic interests. Rule 23(a)(4)" }, { "docid": "9803195", "title": "", "text": "letters, the class action form would be appropriate because the class members might be able to recover more damages. Since defendants sent out so many allegedly unlawful letters, the class action form is inappropriate because defendants’ vast improper conduct, successfully diluted any one class member’s recovery. Hinging the appropriateness of the class action form to the number of improper letters sent is inappropriate in this case because, no matter the number of letters, it is unlikely that any proposed class member will bring an individual action against defendants for their alleged violations of the FDCPA. The class action form is the only way to ensure defendants’ compliance with the FDCPA on this point. Each class member has a stake in vindicating his rights, and the public has an interest in seeing that the FDCPA is obeyed. Accordingly, the class action form is the superior method of adjudicating this ease. Adequacy of Representation In order to maintain a class action, plaintiff must demonstrate that the interests of the class will be fairly and adequately protected. Fed.R.Civ.Pro. 23(a)(4). The plaintiffs attorney must be “qualified, experienced and generally able to conduct the proposed litigation.” Eisen v. Carlisle & Jacquelin, 391 F.2d 555, 562 (2d Cir.1968). Additionally, the class representative must not have “interests antagonistic to those of the remainder of the class.” Id. The purpose of this inquiry is to discover any conflicts of interest between the class representative and the class as well as any conflicts or incompe-teney on the part of class counsel. Amchem Products Inc. v. Windsor, - U.S. -, -, - n. 20, 117 S.Ct. 2231, 2250, 2251 n. 20, 138 L.Ed.2d 689 (1997). Defendants challenge the adequacy of plaintiff and his counsel as representatives of the class. First, defendants argue that plaintiff lacks the requisite knowledge of and involvement in his claim to adequately represent the class. Second, defendants argue that plaintiff cannot adequately represent the proposed class because he is unwilling to finance the lawsuit. Finally, defendants argue that plaintiffs counsel lacks the qualifications necessary to serve as counsel to the proposed class. Defendants argue that plaintiff" }, { "docid": "3702709", "title": "", "text": "be actually aware of the proceedings.” Albertson’s, Inc. v. Amalgamated Sugar Co., 503 F.2d 459, 463-64 (10th Cir.1974). When discussing what is required for one to be considered an adequate class representative, the Second Circuit has stated that “an essential concomitant of adequate representation is that the party’s attorney be qualified, experienced and generally able to conduct the proposed litigation. Additionally, it is necessary to eliminate so far as possible the likelihood ... that plaintiff has interests antagonistic to those of the remainder of the class.” Eisen v. Carlisle & Jacquelin, 391 F.2d 555, 562 (2d Cir.1968) (citations omitted). Courts are also to consider whether the plaintiff has sufficient financial resources to conduct the litigation. See, e.g., National Auto Brokers Corp. v. General Motors Corp., 376 F.Supp. 620, 637 (S.D.N.Y.1974), aff'd, 572 F.2d 953 (2d Cir.1978), cert. denied, 439 U.S. 1072, 99 S.Ct. 844, 59 L.Ed.2d 38 (1979). Although plaintiff’s counsel has been unquestionably zealous in his prosecution of this matter to date, mere zeal is not sufficient to constitute “adequate representation.” Mr. Alpern has provided a summary of his background, see Plaintiff’s Reply Memorandum at 41 & n. 45; based on this, it is clear that in the limited time he has been an attorney, he has had absolutely no experience as an attorney for a class representative or as a participant in a class action in any respect. Moreover, given his presentation of the case thus far, I have serious doubts that he is qualified to represent the proposed class. Indicative of his inability to act as the attorney for the putative class is the fact that Mr. Alpern failed to move for class certification “[w]ithin sixty (60) days after the filing of [the class action complaint],” as required by Local Civil Rule 4(c). See Weinberg v. Lear Fan Corp., 102 F.R.D. 269, 272 (S.D.N.Y.1984) (“Counsels’ inattention to the class certification motion is a factor to be considered on the issue of whether the named plaintiffs will fairly and adequately represent the putative class.”). In addition, it is also apparent that plaintiff’s interests are, at least in part," } ]

[ { "docid": "23597437", "title": "", "text": "Hammond’s assertion that he was told by his lawyer that his sentences could aggregate 90 years thus is not effectively controverted, and, when coupled with the information imparted by the clerk that his sentences could aggregate 95 years, would support the inference that Hammond reasonably believed a 90- or 95-year sentence awaited pleas of innocent, should he be found guilty. At the time that Hammond’s guilty pleas were accepted, it was clearly the law in this circuit that a defendant could not be sentenced under both 18 U.S.C. § 2113(a) and 18 U.S.C. § 2113(d) for the same bank robbery. Walters v. Harris, 460 F.2d 988, 994 (4 Cir. 1972), cert. denied, 409 U.S. 1129, 93 S.Ct. 947, 35 L.Ed.2d 262 (1973). See Heflin v. United States, 358 U.S. 415, 79 S.Ct. 451, 3 L.Ed.2d 407 (1959); Prince v. United States, 352 U.S. 322, 77 S.Ct. 403, 1 L.Ed.2d 370 (1957). Had Hammond pled innocent and been convicted on all charges, he could at most have received a sentence of 55 years: 25 years for each of the two counts of violating 18 U.S.C. § 2113(d), and 5 years on the conspiracy count. So far as the record reveals, therefore, Hammond could have believed that he was trading the possibility of a maximum 90- or 95-year sentence for the possibility of a maximum 25-year sentence, while in fact he was trading the possibility of a maximum 55-year sentence for the possibility of a maximum 25-year sentence. II. Although counsel for Hammond treats this as a case where Rule 11, F.R.Cr.P., was not fully satisfied, we think otherwise. The transcript of Hammond’s arraignment shows that a prima facie showing of voluntariness of the pleas was demonstrated on the record. It is true that Rule 11 requires a district court, before accepting a guilty plea, to address a defendant personally to establish, inter alia, that the defendant understands the “consequences of the plea.” This phrase was added by the 1966 Amendments to Rule 11. The Committee Note to the 1966 Amendments to Rule 11 explains that this language was added “to state" } ]

[ { "docid": "14596474", "title": "", "text": "reasonableness, and that but for counsel’s alleged substandard performance, there is a reasonable probability that [he] would not have pleaded guilty.” United States v. Craig, 985 F.2d 175, 179 (4th Cir.1993) (citations omitted). Further, where the issue revolves around knowledge of the potential consequences of pleading guilty, courts find that a proper Rule 11 plea colloquy generally cures any improper advice given prior to the plea. E.g., Lambey, 974 F.2d at 1394-95. If, however, at the Rule 11 hearing, the court specifically warns the defendant of possible results different from those he anticipated because of the prior event or advice, then the defendant bears a heavy burden when attempting to demonstrate that the prior event or advice should form the basis of a fair and just reason for a later withdrawal of his plea. If an appropriately conducted Rule 11 proceeding is to serve a meaningful function, on which the criminal justice sys-tern can rely, it must be recognized to raise a strong presumption that the plea is final and binding. Id. at 1394. Here, there is no specific argument that Wyman did or did not advise the Petitioner of certain facts, such as the proof against him, the elements of the offense or the statutory penalty, which could have affected his decision to plead guilty. Nor is there any assertion that the Court’s plea colloquy was defective in any way. The Court advised the Petitioner of the statutory range of penalty, of the pre-sentence investigation process, and of the possibility that his Guideline sentence may be totally different than that which he and his attorney anticipated. The Petitioner indicated that he fully understood this and decided to proceed with his guilty plea. Merely receiving a larger sentence than that which you expected is not grounds to vacate a plea. See Lambey, 974 F.2d at 1394-95. The Petitioner makes much ado about the fact that there were three different pre-sentence reports with three different sentencing recommendations, each higher in penalty (offense levels of 18, 25, and 33). However, the Petitioner admitted at hearing that he was aware of several potential" }, { "docid": "22633347", "title": "", "text": "also accept his statements at the Rule 11 hearing that he was aware that no sentence had yet been determined and that he could receive a sentence up to life imprisonment. He testified he was aware that any predictions as to a sentence were not binding on the court, and he acknowledged that no promises or understandings, other than as contained in the plea agreement, induced his guilty plea. Statements of fact by a defendant in Rule 11 proceedings may not ordinarily be repudiated, and, similarly, findings by a sentencing court in accepting a plea “constitute a formidable barrier” to attacking the plea. Cf. Blackledge v. Allison, 431 U.S. 63, 73-74, 97 S.Ct. 1621, 1628-1629, 52 L.Ed.2d 136 (1977). We do not rule out the possibility that a defendant’s misapprehension of a likely sentence, based on a clear error in the advice given him, can be a fair and just reason for withdrawal of a guilty plea if it is not corrected by the court at the Rule 11 hearing. Yet if the information given by the court at the Rule 11 hearing corrects or clarifies the earlier erroneous information given by the defendant’s attorney and the defendant admits to understanding the court’s advice, the criminal justice system must be able to rely on the subsequent dialogue between the court and defendant. It is argued that while a minor error by an attorney in estimating a sentence might fail as a just reason for withdrawal of a plea, when the variation between the actual sentencing range and the estimate is as significant as presented here, we leave the realm of reasonable estimating, raising a question about the competency of counsel. As opposed to a “pure guess,” estimation, it is argued, is a form of advice for which there is an objective standard of reasonableness below which an attorney’s conduct should not fall. See United States v. De-Freitas, 865 F.2d at 82 (holding that a plea may be withdrawn when the defendant shows that “counsel’s performance ‘fell below an objective standard of reasonableness’ ” and that but for the error, defendant" }, { "docid": "22633340", "title": "", "text": "for Lambey thereafter amended the motion to withdraw the plea because Lambey had been advised by previous counsel that the offense level “would be either 28 or 29, thus a period of confinement would be between 78 months and 108 months.” Following a hearing at which testimony was received, the district court denied Lam-bey’s motion to withdraw his plea. Lam-bey was subsequently sentenced to 360 months imprisonment on Count I and a concurrent 120 months on Count II. II Lambey contends principally that his motion to withdraw his guilty plea should have been granted because his first attorney’s erroneous estimate on the applicable sentencing guideline range constitutes a “fair and just reason” as used in Fed.R.Crim.P. 32(d) for withdrawal of the plea. He contends that had he been properly advised on the applicable sentencing range, he would have gone to trial. The government argues that Lambey’s “unrealized expectations at sentencing” do not justify allowing him to withdraw his guilty plea. It relies on our decision in United States v. DeFreitas, 865 F.2d 80 (4th Cir.1989) (holding that DeFreitas could withdraw his plea based on conduct of counsel only if (1) counsel’s performance “fell below an objective standard of reasonableness” and (2) he would not have pleaded guilty but for counsel’s error). The government argues that counsel’s advice was just a prediction given with all the admonitions of its potential variation from the actual sentence, and that giving erroneous estimates in this circumstance does not constitute ineffective assistance of counsel. Rule 32(d) of the Federal Rules of Criminal Procedure, under which Lambey filed his motion to withdraw his plea, provides that the district court may permit the withdrawal of a plea before sentencing if the defendant demonstrates a “fair and just reason.” The decision to permit the defendant to withdraw a plea is discretionary, and our review is limited to the question of whether the district court abused its discretion. Rule 32(d) was amended in 1983 to impose a more definite standard on presen-tence motions to withdraw pleas. Before the amendment, withdrawals of pleas were freely allowed unless the “ ‘prosecution" }, { "docid": "22633346", "title": "", "text": "by way of a sentence. He contends simply that he believed he would receive a shorter sentence than that outlined by the court because of discussions with his attorney which took place prior to the Rule 11 proceeding. The undisputed facts reveal that the attorney discussions, relied on by Lambey, involved estimates which Lambey knew were only predictions. Thus the very advice received by Lambey informed him that his plea was not being given for a specific sentence or sentence range, but rather that the sentence would be determined by the court. Lambey again acknowledged advice not to rely on his attorney’s estimates in the written plea agreement and was yet again given such advice by the district court at the Rule 11 hearing. Little more could have been said to warn Lambey about the potential vagaries of sentencing. While we accept Lambey’s claim that, notwithstanding the admonitions not to expect a particular sentence range, he did not expect to be susceptible to such a large variation from the estimates he was given, we must also accept his statements at the Rule 11 hearing that he was aware that no sentence had yet been determined and that he could receive a sentence up to life imprisonment. He testified he was aware that any predictions as to a sentence were not binding on the court, and he acknowledged that no promises or understandings, other than as contained in the plea agreement, induced his guilty plea. Statements of fact by a defendant in Rule 11 proceedings may not ordinarily be repudiated, and, similarly, findings by a sentencing court in accepting a plea “constitute a formidable barrier” to attacking the plea. Cf. Blackledge v. Allison, 431 U.S. 63, 73-74, 97 S.Ct. 1621, 1628-1629, 52 L.Ed.2d 136 (1977). We do not rule out the possibility that a defendant’s misapprehension of a likely sentence, based on a clear error in the advice given him, can be a fair and just reason for withdrawal of a guilty plea if it is not corrected by the court at the Rule 11 hearing. Yet if the information given" }, { "docid": "7368078", "title": "", "text": "“upon the assurances of his counsel that by entering the plea he would not be subjected to a sentence as a career offender.” Appellant’s Br. at 1. To state a valid claim of ineffective assistance of counsel, Foster must show: (1) that his attorney’s performance fell below an objective standard of reasonableness and (2) that he suffered prejudice as a result. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). We have no reason to suspect that Foster’s attorney’s performance fell below an objec tive standard of reasonableness. However, we do not reach this question because Foster was clearly not prejudiced by any misstatements made by his attorney. In an attempt to establish prejudice, Foster maintains that if he had been correctly told that he could be sentenced as a career offender, he would not have pleaded guilty, but would have proceeded to trial. However, any misinformation Foster may have received from his attorney was corrected by the trial court at the Rule 11 hearing, and thus Foster was not prejudiced. As we said sitting en banc in United States v. Lambey, 974 F.2d 1389, 1395 (4th Cir.1992) (en banc), cert. denied, — U.S. -, 115 S.Ct. 672, 130 L.Ed.2d 605 (1994), “if the information given by the court at the Rule 11 hearing corrects or clarifies the earlier erroneous information given by the defendant’s attorney and the defendant admits to understanding the court’s advice, the criminal justice system must be able to rely on the subsequent dialogue between the court and defendant.” We similarly held in United States v. Craig, 985 F.2d 175, 179-80 (4th Cir.1993), that “mis-advice respecting sentencing possibilities” could not be a “but for” cause of a guilty plea where the plea is “based on risk information given ... by the sentencing court.” Therefore, if the trial court properly informed Foster of the potential sentence he faced, he could not be prejudiced by any misinformation his counsel allegedly provided him. As the appellant himself concedes, the trial court fully complied with Rule 11. During the trial court’s Rule 11" }, { "docid": "4604518", "title": "", "text": "to the United States Supreme Court, writing letters to major newspapers throughout the country, and seeking the aid of Justice Souter and Attorney General Janet Reno. Not surprisingly, none of these avenues have been availing to this point in time. . Sampang also seemed to imply intentional misconduct by Detrick. However, Sampang's exhibits and his testimony at trial failed to yield a shred of evidence of intentional wrongdoing. . See also Stewart v. Hall, 770 F.2d 1267, 1269 (4th Cir.1985); Duvall, Blackburn, Hale & Downey v. Siddiqui, 243 Va. 494, 416 S.E.2d 448, 450 (1992); Allied Productions, Inc. v. Duesterdick, 217 Va. 763, 232 S.E.2d 774, 775 (1977). . It is not without purpose that Rule 11 requires the court to address its questions to the defendant, rather than to defendant’s counsel. . [I]f the information given by the court at the Rule 11 hearing corrects or clarifies the earlier erroneous information given by the defendant’s attorney and the defendant admits to understanding the court’s advice, the criminal justice system must be able to rely on the subsequent dialogue between the court and the defendant. U.S. v. Lambey, 974 F.2d 1389, 1395 (4th Cir. 1992) (en banc). . As previously stated, the court has construed liberally Sampang's complaints arising after he pled guilty to include the claim that Detrick should have attempted earlier to withdraw the guilty plea. The motion to withdraw Sampang's guilty plea was denied, however, not because of delay, but because the court found that Sampang freely and voluntarily entered the plea. The court of appeals affirmed, stating: Subsequent to pleading guilty Sampang apparently had a change of heart and concluded that his conduct did not fall within the proscriptions of § 841(a)(1). He raised this contention for the first time at the time of sentencing. A trial court does not abuse its discretion in refusing to give weight to a self-serving, unsupported claim of innocence raised for the first time, as in this case, after the Fed.R.Crim.P. 11 hearing. United States v. Ramos, 810 F.2d 308, 313 (1st Cir.1987). The district court conducted a full hearing" }, { "docid": "22286622", "title": "", "text": "district court may look outside of the Rule 11 proceeding to events or information that affected the fairness of the proceeding. The Lambey Court reasoned that the outside information would not have affected the fairness of the Rule 11 proceeding if a district court \"corrects or clarifies the erroneous information given by the defendant's attorney and the defendant admits to understanding the court’s advice.” Id. at 1395. Although Lambey referred to a curative admonishment, we should keep in mind that this passage was in the context of a Rule 32(d) challenge that centers on the fairness of a Rule 11 proceeding. See id. at 1394 (a Rule 32(d) motion “essentially challenges either the fairness of the Rule 11 proceeding or the fulfillment of a promise or condition emanating from the proceeding.” (emphasis added)). Even in this context, we found probative the fact that in curing the erroneous, but not constitutionally deficient, information given by counsel, the court’s admonishment was \"clear [] and correct [].” Id. at 1396 (emphasis added). . In other cases in which the district court's admonishment was found to have corrected counsel's ineffective assistance regarding deportation, the courts inquired into whether the defendant understood the specific warning pertaining to deportation. See Hernandez-Monreal, 404 Fed.Appx. at 715; Gonzalez v. United States, Nos. 10 Civ. 5463(AKH), 08 Cr. 146(AKH), 2010 WL 3465603, *1 (S.D.N.Y. Sept. 03, 2010) (The district court twice advised the defendant that he faced potential deportation and specifically asked the defendant given that risk whether he still wanted to plead guilty.); United Stales v. Cruz-Veloz, Crim. No. 07-1023, 2010 WL 2925048, at *3 (D.N.J. Jul. 20, 2010) (finding the petitioner was not prejudiced by counsel’s failure to advise of deportation consequences because the district court admonished that he would subject himself to deportation and further asked whether he understood the deportation consequence and still wanted to plead guilty). Here, the district court did not elicit a direct response to the deportation admonishment, but instead asked if Akinsade understood a list of generalized warnings of which deportation was a part. . After oral arguments were heard in" }, { "docid": "22286610", "title": "", "text": "is a reasonable probability that he would not have pled guilty and would have insisted on going to trial. Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). The district court determined that Akinsade had not been prejudiced because its admonishment regarding potential immigration consequences of the guilty plea and Akinsade’s acknowledgement of that admonishment functioned to correct the error of his counsel’s affirmative misrepresentations. We disagree in light of the equivocal nature of the admonishment, counsel’s affirmative misadviee that is clearly contrary to law, and the severity of the consequence itself. A defendant may be unable to show prejudice if at the Rule 11 proceeding the district court provides an admonishment that corrects the misadviee and the defendant expresses that he understands the admonishment. United States v. Hernandez-Monreal, 404 Fed.Appx. 714, 715 (4th Cir.2011) (finding that the defendant was not prejudiced by counsel’s failure to advise of deportation consequences when, during his Rule 11 proceeding, the defendant “affirmatively acknowledged his understanding that his plea ‘could definitely make it difficult, if not impossible, for [him] to successfully stay legally in the United States’ ”); State v. Yahya, No. 1 0AP1190, 2011 WL 5868794, at *5 (Ohio Ct.App. Nov. 22, 2011) (“[A] trial court’s delivery of the warning [that defendant might be deported] would not necessarily cure her attorney’s specific error regarding the consequences of a guilty plea.”). Thus, in United States v. Foster, 68 F.3d 86, 88 (4th Cir.1995), this Circuit determined that the defendant had not been prejudiced by any allegedly incorrect information counsel gave him regarding his sentence because of the district court’s “careful explanation of the potential severity of the sentence” during the Rule 11 hearing. Id. at 88. As part of the “careful explanation,” the district court “specifically informed [the defendant] of the maximum penalties he faced,” and asked whether he understood that he was exposing himself to “possible maximum penalties of up to 20 years in prison” plus “a supervised release term of as much as five years and at least three years.” Id. The district court further asked whether" }, { "docid": "22633389", "title": "", "text": "hearing may well foreclose withdrawal of the plea. I submit, however, that this is far from an ordinary case and is one in which the effect of the Rule 11 colloquy should not be so broad. I would treat the content and effect of the Rule 11 inquiry as merely another, though particularly important, factor in the withdrawal analysis set out above. The majority insists that the district court’s statements to Lambey at the Rule 11 hearing sufficiently warned him that his counsel’s estimates were not to be relied upon. Maj. op. at 1394-1395. While it is true that the district court in a general manner informed Lambey that “no one ... [could] accurately predict” his sentence, the court simply did not inquire with any specificity into whether Lambey’s counsel had made any estimates. It is also incorrect to suggest that the estimates of Lambey’s attorney were announced as only estimates on which Lambey could not rely. A review of the entire transcript attending the plea of guilty, A. 87-101, indicates that the district judge did not mention the estimates of Lambey’s attorney, neither did he state that any such estimate could not be relied upon. Lambey later testified, and in his testimony he is corroborated by the documentary sentencing table given by him by his attorney, plaintiff’s ex. II, A. 104, that his attorney erroneously had informed him that the maximum sentence of 360 months to life did not apply to him, and consequently Lambey was under the impression at the Rule 11 hearing that the court’s admonition regarding that sentence did not apply to him. See A. 47. When an attorney’s advice was so incorrect, as here, as to distort the defendant’s entire understand ing of the significance of the Rule 11 colloquy, I would hold that the defendant is not thereby barred from withdrawing his plea. It is of course true that the 1983 amendments to Fed.R.Crim.P. 32(d) have made the withdrawal of guilty pleas more difficult. However, this court wisely has heretofore avoided sweeping holdings that create unnecessarily inflexible rules regarding the circumstances under which a" }, { "docid": "22633345", "title": "", "text": "the plea had not been established: DeFreitas may withdraw his plea only if he makes two showings: (1) that his counsel’s performance “fell below an objective standard of reasonableness” and (2) that he was prejudiced in the sense that “there [was] a reasonable probability that, but for counsel’s error, he would not have pleaded guilty and would have insisted on going to trial.” 865 F.2d at 82 (quoting Hill v. Lockhart, 474 U.S. 52, 57, 106 S.Ct. 366, 369, 88 L.Ed.2d 203 (1985)). In the present case Lambey raises no objection to what occurred in the Rule 11 hearing or to the accuracy and adequacy of the information presented to him there. The reason he advances for withdrawing his guilty plea does not bear on whether he was in fact guilty. He has suggested no confusion about the nature of the charges, the defenses to them, or their applicability to his factual circumstances to satisfy a finding of guilt. Moreover, he suggests no error in the court’s advice to him on what he could receive by way of a sentence. He contends simply that he believed he would receive a shorter sentence than that outlined by the court because of discussions with his attorney which took place prior to the Rule 11 proceeding. The undisputed facts reveal that the attorney discussions, relied on by Lambey, involved estimates which Lambey knew were only predictions. Thus the very advice received by Lambey informed him that his plea was not being given for a specific sentence or sentence range, but rather that the sentence would be determined by the court. Lambey again acknowledged advice not to rely on his attorney’s estimates in the written plea agreement and was yet again given such advice by the district court at the Rule 11 hearing. Little more could have been said to warn Lambey about the potential vagaries of sentencing. While we accept Lambey’s claim that, notwithstanding the admonitions not to expect a particular sentence range, he did not expect to be susceptible to such a large variation from the estimates he was given, we must" }, { "docid": "23000559", "title": "", "text": "government considered it had a factual and legal basis for prosecuting him by some appropriate form of charge, his knowledge of the substance of that charge, and his personal knowledge whether there was a basis in fact for it. That he could have stood on the right not to be prosecuted on the then extant form of charge surely could have played no role in his decision to plead guilty to charges of whose substance he was fully informed—whatever the formal mode of their charging at the time. The claim of mis-advice respecting sentencing possibilities under the two plea bargains is similarly lacking in merit. We have recognized that sufficiently incorrect advice on sentencing possibilities could satisfy the “performance” prong of the ineffectiveness of counsel standard in assessing Rule 32(d) denials. See Lambey, 974 F.2d at 1395. Without addressing whether that was the case here, we are satisfied that any mis-advice given on relative sentencing possibilities here could not be considered the but-for cause of Craig’s guilty plea. See Fields v. Att’y Gen. of Maryland, 956 F.2d 1290, 1297 (4th Cir.) cert. denied, — U.S. -, 113 S.Ct. 243, 121 L.Ed.2d 176 (1992) (if defendants show no prejudice from alleged ineffectiveness of counsel, courts need not address counsel’s performance). Craig’s claim was that his counsel incorrectly inflated the sentencing possibility under the first plea agreement by 100%, so that he was induced to enter the second agreement. Because, he claims, the sentencing risks were actually the same under both plea agreements, he received no benefit from waiving indictment on the Asheville charge. Be that as it may — and we do not address the accuracy of Craig’s contentions — the record belies any conclusion that but for any such mis-advice (if it was given) Craig would not have pleaded guilty. Craig ultimately entered his plea based on risk information given him by the sentencing court, not his counsel, that he could receive up to twenty years’ imprisonment. This estimate, which Craig admitted to understanding at the Rule 11 hearing, was much greater than either the six and one-half year sentence" }, { "docid": "14596473", "title": "", "text": "must then turn to the specific allegations made by the Petitioner. - Lack of Federal Criminal Experience; Guideline Issues The majority of the Petitioner’s complaints center around Wyman’s professed lack of federal criminal law experience and his failure to accurately and appropriately inform him of and deal with the relevant Sentencing Guideline provisions. Under the standard announced in Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052 (1984), ineffective assistance is rendered if “counsel’s conduct so undermines the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” The Petitioner must show “that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 687,104 S.Ct. 2052. “For ineffective assistance of counsel to constitute a fair and just reason to withdraw a guilty plea, it must be of constitutional magnitude.” United States v. Lambey, 974 F.2d 1389, 1394 (4th Cir.1992). “The defendant must show that his counsel’s performance fell below an objective standard of reasonableness, and that but for counsel’s alleged substandard performance, there is a reasonable probability that [he] would not have pleaded guilty.” United States v. Craig, 985 F.2d 175, 179 (4th Cir.1993) (citations omitted). Further, where the issue revolves around knowledge of the potential consequences of pleading guilty, courts find that a proper Rule 11 plea colloquy generally cures any improper advice given prior to the plea. E.g., Lambey, 974 F.2d at 1394-95. If, however, at the Rule 11 hearing, the court specifically warns the defendant of possible results different from those he anticipated because of the prior event or advice, then the defendant bears a heavy burden when attempting to demonstrate that the prior event or advice should form the basis of a fair and just reason for a later withdrawal of his plea. If an appropriately conducted Rule 11 proceeding is to serve a meaningful function, on which the criminal justice sys-tern can rely, it must be recognized to raise a strong presumption that the plea is final and binding. Id. at 1394. Here," }, { "docid": "7368079", "title": "", "text": "was not prejudiced. As we said sitting en banc in United States v. Lambey, 974 F.2d 1389, 1395 (4th Cir.1992) (en banc), cert. denied, — U.S. -, 115 S.Ct. 672, 130 L.Ed.2d 605 (1994), “if the information given by the court at the Rule 11 hearing corrects or clarifies the earlier erroneous information given by the defendant’s attorney and the defendant admits to understanding the court’s advice, the criminal justice system must be able to rely on the subsequent dialogue between the court and defendant.” We similarly held in United States v. Craig, 985 F.2d 175, 179-80 (4th Cir.1993), that “mis-advice respecting sentencing possibilities” could not be a “but for” cause of a guilty plea where the plea is “based on risk information given ... by the sentencing court.” Therefore, if the trial court properly informed Foster of the potential sentence he faced, he could not be prejudiced by any misinformation his counsel allegedly provided him. As the appellant himself concedes, the trial court fully complied with Rule 11. During the trial court’s Rule 11 hearing at which Foster’s guilty plea was entered, the court specifically informed Foster of the maximum penalties he faced: THE COURT: Do you understand that by entering into this agreement, you expose yourself to possible maximum penalties of up to 20 years in prison or a fine of 1 million dollars and a supervised release term of as much as five years and at least three years? THE DEFENDANT: Yes, sir. J.A at 38. The trial court also explained: THE COURT: All right. Do you understand that [the Sentencing Guidelines] provides a formula to the sentencing judge where I look, among other things, to the extent of your involvement in this particular offense, [and] your past record, if any ? THE DEFENDANT: Yes, sir. J.A. at 38-39. Finally, Foster was also asked by the trial court if he had been given any promises with respect to sentencing: THE COURT: Has anyone made any promises or predictions to you as to how this judge will sentence you different than what I’ve explained to you? THE DEFENDANT:" }, { "docid": "22633344", "title": "", "text": "demonstrate that the prior event or advice should form the basis of a fair and just reason for a later withdrawal of his plea. If an appropriately conducted Rule 11 proceeding is to serve a meaningful function, on which the criminal justice system can rely, it must be recognized to raise a strong presumption that the plea is final and binding. In DeFreitas the defendant sought to withdraw a guilty plea on the basis that he was improperly advised on law and fact by his counsel and therefore his plea was not freely and voluntarily tendered. Counsel allegedly failed to advise DeFreitas on elements of proof in which the United States had the burden and on the vulnerability of a government witness. He also failed to advise DeFreitas that he might be subject to deportation if he pleaded guilty. Because the advice and conduct of counsel, even when coupled with other alleged acts of misfeasance, did not fall below an objective standard of reasonableness, we concluded that a “fair and just” reason for withdrawal of the plea had not been established: DeFreitas may withdraw his plea only if he makes two showings: (1) that his counsel’s performance “fell below an objective standard of reasonableness” and (2) that he was prejudiced in the sense that “there [was] a reasonable probability that, but for counsel’s error, he would not have pleaded guilty and would have insisted on going to trial.” 865 F.2d at 82 (quoting Hill v. Lockhart, 474 U.S. 52, 57, 106 S.Ct. 366, 369, 88 L.Ed.2d 203 (1985)). In the present case Lambey raises no objection to what occurred in the Rule 11 hearing or to the accuracy and adequacy of the information presented to him there. The reason he advances for withdrawing his guilty plea does not bear on whether he was in fact guilty. He has suggested no confusion about the nature of the charges, the defenses to them, or their applicability to his factual circumstances to satisfy a finding of guilt. Moreover, he suggests no error in the court’s advice to him on what he could receive" }, { "docid": "22633348", "title": "", "text": "by the court at the Rule 11 hearing corrects or clarifies the earlier erroneous information given by the defendant’s attorney and the defendant admits to understanding the court’s advice, the criminal justice system must be able to rely on the subsequent dialogue between the court and defendant. It is argued that while a minor error by an attorney in estimating a sentence might fail as a just reason for withdrawal of a plea, when the variation between the actual sentencing range and the estimate is as significant as presented here, we leave the realm of reasonable estimating, raising a question about the competency of counsel. As opposed to a “pure guess,” estimation, it is argued, is a form of advice for which there is an objective standard of reasonableness below which an attorney’s conduct should not fall. See United States v. De-Freitas, 865 F.2d at 82 (holding that a plea may be withdrawn when the defendant shows that “counsel’s performance ‘fell below an objective standard of reasonableness’ ” and that but for the error, defendant would probably have insisted on a trial) (quoting Hill v. Lockhart, 474 U.S. 52, 57, 106 S.Ct. 366, 369 (1985)); cf. Via v. Superintendent, Powhatan Correctional Ctr., 643 F.2d 167, 171 (4th Cir.1981) (to attack “the voluntary and intelligent character” of a guilty plea, the defendant must show that the advice received was not “within the range of competence demanded of attorneys in criminal cases”). Other than the significant discrepancy between the sentencing range estimated by Lambey’s attorney and the range actually applied, however, the record reveals no evidence of incompetence. On the contrary, counsel for Lambey had attended training courses on the Sentencing Guidelines and had consulted with other attorneys before giving his estimate. Also telling, the attorney representing Lambey before this Court, who is different from the counsel who made the estimate for Lambey, urges by way of alternative argument on appeal that the estimate was correct and the sentencing court applied the wrong guidelines range. Finally, the same method of calculation was also urged as a ground for appeal to reverse the" }, { "docid": "22633390", "title": "", "text": "did not mention the estimates of Lambey’s attorney, neither did he state that any such estimate could not be relied upon. Lambey later testified, and in his testimony he is corroborated by the documentary sentencing table given by him by his attorney, plaintiff’s ex. II, A. 104, that his attorney erroneously had informed him that the maximum sentence of 360 months to life did not apply to him, and consequently Lambey was under the impression at the Rule 11 hearing that the court’s admonition regarding that sentence did not apply to him. See A. 47. When an attorney’s advice was so incorrect, as here, as to distort the defendant’s entire understand ing of the significance of the Rule 11 colloquy, I would hold that the defendant is not thereby barred from withdrawing his plea. It is of course true that the 1983 amendments to Fed.R.Crim.P. 32(d) have made the withdrawal of guilty pleas more difficult. However, this court wisely has heretofore avoided sweeping holdings that create unnecessarily inflexible rules regarding the circumstances under which a guilty plea may be withdrawn. Our desire to impart finality to criminal proceedings should not outweigh a defendant’s right to be tried, and especially by jury, when that right was waived under circumstances such as those present here. Lambey had no one to turn to except his attorney, unless the probation officer is counted. The attorney admittedly gave Lambey incorrect advice of great magnitude, which mistake obviously was caught by the probation officer. Immediately upon being advised of the mistake, Lambey asked to have his plea withdrawn. This act and the documentary corroboration of the mistake of his attorney established beyond a doubt his- good faith. Moreover, there was nothing else that Lambey could do at the time except seek to withdraw his plea. The effect of the majority opinion is such that advice from the court as to the length of the maximum sentence “[a]nd that under guideline sentencing, no one can accurately predict what your sentence will be until such time as a presentence report has been made available to the court,” A." }, { "docid": "22633380", "title": "", "text": "his attorney’s error during a presentence interview with his probation officer, on December 4, 1989, five days after his guilty plea was entered, but before he was sentenced. Upon learning that he faced a substantially longer prison term than his attorney had led him to believe, Lambey immediately dispatched letters to his attorney and to the district court asking that he be allowed to withdraw his guilty plea and be tried by a jury. In his letter to the court Lambey stated that his guilty pleas were “ill advised, and made at a time of great stress.” Lambey’s counsel followed up this letter by filing formal motions to withdraw the pleas. These motions fully explained the deficiencies of his counsel’s earlier advice and the circumstances under which the pleas of guilty were entered. Prior to denying Lambey’s motions and imposing sentence, the district court received testimony and heard argument regarding his counsel’s erroneous advice. Lambey himself testified unequivocally that he would not have waived his right to trial by jury had he received proper advice regarding the range of prison terms that he faced. While the testimony of Lambey, of course, might be discounted, the other facts which are undisputed can not, and the district court was thus fully aware before sentencing of the circumstances surrounding Lambey’s guilty pleas and of his desire to be tried by a jury. My objection to the majority decision lies in the application of the standard governing motions to withdraw pleas of guilty. Fed.R.Crim.P. 32(d) allows the district court to permit a defendant to withdraw a guilty plea before sentence is imposed “upon a showing by the defendant of any fair and just reason.” Following our decision in United States v. DeFrietas, 865 F.2d 80 (4th Cir.1989), the majority would require a federal defendant seeking to withdraw his guilty plea before sentencing under Fed.R.Crim.P. 32(d) on the grounds of erroneous pre-plea legal advice to show that his attorney rendered constitutionally ineffective assistance under the stringent standard of Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985), and Strickland v. Washington," }, { "docid": "11808886", "title": "", "text": "have had occasion to address the issue. We will briefly discuss those decisions. However, we do not find this legal issue dispositive in the instant case, for reasons that we will presently explain. The Court of Appeals for the Fourth Circuit takes the position that assuming arguendo that defense counsel failed to advise the client that career offender status might apply, no prejudice under Strickland can be established if the Rule 11 colloquy was properly conducted. See United States v. Foster, 68 F.3d 86, 87 (4th Cir.1995). Petitioner in Foster received 151 months imprisonment based upon career offender enhancement, and contended in his § 2255 motion that his counsel had assured him that he would not be sentenced as a career offender. The district court made no specific mention of the career offender provisions during the guilty plea hearing, which the petitioner conceded complied with all the requirements of Rule 11. In affirming the district court’s denial of his § 2255 motion without an evidentiary hearing, the circuit court ruled: We have no reason to suspect that [defendant’s] attorney’s performance fell below an objective standard of reasonableness. However, we do not reach this question because [he] was clearly not prejudiced by any misstatements made by his attorney. In an attempt to establish prejudice, [defendant] maintains that if he had been correctly told that he could be sentenced as a career offender, he would not have pleaded guilty, but would have proceeded to trial. However, any misinformation [defendant] may have received from his attorney was corrected by the trial court at the Rule 11 hearing, and thus [he] was not prejudiced____ Therefore, if the trial court properly informed [defendant] of the potential sentence he faced, he could not be prejudiced by any misinformation his counsel allegedly provided him. Foster, 68 F.3d at 87-88 (internal citations and quotations omitted). The Eighth Circuit, on the other hand, has held that such failure by the defense attorney prior to a proper Rule 11 hearing, even if it did occur, would not fall below the objective standard of reasonableness as required under the first prong" }, { "docid": "23000560", "title": "", "text": "956 F.2d 1290, 1297 (4th Cir.) cert. denied, — U.S. -, 113 S.Ct. 243, 121 L.Ed.2d 176 (1992) (if defendants show no prejudice from alleged ineffectiveness of counsel, courts need not address counsel’s performance). Craig’s claim was that his counsel incorrectly inflated the sentencing possibility under the first plea agreement by 100%, so that he was induced to enter the second agreement. Because, he claims, the sentencing risks were actually the same under both plea agreements, he received no benefit from waiving indictment on the Asheville charge. Be that as it may — and we do not address the accuracy of Craig’s contentions — the record belies any conclusion that but for any such mis-advice (if it was given) Craig would not have pleaded guilty. Craig ultimately entered his plea based on risk information given him by the sentencing court, not his counsel, that he could receive up to twenty years’ imprisonment. This estimate, which Craig admitted to understanding at the Rule 11 hearing, was much greater than either the six and one-half year sentence he actually received or the 12 to 14 years that counsel allegedly told him he might receive under the rejected plea agreement. J.A. at 21; cf. Lambey, 974 F.2d at 1395-96. Finally, we cannot find any error in the district court’s implicit rejection of Craig’s claim that in the end his counsel had bullied him into pleading guilty. Counsel’s explanation of his advice to Craig respecting the wisdom of entering the, second plea agreement credibly supports the district court’s rejection of the claim of coercion. And this is of course bolstered by Craig’s agreement during the properly conducted Rule 11 proceeding that he had been “entirely satisfied” with his counsel’s services. Accordingly, we find no abuse of discretion in the district court’s denial of Craig’s motion to withdraw his guilty plea because of alleged ineffectiveness of his counsel. IV Although Craig did not seek an evidentia-ry hearing on his Rule 32(d) motion to withdraw his plea in the district court, he seeks in this court a remand for such a hearing as an alternative remedy." }, { "docid": "22286621", "title": "", "text": ". The dissent contends that the district court did not make a finding as to whether valid reasons exist to explain why Akinsade did not seek appropriate relief sooner. To support this contention, the dissent cites Nicks v. United States, 955 F.2d 161, 167-68 (2d Cir.1992). In that case, the Second Circuit concluded that the record before it was insufficient to resolve this requirement. Id. As a result, the court remanded the case to the district court to make any necessary factual findings. In this case however, the record demonstrates that Akinsade had not discovered that his counsel misadvised him until he was physically detained by immigration authorities nine years later. Because the record is sufficient for us to decide the issue, we need not remand the case. . The dissent cites United States v. Lambey, 974 F.2d 1389, 1395 (4th Cir.1992) (en banc), where this Circuit noted that in the context of deciding whether a defendant has presented a \"fair and just reason” for a Rule 32(d) motion to withdraw a guilty plea, a district court may look outside of the Rule 11 proceeding to events or information that affected the fairness of the proceeding. The Lambey Court reasoned that the outside information would not have affected the fairness of the Rule 11 proceeding if a district court \"corrects or clarifies the erroneous information given by the defendant's attorney and the defendant admits to understanding the court’s advice.” Id. at 1395. Although Lambey referred to a curative admonishment, we should keep in mind that this passage was in the context of a Rule 32(d) challenge that centers on the fairness of a Rule 11 proceeding. See id. at 1394 (a Rule 32(d) motion “essentially challenges either the fairness of the Rule 11 proceeding or the fulfillment of a promise or condition emanating from the proceeding.” (emphasis added)). Even in this context, we found probative the fact that in curing the erroneous, but not constitutionally deficient, information given by counsel, the court’s admonishment was \"clear [] and correct [].” Id. at 1396 (emphasis added). . In other cases in which" } ]

[ { "docid": "14174865", "title": "", "text": "instruction on the dismissal of the third-party defendants, prevented appellant from receiving a fair trial. AFFIRMED IN PART, REVERSED IN PART, AND REMANDED . “A motion in limine is a motion made prior to trial for the purpose of prohibiting opposing counsel from mentioning the existence of, alluding to, or offering evidence on matters so highly prejudicial to the moving party that a timely motion to strike or an instruction by the court to the jury to disregard the offending matter cannot overcome its prejudicial influence on the jurors’ minds.” Commentary, The Motion in Limine: Pretrial Trump Card in Civil Litigation, 27 U.Fla.Law.Rev. 531 (1975) (footnotes omitted). . Fed.R.Civ.P. 61 provides: No error in either the admission or the exclusion of evidence and no error or defect in any ruling or order or in anything done or omitted by the court or by any of the parties is ground for granting a new trial or for setting aside a verdict or for vacating, modifying, or otherwise disturbing a judgment or order, unless refusal to take such action appears to the court inconsistent with substantial justice. Tlie court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties. . For the propriety of using the Kotteakos test in a civil context, Kotteakos being a criminal case, see Conway v. Chemical Leaman Tank Lines, Inc., 525 F.2d 927, 929 n. 3 (5th Cir. 1976). . There are strong policy reasons why jury interrogations are disfavored. In United States v. Crosby, 294 F.2d 928, 950 (2d Cir. 1961), cert. denied, sub nom. Mittelman v. United States, 368 U.S. 984, 82 S.Ct. 599, 7 L.Ed.2d 523 (1962), the court said; There are many cogent reasons militating against post-verdict inquiry into jurors’ motives for decision. The jurors themselves ought not be subjected to harassment; the courts ought not be burdened with large numbers of applications mostly without real merit; the chances and temptations for tampering ought not be increased; verdicts ought not be made so uncertain. Whenever information erroneously reaches" } ]

[ { "docid": "2453285", "title": "", "text": "credibility of the source in determining whether a hearing must be held. United States v. Hendrix, 549 F.2d 1225, 1227-28 (9th Cir.1977) (citation omitted). Considering these factors and the policy in favor of such hearings in light of the juror affidavits, the district court abused its discretion by not holding a hearing to investigate the allegation that Fraser failed to answer honestly a material question during voir dire. See McDonough Power Equipment, Inc. v. Greenwood, 464 U.S. 548, 556, 104 S.Ct. 845, 850, 78 L.Ed.2d 663 (1984). The district court has the discretion to determine the extent and nature of the hearing. Hendrix, 549 F.2d at 1227. We hold only that a hearing must be held. B. Introduction of Extraneous Evidence According to the affidavits, juror Fraser told other jurors about Burlington Northern’s, or its predecessor’s, settlement practices, including payment of injured employees’ medical expenses. Hard argues that the introduction of these statements into jury deliberations requires that he be given a new trial. Since Hard seeks to impeach the jury’s verdict, he has to once again overcome the hurdle posed by Federal Rule of Evidence 606(b). The district court ruled that he had not. Federal Rule of Evidence 606(b) prohibits juror testimony about the deliberative process or subjective effects of the extraneous information. Abatino v. United States, 750 F.2d 1442, 1446 (9th Cir.1985). Juror testimony is, however, admissible as to objective facts bearing on extraneous influences on the deliberation process. Id. Cases such as this normally raise no problem of extraneous influence. Jurors must rely on their past personal experiences when hearing a trial and deliberating on a verdict. Where, however, those experiences are related to the litigation, as they are here, they constitute extraneous evidence which may be used to impeach the jury’s verdict. See Maldonado, 798 F.2d at 769-70; Gov’t of the Virgin Islands v. Gereau, 523 F.2d 140, 150 (3d Cir.1975), cert. denied, 424 U.S. 917, 96 S.Ct. 1119, 47 L.Ed.2d 323 (1976); 3 J. Weinstein & M. Berger, Weinstein’s Evidence ¶ 606[04] at 606-30 (1985). Since Fraser’s statements constitute evidence of extraneous influence, testimony as" }, { "docid": "7018201", "title": "", "text": "return of the jurors to the jury room, Mrs. Elliott voted with the others in finding that petitioner was guilty of first degree murder. Mrs. Elliott’s affidavit and testimony before the state trial court on the motion for new trial constitute the only evidence presented to this Court with respect to the present habeas corpus petition. II. CONCLUSIONS OF LAW At the conclusion of Mrs. Elliott’s testimony on the motion for new trial, the trial judge ruled that he could not consider Mrs. Elliott’s version of the jury proceedings because the matter testified to “inhere[d] in the verdict.” The Iowa Supreme Court affirmed this reasoning. State v: Smith, supra at 696. The state courts thus applied an evidentiary rule common to both federal and state jurisprudence that “a jur- or may not impeach his own verdict once the jury has been discharged.” Government of the Virgin Islands v. Gereau, 523 F.2d 140, 148 (3d Cir. 1975), cert. denied, 424 U.S. 917, 96 S.Ct. 1119, 47 L.Ed.2d 323 (1976). See, e. g., McDonald v. Pless, 238 U.S. 264, 267-69, 35 S.Ct. 783, 59 L.Ed. 1300 (1915); United States v. Gambina, 564 F.2d 22, 24 (8th Cir. 1977); Pruitt v. Hutto, 542 F.2d 458, 460 (8th Cir. 1976); United States v. Eagle, 539 F.2d 1166, 1169-70 (8th Cir. 1976), cert. denied, 429 U.S. 1110, 97 S.Ct. 1146, 51 L.Ed.2d 563 (1977); United States v. Schroeder, 433 F.2d 846, 851 (8th Cir. 1970), cert. denied 401 U.S. 943, 91 S.Ct. 951, 28 L.Ed.2d 224 (1971); State v. Berch, 222 N.W.2d 741, 747-48 (Iowa 1974). Congress has codified the common law concept of juror incompetency in Rule 606(b) of the Federal Rules of Evidence. Eagle, supra at 1170. These principles are, of course, as applicable to a federal court on consideration of a petition for a writ of habeas corpus as in any other type of proceeding. See Pruitt, supra at 458, 460; Gafford v. Warden, 434 F.2d 318, 320 (10th Cir. 1970). There is, however, a major exception to the rule of juror incompetency, one which is also reflected in Rule 606(b). “[A]" }, { "docid": "22437482", "title": "", "text": "argue the significance of the information to the jury, or request a curative instruction. See Gibson v. Clanon, 633 F.2d 851, 854 (9th Cir. 1980), cert. denied, 450 U.S. 1035, 101 S.Ct. 1749, 68 L.Ed.2d 231 (1981). . Fed.R.Evid. 606(b) reads: Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon his or any other jur- or’s mind or emotions as influencing him to assent to or dissent from the verdict or indictment or concerning his mental processes in connection therewith, except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury’s attention or whether any outside influence was improperly brought to bear upon any juror. The policy embraced by Fed.R.Evid. 606(b) serves several public interests. The rule discourages harassment of jurors by defendants after a guilty verdict, encourages free and open discussion in the jury room, reduces incentives for jury tampering, promotes finality, and respects the institution of the jury as a fact-finding body. See McDonald v. Pless, 238 U.S. 264, 267, 35 S.Ct. 783, 784, 59 L.Ed. 1300 (1915); Government of Virgin Islands v. Gereau, 523 F.2d 140, 148 (3d Cir. 1975), cert. denied, 424 U.S. 917, 96 S.Ct. 1119, 47 L.Ed.2d 323 (1976). . Compare United States v. Renteria, 625 F.2d 1279 (5th Cir. 1980) (“If the trial judge finds that the jury had before it prejudicial material, the inquiry is complete and the conviction must be reversed.”), and Farese v. United States, 428 F.2d 178 (5th Cir. 1970), with Llewellyn v. Stynchcombe, 609 F.2d 194 (5th Cir. 1980), and United States v. McKinney, 429 F.2d 1019 (5th Cir.), modified & rev’d on rehearing, 434 F.2d 831 (5th Cir. 1970), cert. denied, 401 U.S. 922, 91 S.Ct. 910, 27 L.Ed.2d 825 (1971). To the extent Farese and Renteria may be read to state a per se test in the Fifth Circuit, a reading with which we disagree, we decline to acknowledge such" }, { "docid": "13298051", "title": "", "text": "a juror in impeachment of his own verdict. McDonald v. Pless, 238 U.S. 264, 268-69, 35 S.Ct. 783, 784-785, 59 L.Ed. 1300, 1302 (1915); Mattox v. United States, 146 U.S. 140, 148, 13 S.Ct. 50, 52, 36 L.Ed. 917, 92 (1892); Government of Virgin Islands v. Gereau, 523 F.2d 140, 148-49 (3d Cir. 1975); Klimes v. United States, 105 U.S.App.D.C. 23, 24, 263 F.2d 273, 274 (1959); Jorgenson v. York Ice Machinery Corp., 160 F.2d 432, 435 (2d Cir.), cert. denied, 332 U.S. 764, 68 S.Ct. 69, 92 L.Ed. 349 (1947). In Government of Virgin Islands v. Gereau, supra, the Third Circuit admirably encapsulates the principles involved here. Citing McDonald, supra, and other authorities, the Court wrote, concerning the rule of exclusion of a juror’s impeachment testimony: The rule was formulated to foster several public policies: (1) discouraging harassment of jurors by losing parties eager to have the verdict set aside; (2) encouraging free and open discussion among jurors; (3) reducing incentives for jury tampering; (4) promoting verdict finality; (5) maintaining the viability of the jury as a judicial decision-making body. McDonald, supra; United States v. Dioguardi, 492 F.2d 70 (2d Cir.), cert. denied, 419 U.S. 829 [95 S.Ct. 49, 42 L.Ed.2d 53] (1974); Miller v. United States, 403 F.2d 77 (2d Cir. 1968). Courts applying the rule were, however, early aware that any flat prohibition against receiving such testimony contravened another public policy: that of “redressing the injury of the private litigant” where a verdict was reached by a jury not impartial. McDonald, supra, 238 U.S. [264] at 267, 35 S.Ct. at [783] 784 [, 59 L.Ed. 1300]. In order to accommodate these conflicting policies, Miller, supra, at 82, the courts, often continuing to recite the canon of “no impeachment,” evolved a more flexible rubric. This latter rule interdicted reception of a juror’s evidence only where it was offered “to show matters which essentially inhere in the verdict itself.” Hyde v. United States, 225 U.S. 347, 384, 32 S.Ct. 793, 808, 56 L.Ed. 1114 (1912); Domeracki v. Humble Oil & Refining Co., 443 F.2d 1245 (3d Cir.), cert. denied," }, { "docid": "2453286", "title": "", "text": "once again overcome the hurdle posed by Federal Rule of Evidence 606(b). The district court ruled that he had not. Federal Rule of Evidence 606(b) prohibits juror testimony about the deliberative process or subjective effects of the extraneous information. Abatino v. United States, 750 F.2d 1442, 1446 (9th Cir.1985). Juror testimony is, however, admissible as to objective facts bearing on extraneous influences on the deliberation process. Id. Cases such as this normally raise no problem of extraneous influence. Jurors must rely on their past personal experiences when hearing a trial and deliberating on a verdict. Where, however, those experiences are related to the litigation, as they are here, they constitute extraneous evidence which may be used to impeach the jury’s verdict. See Maldonado, 798 F.2d at 769-70; Gov’t of the Virgin Islands v. Gereau, 523 F.2d 140, 150 (3d Cir.1975), cert. denied, 424 U.S. 917, 96 S.Ct. 1119, 47 L.Ed.2d 323 (1976); 3 J. Weinstein & M. Berger, Weinstein’s Evidence ¶ 606[04] at 606-30 (1985). Since Fraser’s statements constitute evidence of extraneous influence, testimony as to their occurrence should not be barred by Federal Rule of Evidence 606(b). The court erred in ruling otherwise. Hard must still establish that the error or defect in the proceedings affected the substantial rights of the parties to be entitled to a new trial. Benna v. Reeder Flying Service, Inc., 578 F.2d 269, 271 (9th Cir.1978); Fed.R.Civ.P. 61. But cf. Haley v. Blue Ridge Transfer Co., Inc., 802 F.2d 1532, 1535 (4th Cir.1986) (reasonable possibility of affecting the verdict). The information contained in the affidavits is significant enough to make appropriate a hearing to determine whether or not Hard can establish the need for a new trial. The district court abused its discretion by not holding such a hearing. II. Inadequate Damages Hard argues that he should have a new trial because the jury’s damage award was grossly inadequate. The jury determined damages to be $10,000, but awarded Hard only $5,000 because it found him 50% negligent. The issue is not whether this court finds damages low, but whether the district court abused its" }, { "docid": "13298050", "title": "", "text": "significant that appellant worked with Wiggins as a maintenance man (Tr. 121) and hence had at least as much, if not more, ability to reach Wiggins as did the Government. Yet he made no effort to locate Wiggins, so he could testify for him (Tr. 133-34). The trial court therefore properly denied the request. Graves v. United States, 150 U.S. 118, 121, 14 S.Ct. 40, 41, 37 L.Ed. 1021, 1023 (1893); United States v. Ferguson, 162 U.S.App.D.C. 268, 275, 498 F.2d 1001, 1008, cert. denied, 419 U.S. 900, 95 S.Ct. 183, 42 L.Ed.2d 145 (1974); United States v. Young, 150 U.S.App.D.C. 98, 103-04, 463 F.2d 934, 939-40 (1972). Ill As his third basis of appeal, appellant asserts that the trial court should have summoned juror Sistrunk and examined him to ascertain whether any “undue influence” affected the verdict and “determine the sufficiency of any charges made by the juror as possible grounds for ordering a new trial.” Appellant Br. 20. The federal courts do not adhere to a rule of strict exclusion of testimony by a juror in impeachment of his own verdict. McDonald v. Pless, 238 U.S. 264, 268-69, 35 S.Ct. 783, 784-785, 59 L.Ed. 1300, 1302 (1915); Mattox v. United States, 146 U.S. 140, 148, 13 S.Ct. 50, 52, 36 L.Ed. 917, 92 (1892); Government of Virgin Islands v. Gereau, 523 F.2d 140, 148-49 (3d Cir. 1975); Klimes v. United States, 105 U.S.App.D.C. 23, 24, 263 F.2d 273, 274 (1959); Jorgenson v. York Ice Machinery Corp., 160 F.2d 432, 435 (2d Cir.), cert. denied, 332 U.S. 764, 68 S.Ct. 69, 92 L.Ed. 349 (1947). In Government of Virgin Islands v. Gereau, supra, the Third Circuit admirably encapsulates the principles involved here. Citing McDonald, supra, and other authorities, the Court wrote, concerning the rule of exclusion of a juror’s impeachment testimony: The rule was formulated to foster several public policies: (1) discouraging harassment of jurors by losing parties eager to have the verdict set aside; (2) encouraging free and open discussion among jurors; (3) reducing incentives for jury tampering; (4) promoting verdict finality; (5) maintaining the viability of the" }, { "docid": "1514343", "title": "", "text": "apparent acquiescence with the purpose of subsequent dissent; to induce tampering with individual jurors subsequent to the verdict. But as to overt acts, they are accessible to the knowledge of all the jurors; if one affirms misconduct, the remaining eleven can deny; one cannot disturb the action of the twelve; it is useless to tamper with one, for the eleven may be heard. Id. at 148-49, 13 S.Ct. at 52-53 (quoting Perry v. Bailey, 12 Kans. 539, 545). See also Rushen v. Spain, 464 U.S. 114, 121 n. 5, 104 S.Ct. 453, 457 n. 5, 78 L.Ed.2d 267 (1983) (\"a juror generally cannot testify about the mental process by which the verdict was arrived”); Government of Virgin Islands v. Gereau, 523 F.2d 140, 149 (3d Cir.1975), cert. denied, 424 U.S. 917, 96 S.Ct. 1119, 47 L.Ed.2d 323 (1976) (no evidence permitted from juror as to mental process of juror or jury or method by which the verdict is reached). This policy of limiting juror impeachment has also been incorporated into Federal Rule of Evidence 606. It would appear that Wolbach’s status as a holdout juror prior to the unmasking, his reason for unmasking the exhibits, the preliminary vote of the other eleven jurors prior to the unmasking and the effect of the unmasking on Wolbach and the other jurors all concern the mental processes of the jury and the impact of the extra-record evidence upon these mental processes. The Advisory Committee Notes to F.R.E. 606(b) indicate that the limitation on testimony extends to \"each of the components of deliberation, including arguments, statements, discussions, mental and emotional reactions, votes, and any other feature of the process.” The limitations of Rule 606(b) would be fully applicable to the present proceeding even though the evidence in question was developed during a state court evidentiary hearing. Smith v. Brewer, 444 F.Supp. 482, 489 (S.D.Iowa), aff'd, 577 F.2d 466 (8th Cir.), cert. denied, 439 U.S. 967, 99 S.Ct. 457, 58 L.Ed.2d 426 (1978). In any event, Rule 606(b) is essentially a codification of preexisting common law. United States v. Eagle, 539 F.2d 1166, 1170 (8th" }, { "docid": "3867066", "title": "", "text": "room. See Tanner v. United States, 483 U.S. 107, 117, 107 S.Ct. 2739, 2745-46, 97 L.Ed.2d 90 (1987); McDonald v. Pless, 238 U.S. 264, 268, 35 S.Ct. 783, 784, 59 L.Ed. 1300 (1915); Government of Virgin Islands v. Gereau, 523 F.2d 140, 148 n. 19 (3d Cir.1975), cert. denied, 424 U.S. 917, 96 S.Ct. 1119, 47 L.Ed.2d 323 (1976). That precept has been codified in the federal system as Fed. R. Evid. 606(b), which provides, in relevant part: Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon that or any other juror’s mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror’s mental processes in connection therewith, except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury’s attention or whether any outside influence was improperly brought to bear upon any juror. See also Tanner, 483 U.S. at 121, 107 S.Ct. at 2748; Gereau, 523 F.2d at 149 n. 22. Testimony concerning “intimidation or harassment of one juror by another” falls squarely within the core prohibition of the Rule. Id. at 150. Recognizing the considerable obstacle this provision places in his path, Stansfield attempts to clear the hurdle in two ways. First, he contends that Rule 606(b) is implicated only after a jury has been discharged. Because the district court was aware of an irregularity before it discharged the jury, the argument goes, it should have waited to discharge them until it had spoken to the three jurors. Second, he argues, although Rule 606(b) bars members of a jury from impeaching is own verdict, it does not bar the use of jurors’ testimony to impeach an allegedly defective jury poll. We address these contentions in turn. 1. There is some support for Stansfield’s argument that timing is relevant in considering the implications of Rule 606(b). In Tanner, 483 U.S. at 127, 107 S.Ct." }, { "docid": "3867065", "title": "", "text": "was to run concurrently with a 7 1/2 to 15 year sentence imposed in the Court of Common Pleas of Dauphin County, Pennsylvania, stemming from the October 7, 1993, incident. This appeal followed. II. A. Stansfield contends that, based on the in camera questioning of jurors number one, four, and nine, the verdict as to Counts I, II, VI, and VII was not unanimous and the matter should be remanded for a new trial on these counts. Moreover, he contends that because the forfeiture count on which he was convicted, Count XII, was predicated on the guilty verdict on Counts VI and VII, that count should also be reversed and remanded. We hold that, pursuant to Fed. R. Evid. 606(b), consideration of the testimony of those jurors is not permitted. The judgment of conviction on those counts will be affirmed. It is a common-law rule of ancient vintage that a jury’s verdict may not be impeached by the testimony of a juror concerning any influences on the jury’s deliberations that emanated from -within the jury room. See Tanner v. United States, 483 U.S. 107, 117, 107 S.Ct. 2739, 2745-46, 97 L.Ed.2d 90 (1987); McDonald v. Pless, 238 U.S. 264, 268, 35 S.Ct. 783, 784, 59 L.Ed. 1300 (1915); Government of Virgin Islands v. Gereau, 523 F.2d 140, 148 n. 19 (3d Cir.1975), cert. denied, 424 U.S. 917, 96 S.Ct. 1119, 47 L.Ed.2d 323 (1976). That precept has been codified in the federal system as Fed. R. Evid. 606(b), which provides, in relevant part: Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon that or any other juror’s mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror’s mental processes in connection therewith, except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury’s attention or whether any outside influence was improperly brought to" }, { "docid": "21913787", "title": "", "text": "unanimous verdict. They urge that the verdict be set aside, or at least that the case be remanded for specific inquiry with counsel present pursuant to District Court Local Rule l-28(c). Only in extraordinary circumstances do courts inquire into the deliberative process of juries, and this is not such a case. Ordinarily, a verdict will not be upset on the basis of a juror’s post-trial report of what occurred in the course of deliberations. See, e.g., McDonald v. Pless, 238 U.S. 264, 267, 35 S.Ct. 783, 784, 59 L.Ed. 1300 (1915); Fed.R.Evid. 606(b); cf. Jorgensen v. York Ice Machinery Corp., 160 F.2d 432 (2d Cir. 1947). The single exception concerns “extraneous influences” that may have improperly influenced the verdict. “Extraneous influence” has been construed to cover publicity received and discussed in the jury room, consideration by the jury of evidence not admitted in court, and communications or other contact between jurors and third persons, including contacts with the trial judge outside the presence of defendant and his counsel. By contrast, evidence of discussions among jurors, intimidation or harassment of one juror by another, and other intra-jury influences on the verdict is within the rule, rather than the exception, and is not competent to impeach a verdict. United States v. Wilson, 534 F.2d 375, 378-79 (D.C.Cir.1976) (quoting Government of the Virgin Islands v. Gereau, 523 F.2d 140, 149-50 (3d Cir. 1975), cert. denied, 424 U.S. 917, 96 S.Ct. 1119, 47 L.Ed.2d 323 (1976)). When confronted with allegations of irregularity in the jury’s proceedings, the trial judge has broad discretion “to determine what manner of hearing, if any, is warranted.” United States v. Wilson, 534 F.2d at 379; see United States v. Parker, 549 F.2d 998, 1000 (5th Cir. 1977). The reasons for the distinction between “extraneous” and “intra-jury” influences on the verdict are self-evident. Outside pressures may distort the jury’s deliberation to the point that its verdict results in injustice. In contrast, the give-and-take within this microcosm of the community leads to a verdict that is often the only way our legal system can define what it means by “justice.” Inevitably," }, { "docid": "3740662", "title": "", "text": "to the jury’s consideration of the guilt or innocence of the defendant.” Government of the Virgin Islands v. Gereau, 523 F.2d 140 (3d Cir. 1975), cert. denied, 424 U.S. 917, 96 S.Ct. 1119, 47 L.Ed.2d 323 (1976), quoting United States v. Burke, 496 F.2d 373, 377 (5th Cir. 1974). Compare United States v. Blair, 444 F.Supp. 1273 (D.D.C.1978) (hearing held and new trial granted where juror notified court that other juror stated, in course of deliberations on narcotics charges, that she knew defendant and knew that he used drugs). The purpose of the provisions in Rule 606(b) governing inquiry into jury deliberations, like that of the deliberate-concealment rule governing inquiry into jurors’ responses on voir dire, is to preserve the integrity of jury deliberations by confining claims of error to events or conditions that are “improperly brought to the jury’s attention” and involve a calculated, intentional attempt to affect their outcome. See generally 3 J. Weinstein & M. Berger, Weinstein’s Evidence f 606[03] (1981). As the present case well illustrates, the rule which generally prevents jurors from impeaching their verdicts is necessary in order to prevent “tampering with individual jurors subsequent to the verdict,” Mattox v. United States, 146 U.S. at 148, 13 S.Ct. at 52, and to sustain that “[pjublic policy [which] forbids that a matter resting in the personal consciousness [much less subconsciousness] of one juror should be received to overthrow the verdict.” Id. “[A] change in the rule ‘would open the door to the most pernicious arts and tampering with jurors.’ ‘The practice would be replete with dangerous consequences.’ ‘It would lead to the grossest fraud and abuse’ and ‘no verdict would be safe.’ Cluggage v. Swan, 4 Binn. 155; Straker v. Graham, 4 M. & W. 721.” McDonald v. Pless, 238 U.S. at 268, 35 S.Ct. at 784. These policies clearly remain compelling notwithstanding Brooks’ assertion of the claim that the “expanding frontiers” of psychology have revealed new potential for proving the occurrence of prejudice, for the law precludes even the introduction of a juror’s testimony or affidavit admitting to consciously prejudiced internal thought processes. See," }, { "docid": "1850242", "title": "", "text": "However, a juror may testify to extraneous information or improper influence in the jury room. Scogin v. Century Fitness, Inc., 780 F.2d 1316, 1318 (8th Cir.1985); Fed.R.Evid. 606(b). Krall concedes the jurors’ fear of I.R.S. retaliation does not fall within the “outside influence” exception of Rule 606(b), but argues that it qualifies as “extraneous prejudicial information” which should have been considered by the district court. Several examples of extraneous influence were cataloged by the Third Circuit in Government of Virgin Islands v. Gereau, 523 F.2d 140 (3d Cir.1975), cert. denied, 424 U.S. 917, 96 S.Ct. 1119, 47 L.Ed.2d 323 (1976), including publicity and extra-record evidence reaching the jury room, and communication or contacts between jurors and litigants, the court, or other third parties. Such objective events or incidents have been distinguished from juror testimony regarding possible subjective prejudices or improper motives of individual jurors, which numerous courts and commentators have held to be within the rule rather than the exception of 606(b). Martinez v. Food City, Inc., 658 F.2d 369, 373 (5th Cir.1981), citing 3 Weinstein Evidence § 606[4] at 606-28 (1978), and our decisions in Smith v. Brewer, 577 F.2d 466 (8th Cir.), aff'g 444 F.Supp. 482 (S.D.Iowa), cert. denied, 439 U.S. 967, 99 S.Ct. 457, 58 L.Ed.2d 426 (1978); and Poches v. J.J. Newberry, 549 F.2d 1166 (8th Cir.1977). The affidavit of the juror in this case does not, fall within the exception for objective events or incidents. A juror’s fear of I.R.S. retaliation necessarily goes to the juror’s own mental process. The verdict of a jury may not be impeached by evidence of the thought processes and undisclosed subjective prejudices of individual jurors who concurred in the verdict. United States v. Eagle, 539 F.2d at 1169-71. The proper time to discover this type of influence is when the jury is selected and peremptory challenges are available to the attorney. See United States v. Duzac, 622 F.2d 911, 913 (5th Cir.) cert. denied, 449 U.S. 1012, 101 S.Ct. 570, 66 L.Ed.2d 471 (1980); Martinez, 658 F.2d at 374. We conclude that the district court properly ruled that the" }, { "docid": "19855200", "title": "", "text": "on the affidavit of one of the jurors. The juror stated that the jury consisted entirely of white people and that it was obvious to her that several members were prejudiced against the petitioner because he was black. She stated specifically: 4. That although the issue of identification was argued vigorously, particularly the fact that the witnesses could not identify a photo of the defendant, the jury foreman told everybody that it didn’t matter because “You can’t tell one black from another. They all look alike”. 5. That another juror said that we should take the word of two white victims as opposed to this black defendant. See Affidavit of Esther Gaglia, attached to Petitioner’s Amended Petition for a Writ of Habeas Corpus. As noted above, petitioner’s motion for a hearing was denied by the trial judge and affirmed by the Appellate Division. It is stated generally that a juror may not impeach his or her own verdict once the jury has been discharged. McDonald v. Pless, 238 U.S. 264, 35 S.Ct. 783, 59 L.Ed. 1300 (1915). This rule promotes inter alia the public policies of discouraging the harassment of jurors by losing parties, of maintaining verdict finality, and of encouraging open discussion among jurors. United States v. Dioguardi, 492 F.2d 70 (2d Cir.), cert. denied, 419 U.S. 873, 95 S.Ct. 134, 42 L.Ed.2d 112 (1974); Miller v. United States, 403 F.2d 77 (2d Cir. 1967). Other public policies conflict with this rule, however. The integrity of the judicial system depends on the guarantee that every litigant receive a fair trial. The concomitant policy of “redressing the injury of the private litigant,” where a verdict was reached by a jury which was not impartial in an individual case, requires an accommodation of the conflicting policies. Government of the Virgin Islands v. Gereau, 523 F.2d 140, 148-49 (3d Cir. 1975) (quoting McDonald, supra, at 267, 35 S.Ct. at 784). This accommodation is embodied now in Rule 606(b) of the Federal Rules of Evidence. That rule provides: Upon an inquiry into the validity of a verdict or indictment, a juror may not" }, { "docid": "18375043", "title": "", "text": "their knowledge from some other source: such as from person having seen the transaction through a window, or by some other means.” The rule formulated in Vaise has also been adopted by the courts of this country. McDonald v. Pless, 238 U.S. 264, 35 S.Ct. 783, 59 L.Ed. 1300 (1915). It is no longer so rigidly applied, however, as it once was. United States v. Grieco, 261 F.2d 414 (2d Cir. 1958), cert. denied, 359 U.S. 907, 79 S.Ct. 582, 3 L.Ed.2d 572 (1959). Today, reception of a juror’s statement as evidence is prohibited only where it is offered “to show matters which essentially inhere in the verdict itself.” Government of the Virgin Islands v. Gereau, 523 F.2d 140 (3d Cir. 1975), cert. denied, 424 U.S. 917 (1976). A juror may testify, however, “to any facts bearing upon the question of the existence of any extraneous influence, although not as to how far that influence operated upon his mind.” Mattox v. United States, 146 U.S. 140, 149 (1892). This modern formulation of the rule and of its exception has been codified in Rule 606 of the Federal Rules of Evidence. The cases clearly establish that evidence of discussions among jurors and intimidation or harassment of one juror by another, are among those matters which “inhere in the verdict itself” and are therefore inappropriate for judicial inquiry. Government of the Virgin Islands v. Gereau, 523 F.2d 140, 150 (3d Cir. 1975), cert. denied, 424 U.S. 917, 96 S.Ct. 1119, 47 L.Ed.2d 323 (1976). Yet it is precisely these matters that form the basis for defendants’ request for a hearing. Defendants attempt to circumvent application of the rule by arguing that a hearing is necessary to determine whether what Mrs. Melnick wished to say falls within the prohibition of Rule 606. Defendants’ approach is clearly improper. Before defendants are entitled to a hearing they must produce evidence of misconduct which is not barred by the rule of juror incompetency. United States v. Eagle, 539 F.2d 1166 (8th Cir. 1976), cert. denied, 429 U.S. 1110, 97 S.Ct. 1146, 51 L.Ed.2d 563 (1977). They" }, { "docid": "2730603", "title": "", "text": "-U.S.-, 103 S.Ct. 3087, 77 L.Ed.2d 1348 (1983). Nor is our position altered by the fact that different counsel are chosen to represent the parties on appeal. Trial counsel’s actions in this respect are binding on the client and appellate counsel as well. See United States v. Provenzano, 620 F.2d 985, 997 (3d Cir.1980), cert, denied, 449 U.S. 899, 101 S.Ct. 267, 66 L.Ed.2d 129 (1981) (noting “longstanding rule that counsel’s intentional tactical decisions at trial bind his client.”). Moreover, there is not the slightest indication in this record that the interview with Juror No. 9 in any way influenced the verdict. The conversations between the judge and juror focused on the juror’s reluctance to continue and the conduct of the deliberations by the foreman. The juror’s willingness to remain was established by the voir dire. The foreman’s role in the deliberative process was covered fully in the supplemental instructions given by the trial judge before the jury resumed its deliberations after disposition of Juror No. 9’s complaint. These instructions were carefully and exhaustively reviewed with counsel and in final form were approved by all defense lawyers. We reject as well the defendants’ contention that there should be a post-trial interrogation of the jurors about what they may have been told by Juror No. 9. In these circumstances, that would constitute an unwarranted intrusion into the jury deliberations. See Fed.R.Evid. 606(b) (“a jur- or may not testify as to any matter or statement occurring during the course of the jury’s deliberations”); Sullivan v. Fogg, 613 F.2d 465 (2d Cir.1980); King v. United States, 576 F.2d 432 (2d Cir.), cert, denied, 439 U.S. 850, 99 S.Ct. 155, 58 L.Ed.2d 154 (1978); United States v. Eagle, 539 F.2d 1166 (8th Cir.1976), cert, denied, 429 U.S. 1110, 97 S.Ct. 1146, 51 L.Ed.2d 563 (1977); Government of Virgin Islands v. Gereau, 523 F.2d 140 (3d Cir.1975), cert, denied, 424 U.S. 917, 96 S.Ct. 1119, 47 L.Ed.2d 323 (1976). In sum, we find no reversible error in the trial court’s disposition of the issues with respect to Juror No. 9. B Two days after the" }, { "docid": "18375042", "title": "", "text": "and interference with the jury function by the trial judge. Responses by individual jurors are unpredictable, and a dialogue, once begun, is often difficult to stop before it causes damage. United States v. Lee, 532 F.2d 911, 915 (3d Cir.), cert. denied, 429 U.S. 838, 97 S.Ct. 109, 50 L.Ed.2d 105 (1976). Because questioning of jurors may easily intrude into the deliberative process and invite charges of coercion, United States v. Sexton, 456 F.2d 961 (5th Cir. 1972), such questioning should be avoided unless there is strong evidence of impropriety. Just as pre-verdict inquiries of jurors should be avoided whenever possible, so should post-verdict inquiries. The rule against the impeachment of verdicts was formulated almost 200 years ago in Vaise v. Delaval, 99 Eng.Rep. 944 (1785). In Vaise, it was alleged that the verdict should be set aside because the jury tossed a coin to decide which party prevailed. An affidavit, submitted by one of the jurors describing the impropriety, was refused by Lord Mansfield who noted: “[I]n every such case the court must derive their knowledge from some other source: such as from person having seen the transaction through a window, or by some other means.” The rule formulated in Vaise has also been adopted by the courts of this country. McDonald v. Pless, 238 U.S. 264, 35 S.Ct. 783, 59 L.Ed. 1300 (1915). It is no longer so rigidly applied, however, as it once was. United States v. Grieco, 261 F.2d 414 (2d Cir. 1958), cert. denied, 359 U.S. 907, 79 S.Ct. 582, 3 L.Ed.2d 572 (1959). Today, reception of a juror’s statement as evidence is prohibited only where it is offered “to show matters which essentially inhere in the verdict itself.” Government of the Virgin Islands v. Gereau, 523 F.2d 140 (3d Cir. 1975), cert. denied, 424 U.S. 917 (1976). A juror may testify, however, “to any facts bearing upon the question of the existence of any extraneous influence, although not as to how far that influence operated upon his mind.” Mattox v. United States, 146 U.S. 140, 149 (1892). This modern formulation of the rule and" }, { "docid": "1850241", "title": "", "text": "the district court abused its discretion in excluding the Anderson indictment. Finally, Krall contends the district court abused its discretion in refusing to receive in evidence, in considering the motion for new trial, an affidavit of a juror. After the verdict was returned, Krall offered the affidavit of one of the jurors who stated that she believed Krall was innocent but voted for conviction, fearing an I.R.S. investigation if she did not. The district court ruled the affidavit inadmissible under Fed.R. Evid. 606(b) and denied Krall’s motion for a new trial. To overturn a verdict on proof of jury misconduct, Krall must (1) produce evidence which is not barred by the rule of juror incompetency and (2) produce evidence sufficient to prove grounds recognized as adequate to overturn the verdict. United States v. Eagle, 539 F.2d at 1166, 1169-70 (8th Cir.1976), cert. denied, 429 U.S. 1110, 97 S.Ct. 1146, 51 L.Ed.2d 563 (1977). Krall argues that this evidence of jury misconduct is competent. Rule 606(b) generally prohibits a juror from impeaching his or her verdict. However, a juror may testify to extraneous information or improper influence in the jury room. Scogin v. Century Fitness, Inc., 780 F.2d 1316, 1318 (8th Cir.1985); Fed.R.Evid. 606(b). Krall concedes the jurors’ fear of I.R.S. retaliation does not fall within the “outside influence” exception of Rule 606(b), but argues that it qualifies as “extraneous prejudicial information” which should have been considered by the district court. Several examples of extraneous influence were cataloged by the Third Circuit in Government of Virgin Islands v. Gereau, 523 F.2d 140 (3d Cir.1975), cert. denied, 424 U.S. 917, 96 S.Ct. 1119, 47 L.Ed.2d 323 (1976), including publicity and extra-record evidence reaching the jury room, and communication or contacts between jurors and litigants, the court, or other third parties. Such objective events or incidents have been distinguished from juror testimony regarding possible subjective prejudices or improper motives of individual jurors, which numerous courts and commentators have held to be within the rule rather than the exception of 606(b). Martinez v. Food City, Inc., 658 F.2d 369, 373 (5th Cir.1981), citing 3" }, { "docid": "1514342", "title": "", "text": "support for concluding that the extra-record evidence was cumulative. The district court’s determination that the unmasking was harmless error was correct. We, therefore, affirm the district court’s denial of the petition for habeas corpus. Affirmed. . Were we to reconsider Lacy I, we would have to take into account the long-standing rule limiting the scope of a juror’s testimony impeaching the verdict. A juror \"may testify to any facts bearing upon the question of the existence of any extraneous influence, although not as to how far that influence operated upon his [or her] mind.” Clyde Mattox v. United States, 146 U.S. 140, 149, 13 S.Ct. 50, 53, 36 L.Ed. 917 (1892). Public policy forbids that a matter resting in the personal consciousness of one juror should be received to overthrow the verdict, because being personal it is not accessible to other testimony; it gives to the secret thought of one the power to disturb the expressed conclusions of twelve; its tendency is to produce bad faith on the part of a minority, to induce an apparent acquiescence with the purpose of subsequent dissent; to induce tampering with individual jurors subsequent to the verdict. But as to overt acts, they are accessible to the knowledge of all the jurors; if one affirms misconduct, the remaining eleven can deny; one cannot disturb the action of the twelve; it is useless to tamper with one, for the eleven may be heard. Id. at 148-49, 13 S.Ct. at 52-53 (quoting Perry v. Bailey, 12 Kans. 539, 545). See also Rushen v. Spain, 464 U.S. 114, 121 n. 5, 104 S.Ct. 453, 457 n. 5, 78 L.Ed.2d 267 (1983) (\"a juror generally cannot testify about the mental process by which the verdict was arrived”); Government of Virgin Islands v. Gereau, 523 F.2d 140, 149 (3d Cir.1975), cert. denied, 424 U.S. 917, 96 S.Ct. 1119, 47 L.Ed.2d 323 (1976) (no evidence permitted from juror as to mental process of juror or jury or method by which the verdict is reached). This policy of limiting juror impeachment has also been incorporated into Federal Rule of Evidence 606." }, { "docid": "6261651", "title": "", "text": "cannot seriously contend otherwise. . The attorneys were instructed to carefully limit their questions in accordance with Fed.R. Evid. 606(b), which provides in part that: Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury’s deliberations or to the effect of any thing upon his or any other juror’s mind or emotions as influencing him to assent to or dissent from the verdict or concerning his mental processes in connection therewith, except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to bear upon any juror, (emphasis added). See also United States v. Greer, 620 F.2d 1383, 1385 (10th Cir. 1980); Government of Virgin Islands v. Gereau, 523 F.2d 140, 149 (3rd Cir. 1975), cert. denied, 424 U.S. 917, 96 S.Ct. 1119, 47 L.Ed.2d 323 (1976); United States v. Pinto, 486 F.Supp. 578, 579 (D.C.E.D.Pa.1980); Simon v. Kuhlman, 488 F.Supp. 59, 68 (D.C.S.D.N.Y. 1979). Rule 606(b) furnishes a major exception to the general rule that a juror may not impeach his own verdict once the jury has been discharged. McDonald v. Pless, 238 U.S. 264, 267, 35 S.Ct. 783, 784, 59 L.Ed. 1300 (1915); Domeracki v. Humble Oil & Refining Co., 443 F.2d 1245, 1247-48 (3rd Cir.), cert. denied, 404 U.S. 883, 92 S.Ct. 212, 30 L.Ed.2d 165 (1971). . Plaintiff, however, did not present any evidence indicating that Mr. Poretti intentionally set the fire. In fact, plaintiff’s counsel candidly admitted during the trial that he did not believe that the defendant “set it.” Tr. 109. And, of course, the defendant denied any involvement in an arson scheme as did the third-party defendants. . The defendant’s failure to supplement his answers to plaintiff’s interrogatories concerning access to building keys was sufficient ground to preclude new evidence during trial. . The relevant portion of her testimony is as follows: Q. How many jurors were actually involved in the burning of the cigars? A. It was just the two men. Q. Did the other jurors observe or" }, { "docid": "22437483", "title": "", "text": "jury tampering, promotes finality, and respects the institution of the jury as a fact-finding body. See McDonald v. Pless, 238 U.S. 264, 267, 35 S.Ct. 783, 784, 59 L.Ed. 1300 (1915); Government of Virgin Islands v. Gereau, 523 F.2d 140, 148 (3d Cir. 1975), cert. denied, 424 U.S. 917, 96 S.Ct. 1119, 47 L.Ed.2d 323 (1976). . Compare United States v. Renteria, 625 F.2d 1279 (5th Cir. 1980) (“If the trial judge finds that the jury had before it prejudicial material, the inquiry is complete and the conviction must be reversed.”), and Farese v. United States, 428 F.2d 178 (5th Cir. 1970), with Llewellyn v. Stynchcombe, 609 F.2d 194 (5th Cir. 1980), and United States v. McKinney, 429 F.2d 1019 (5th Cir.), modified & rev’d on rehearing, 434 F.2d 831 (5th Cir. 1970), cert. denied, 401 U.S. 922, 91 S.Ct. 910, 27 L.Ed.2d 825 (1971). To the extent Farese and Renteria may be read to state a per se test in the Fifth Circuit, a reading with which we disagree, we decline to acknowledge such a test in this circuit. . The trial judge cited United States v. Vasquez, 597 F.2d 192 (9th Cir. 1979), and applied the standard of review articulated there: [Tjhe appellant is entitled to a new trial if there existed a reasonable possibility that the extrinsic material could have affected the verdict. Id. at 193. Constitutional errors demand a strict standard of review. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). The Vasquez standard has been held equivalent to the standard announced in Chapman. Gibson v. Clanon, 633 F.2d 851, 853 (9th Cir. 1980), cert. denied, 450 U.S. 1035, 101 S.Ct. 1749, 68 L.Ed.2d 231 (1981). The trial court applied the correct standard when it found that the extrinsic evidence “could not have possibly tainted the verdict.” . As we stated in United States v. Nelson, 419 F.2d 1237, 1245 (9th Cir. 1969): Juries constantly convict, and the convictions are duly affirmed, on evidence upon which none would hesitate to act but which cannot be said to exclude as a matter" } ]

[ { "docid": "22109305", "title": "", "text": "& Klesner’s shop were deceived by employees, being led to believe that it was Sammons’. Meanwhile, Klesner had become the sole owner of the business. Such were the findings of the Commission. The Court of Appeals concluded that there was no showing either that Klesner was attempting to dispose of his goods under the pretense that they were the goods of Sammons, or that he was attempting to deceive or entice any of Sammons’ customers; that the evidence introduced to show deception went no further than that some of the public may have purchased from Klesner under a mistaken belief that they were dealing with Sammons; that the words “ Shade Shop ” were being used by Klesner always in connection with the words Hooper & Klesner; and that the term “ Shade Shop ” as used by Klesner merely indicated that his store was a place where window shades were made and sold. The Court of Appeals ruled that these words, being descriptive of a trade or business, were incapable of exclusive appropriation as a legal trademark or trade name; and that there was nothing in the facts to justify the charge of unfair competition. It, therefore, dismissed the suit on the merits,]the ground of decision being that there was a lack of those facts which, in a court of law or of equity,- are essential to the granting of relief for alleged acts of unfair competition. We need not decide whether the Court of Appeals was justified in all of its assumptions of fact or in its conclusions on matters of law. For we are of opinion that the decree should be affirmed on a preliminary ground which made it unnecessary for that court to enquire into the merits. Section 5 of the Federal Trade Commission Act does not provide private persons with an administrative remedy for private wrongs. The formal complaint is brought in the Commission’s name; the prosecution is wholly that of the Government; and it bears the entire expense of the prosecution. A person who deems himself aggrieved by the use of an unfair method" } ]

[ { "docid": "6016196", "title": "", "text": "“That ‘ideas, wishes, orders, and intelligence’ are ‘subjects’ of the interstate commerce in which telegraph companies engage has also been held.” While reversing the decision of the Second Circuit Court of Appeals in that case, 141 F.2d 400, on the ground that telegrams taken as documents were not “shipped” across a state line, the Court held that telegraphic messages are clearly subjects of commerce and hence “goods” under the Act. The later Bozant decision of the Second Circuit Court of Appeals, supra, where the Lenroot opinion of the Supreme Court was considered is certainly not in conflict, as is claimed, with the doctrine that persons regularly in the business of interstate communication are engaged in interstate commerce. The Circuit Court of Appeals had originally so stated in its own opinion in Lenroot. And this is settled law but it is not the question with which we are faced. Another group of cases stressed by the appellant and the Administrator is typified by International Text-Book Co. v. Pigg, 21,7 U.S. 91, 30 S.Ct. 481, 54 L.Ed. 678, 27 L.R.A.,N.S., 493, 18 Ann.Cas. 1103, where a foreign corporation was engaged in teaching by correspondence. It had an agent in Kansas securing scholars and receiving and forwarding money from them. The Supreme Court decided that such communications related to the corporation’s regular business and therefore that it was engaged in interstate commerce. So too a mining company which produced gold and silver ores reducing them to bullion which was transported by mail to another state and sold to the United States Mint was held to be “engaged in the production of goods for commerce.” Fox v. Summit King Mines, 9 Cir., 143 F.2d 926, 928. Decisions such as Edwards v. People of State of California, 314 U.S. 160, 62 S.Ct. 164, 86 L.Ed. 119, and Caminette v. United States, 242 U.S. 470, 37 S.Ct. 192, 61 L.Ed. 442, L.R.A.1917F, 502, Ann. Cas.1917B, 1168, stating the principle that transportation of persons between the states is interstate commerce have no relevancy to our query. Nor have cases like Walling v. Mutual Wholesale Food & Supply" }, { "docid": "8587257", "title": "", "text": "the gold was being shipped “pursuant to governmental directions” ; but this is also true of the general business of mail-order merchants, where the mails are merely used as an instrumentality of commerce. See International Textbook Co. v. Pigg, 217 U.S. 91, 30 S.Ct. 481, 54 L.Ed. 678, 27 L.R.A.,N.S., 493, 18 Ann.Cas. 1103; N. L. R. B. v. Carroll, 1 Cir., 120 F.2d 457; Thompson v. Daugherty, D. C., 40 F.Supp. 279; Fleming v. Gregory, D. C., 36 F.Supp. 776. Thus, the Post Office, in transporting the gold to the United States Mint in Pennsylvania, was not the agent of the Mint, and the gold did not become the property of the Government until it had arrived at the Mint in Pennsylvania, was duly receipted for, inspected and paid for by United States Treasury check. We therefore feel that the business conducted by Haile constituted interstate commerce within the Act and was not a mere administrative act of the Government., The court below also erroneously stated that Haile “must send its gold where the Government directs”. As we have already seen, however, Section 3 of the Gold Reserve Act expressly provides for the sale of gold, under certain circumstances, to persons for industrial, professional and artistic use. See, also, 31 Code Fed.Reg. § 54.21. Indeed, the very license issued to Haile in the instant case stipulated that Haile could produce gold “for furnishing to, or processing for, persons authorized under the regulations issued 0 under the Gold Reserve Act of 1934 to acquire and hold such gold * * * or for offering it for sale to the United States”. As a further reason for denying the injunction, Judge Wyche stated that the Act could not apply to Haile because there was no competitive market for gold in interstate commerce and therefore its local production could not have any effect on interstate commerce. The decision of the Supreme Court in United States v. Darby, 312 U.S. 100, 61 S.Ct. 451, 85 L.Ed. 609, 132 A.L.R. 1430, however, would seem to refute this limited theory, which would restrict the Congressional" }, { "docid": "11960655", "title": "", "text": "assigned why one should be ranged before the other. The advertisement here in question is susceptible to the construction that it contains two ideas ; one, that it means simply an addition of six percent to the cash price of the car, charged for an extension of credit and the other, that it means ordinary interest at the rate of 6% on deferred installment payments. Either idea is so obscure that one blends into the other. The uncertainty of terms and commixture of ideas expressed by petitioner in its advertisement had the tendency to mislead. General Motors Corp., et al. v. Federal Trade Commission, 2 Cir., 114 F.2d 33. Petitioner’s contention that the present proceedings were not in the interest of the public must be rejected. The Federal Trade Commission Act was intended to afford a preventative remedy, not a compensatory one, so that the suggestion no damage has been shown by the offense complained of to a purchaser of petitioner’s cars or a competitor is no defense to the proceeding. National Harness Manufacturers Association v. Federal Trade Commission, 6 Cir., 268 F. 705. The primary Consideration in carrying out the purpose of the present Act is the promotion and continuance of free enterprise and competition in interstate commerce. Installment credit in varying forms is widely used in this country in the purchase of many types of property and especially affects the manufacturers of automobiles. No one can deny it is in the public interest in the sale bn credit of such devices to prevent the use of methods which have a tendency and capacity to mislead the purchasing public and to unfairly damage the manufacturer’s present or potential competitors and that such practices may be restrained. In determining whether a proceeding is in the public interest, the Commission exercises a broad discretion (Federal Trade Commission v. Klesner, 280 U.S. 19, 28, 50 S.Ct. 1, 74 L.Ed. 138, 68 A.L.R. 838) and each case must be determined upon its own facts. Federal Trade Commission v. Beech-Nut Company, 257 U.S. 441, 453, 42 S.Ct. 150, 66 L.Ed. 307, 19 A.L.R. 882." }, { "docid": "6833550", "title": "", "text": "nature of this case. The theory seems to be that the acts set forth constitute a conspiracy in restraint of trade and commerce among the several states, as forbidden by section 2 of the Sherman Anti-Trust Act (Comp. St. § 8821), and give a cause of action under section 7 of said act (section 8829), which provides as follows: “Any person who shall be injured in his business or property by any other person or corporation by reason of anything forbidden or declared to Be unlawful by this act, may sue therefor in any Circuit Court of the United States in the district in which the defendant resides or is found, without respect to the amóunt in controversy, and shall recover threefold the damages by him sustained, and the costs of suit, including a reasonable attorney’s fee.” [ 1 ] It may be conceded that the circulation of newspapers throughout the country is interstate commerce. Blumenstock Bros. Advertising Agency v. Curtis Publishing Co., 252 U. S. 436, 40 Sup. Ct. 385, 64 L. Ed. 649; International Text-Book Co. v. Pigg, 217 U. S. 91, 30 Sup. Ct. 481, 54 L. Ed. 678, 27 L. R. A. (N. S.) 493, 18 Ann. Cas. 1103. In the oft-quoted and great case of Gibbons v. Ogden, 9 Wheat. 1, 189 (6 L. Ed. 23), Chief Justice Marshall said: “Commerce, undoubtedly, is traffic, but it is something more — it is intercourse.” This court has said in Butler Bros. Shoe Co. v. United States Rubber Co., 156 Fed. 17, 84 C. C. A. 183: “Importation into one state from another is the indispensable element, the test, of interstate commerce, and every negotiation, contract, trade, and dealing between citizens of different states, which contemplates and causes such importation, whether it be of goods, persons, or information, is a transaction of interstate commerce.” The fact, however, that the transportation of newspapers from one state to another constitutes interstate commerce, and that plaintiff here alleges that some of the papers published by him were transported in interstate commerce, is not sufficient on which to predicate his cause" }, { "docid": "16947078", "title": "", "text": "financed the sale and purchase of goods to and from other states. In General Motors Corporation v. Federal Trade Commission, 2 Cir., 114 F.2d 33, 36, certiorari denied 312 U.S. 682, 61 S.Ct. 550, 85 L.Ed. 1120, the court held that when financing activities wholly within a state are part of a unified plan of selling and financing commodities to a different state, such activities may be interstate commerce. The banks sent checks to other states for collection, and acted as agencies for the collection of checks from out of state. In Noble State Bank v. Haskell, 219 U.S. 104, 111, 31 S.Ct. 186, 188, 55 L.Ed. 112, 32 L.R.A.,N.S., 1062, Ann.Cas.1912A, 487, the statement was made by Mr. Justice Holmes that one of the primary conditions of successful commerce at the present time is “the possibility of payment by checks drawn against bank deposits, to such an extent do checks replace currency in daily business.” The banks maintained an investment service for nonresidents of the state. They furnished credit information to nonresidents. The transmission of intelligence across state lines has been held to be interstate commerce. International Text Book Co. v. Pigg, 217 U.S. 91, 30 S.Ct. 481, 54 L.Ed. 678, 27 L.R.A.,N.S., 493, 18 Ann.Cas. 1103; Associated Press v. National Labor Relations Board, 301 U.S. 103, 57 S.Ct. 650, 81 L.Ed. 953. In carrying on all its transactions in other states and nations, the banks necessarily made constant use of interstate and foreign communication facilities. In Electric Bond & Share Co. v. Securities & Exchange Commission, 303 U.S. 419, 432, 433, 58 S.Ct. 678, 682, 82 L.Ed. 936, 115 A.L.R. 105, the registration provisions of the Public Utility Holding Company Act of 1935, 15 U.S.C.A. § 79 et seq., were held applicable to utility holding companies because a part of their business “involves, continuous and extensive use of the mails and instrumentalities of interstate commerce. * * * ” In Associated Press v. National Labor Relations Board, 301 U.S. 103, 57 S.Ct. 650, 654, 81 L.Ed. 953, the Supreme Court found that the Associated Press, which acted as" }, { "docid": "16947079", "title": "", "text": "of intelligence across state lines has been held to be interstate commerce. International Text Book Co. v. Pigg, 217 U.S. 91, 30 S.Ct. 481, 54 L.Ed. 678, 27 L.R.A.,N.S., 493, 18 Ann.Cas. 1103; Associated Press v. National Labor Relations Board, 301 U.S. 103, 57 S.Ct. 650, 81 L.Ed. 953. In carrying on all its transactions in other states and nations, the banks necessarily made constant use of interstate and foreign communication facilities. In Electric Bond & Share Co. v. Securities & Exchange Commission, 303 U.S. 419, 432, 433, 58 S.Ct. 678, 682, 82 L.Ed. 936, 115 A.L.R. 105, the registration provisions of the Public Utility Holding Company Act of 1935, 15 U.S.C.A. § 79 et seq., were held applicable to utility holding companies because a part of their business “involves, continuous and extensive use of the mails and instrumentalities of interstate commerce. * * * ” In Associated Press v. National Labor Relations Board, 301 U.S. 103, 57 S.Ct. 650, 654, 81 L.Ed. 953, the Supreme Court found that the Associated Press, which acted as a clearing house of news between its respective members, did not sell news or operate for profit. It was held that the Associated Press was nevertheless engaged in interstate commerce, because its “operations involve the constant use of channels of interstate and foreign communication. They amount to commercial intercourse and such intercourse is commerce within the meaning of the Constitution. Interstate communication of a business nature, whatever the means of such communication, is interstate commerce regulable by Congress under the Constitution(Emphasis supplied.) It is clear that the banks were constantly involved in “interstate communication of a business nature.” It would seem that they are at least as squarely within the commerce clause as a non-profit association acting as an exchange for news items,' for they dealt in instrumentalities o'f commerce for profit, and in fact were themselves media for carrying on commerce. It is interesting to note that although banks were specifically exempted from the operation of the Federal Trade Comr mission Act, 15 U.S.C.A. § 41 et seq., and Congress had before it that" }, { "docid": "11949284", "title": "", "text": "of the Supreme Court the assumption by that court that the advertisements of Marmola were dangerously misleading and that a proceeding to prevent their use was in the interest of the public, must be regarded by us as it was by the Supreme Court, i. e., simply an assumption for the purposes of its decision. We must follow the Supreme Court upon the issue it decided, that of jurisdiction, unless the evidence in this case presents a radically different situation as to petitioner’s competitors. W'e are bound to resolve the question of jurisdiction preliminarily to any consideration on the merits. In considering jurisdiction the Supreme Court stated that there are three distinct prerequisites for a cease and desist order, namely, (1) that the methods complained of are unfair; (2) that they are methods of competition in commerce; and (3) that a proceeding by the Commission to prevent a use of the methods appears to be in the interest of the public. In order to simplify its consideration of the second prerequisite, the court, as we have noted, assumed the existence of the first and third. As to the second, it said: “Thus the Commission is called upon first to determine, as a necessary prerequisite to the issue of a complaint, whether there is reason to believe that a given person, partnership, or corporation has been or is using any unfair method of competition in commerce; and, that being determined in the affirmative, the Commission still may not proceed, unless it further appear that a proceeding would be to the interest of the public, and that such interest is specific and substantial. Federal Trade Commission v. Klesner, 280 U.S. 19, 28, 50 S.Ct. 1, 74 L.Ed. 138, 68 A.L.R. 838. Unfair trade methods are not per se unfair methods of competition.” It continued that the word “competition” imported the existence of present or potential, substantial competition and that the unfair methods must be such as unjustly affected or tend to affect the business of these competitors; that: “While it is impossible from the terms of the act itself, and in the" }, { "docid": "4241713", "title": "", "text": "ROSE, District Judge. In these cases the Federal Trade Commission seeks a mandamus to compel the respondents, each a corporation, the first two of Maryland and the last of Delaware, and each of them engaged in foreign and interstate as well as intrastate trade in grain, to permit the petitioner’s agents to examine, inspect, and cop3f respondents’ hooks of account, records, documents, correspondence, and paper writings relating to or bearing upon their business in interstate commerce, and all letters and telegrams passing between the respondents and the latter’s jobber customers throughout the United States, during the calendar year 1921. The petitions say that the commission on its own motion, determined to gather and compile information concerning, and to investigate from time to time the organization, business, conduct, practice, and management of, the respondents, and to investigate and determine the facts of the relation of each of them to other corporations, individuals, associations, and partnerships. The petitions further represent that the commission is also acting in compliance with resolution No. 133 of the Senate of the United States, passed December 22, 1921, directing it to investigate the margins between farm and export prices; the freight and other costs of handling; the profits or losses of the prim cipal exporting firms and corporations and their subsidiary or allied companies and firms; all the facts concerning market manipulations, if any, in connection with large export transactions or otherwise; the organization, ownership, control, interrelationship, foreign subsidiaries, agents, or connections of the concerns engaged in the export of grain, including the extent of their control of the facilities used by them; the organization, methods of operation and agents used by farm buyers of grain in this country; and other data affecting the demand for a foreign disposition movement and use of American exported grain— and report its findings and recommendations thereon as promptly as the various phases of the work are concluded. In the case of Federal Trade Commission v. P. Lorillard Co., 283 Fed. 999, Judge Manton, sitting in the District Court for the Southern District of New York, has recently elaborately reviewed the" }, { "docid": "16473844", "title": "", "text": "from Duluth to New Orleans, scattered over all the country.’ In 1921 the respondent had approximately 248,487 customers. Nearly every grocer in Greater New York handles respondent’s products, and in the District of Columbia and the vicinity thereof, out of 2,000 grocers, every one of them carried National Biscuit Company’s products. Similar conditions exist in many cities of the United States. ‘Uneeda Biscuit’ Is a cracker manufactured and sold by respondent, and is the fastest selling cracker in the world.” The Loose-Wiles Biscuit Company does about 15 per cent, of the cracker and biscuit business in the United States. It is also found that the cracker and biscuit sales represent from 1 to 3 per cent, of the grocers’ total business. Error is assigned in the finding that the petitioners are engaged in interstate commerce. It is argued that the transactions affected by the order of the Commission are solely between agencies of the petitioners and retail merchants located adjacent to other branches within a state, and therefore the respondent was without jurisdiction. The petitioners admitted in the answer filed that they were engaged in interstate commerce, as charged in paragraph I of the complaint. There is some evidence that biscuits and crackers which are manufactured in one state are shipped without that state and to another within the United States in competition with other firms and corporations similarly engaged. Since this conclusion of fact has some support in the evidence, we must regard it as binding upon us. Federal Trade Commission v. Curtis Pub. Co., 260 U. S. 568, 43 Sup. Ct 210, 67 L. Ed. 408. We do not, however, regard the existence of this interstate commerce as material to the present litigation. Section 5 of the Federal Trade Commission Act (38 Stat. 717), provides that unfair methods of competition in commerce are declared unlawful and the Commission is empowered to order a person, partnership, or corporation to cease and desist from using such unfair methods in commerce. The finding of the Commission as to the facts, if sup ported by testimony, is conclusive on the review in" }, { "docid": "21829330", "title": "", "text": "it reached the mint. Appellee further contends that under the Gold Reserve Act of 1934, 31 U.S.C.A. §§ 440-446, 48 Stat. 337, and the regulations issued thereunder, gold is no longer actually an article of trade or commerce and that its production and interstate shipment cannot therefore be regarded • as an article of commerce at the date of the enactment of the Fair Labor Standards Act of 1938. Such a construction would be out of harmony with the intent of congress in giving to the field of industrial relations a remedial statute, which should be liberally construed. The Treasury Department has, by appropriate regulations, authorized the sale of refined gold by producers, under proper licenses, to certain private users throughout the country for industrial, professional and artistic purposes. We cannot agree with appellee’s construction that the Gold Reserve Act makes its products non-commercial in character. But even assuming, arguendo, that this contention was sound, it would not defeat jurisdiction in this case, since it is well settled that transmission through the mails is interstate commerce (International Textbook Co. v. Pigg, 217 U.S. 91, 30 S.Ct. 481, 54 L.Ed. 678, 27 L.R.A.,N.S., 493, 18 Ann.Cas. 1103), and that it is immaterial whether or not the transportation is commercial in character. Edwards v. People of State of California, 314 U.S. 160, 62 S.Ct. 164, 86 L.Ed. 119; Caminetti v. United States, 242 U.S. 470, 37 S.Ct. 192, 61 L.Ed. 442, L.R.A.1917F, 502, Ann.Cas.l917B, 1168. The Fair Labor Standards Act has been held applicable to goods which never came into competition with goods in other States. Atlantic Co. v. Walling, 5 Cir., 131 F.2d 518; Chapman v. Home Ice Co., 6 Cir., 136 F.2d 353. The remaining controversy in the case rests not so much upon any law involved as upon the facts. The issue is: Were the appellants suffered or permitted to work in their free time during each shift under such circumstances and in such manner as would bring this case within the provisions of the statute relied upon. The determination of the facts involves the credibility of the witnesses" }, { "docid": "4176048", "title": "", "text": "locked or crimped results in greater danger of carbon monoxide gas poisoning to the occupant of such automobile than does the use of a muffler having continuous electric-welded seams; “2. Representing, through the use of the unqualified word ‘Prevents,’ or any other unqualified word of similar import, or by any other means, that the finish on respondent’s mufflers affords permanent protection against rust or corrosion.” The petitioner challenges the order on the grounds that the proceedings are not in the public interest, and that the order is not sustained by substantial evidence. As to the question that has been raised that this proceeding is not in the public interest, the petitioner has cited Federal Trade Commission v. Klesner, 280 U.S. 19, 50 S.Ct. 1, 74 L.Ed. 138, 68 A.L.R. 838, and other cases. The Klesner case and the other cases cited by the petitioner seem to have been cases to settle only private controversies. While the case at bar may have started as a private controversy and led to the altercation between Sherman and Grawoig and was nurtured in the ill will that still continues, we think the case as presented by the Commission was more than a private controversy. The petitioner did a substantial business, competing in interstate commerce with several firms in the merchandising of an article produced by several different companies and widely used. If the petitioner’s practices were fraudulent and of a misrepresentative character, it is apparent that quite a sizable portion of the business public might be affected. Under such circumstances, we think the Commission’s finding of public interest is sustained by substantial evidence. Federal Trade Commission v. Royal Milling Co., 288 U.S. 212, 217, 53 S.Ct. 335, 77 L.Ed. 706; Dr. W. B. Caldwell, Inc., v. Federal Trade Commission, 7 Cir., 111 F.2d 889, 891; Consolidated Book Publishers, Inc., v. Federal Trade Commission, 7 Cir., 53 F.2d 942, 945. Coming to the merits of the case, we now consider Paragraph 1 of the Commission’s order. This paragraph, in effect, says that the petitioner’s representations that a muffler with a continuous electric-welded. seam is less" }, { "docid": "4572097", "title": "", "text": "which the plaintiff offered and the defendant refused to receive except upon the terms stated in the declaration. The advertising contracts did not involve any movement of goods or merchandise in interstate commerce, or any transmission of intelligence in such commerce. This case is wholly unlike International Textbook Co. v. Pigg, 217 U. S. 91, wherein there was a continuous interstate traffic in textbooks and apparatus for a course of study pursued by means of correspondence, and the movements in interstate commerce were held to bring the subject-matter within the domain of federal control, and to exempt it from the burden imposed by state legislation.” And after reviewing earlier decisions the opinion continued (p. 444): “Applying the principles of these cases, it is abundantly established that there is no ground for claiming that the transactions which are the basis of the present suit, concerning advertising in journals to be subsequently distributed in interstate commerce, are contracts which directly affect such commerce.” The business that is here alleged to have been damaged is the publication and circulation of these farm papers. That business includes the obtaining of advertising, the transportation between States of electrotypes, sent respectively to petitioner and respondents by their customers to be used in setting up advertisements, and the transportation of substantial quantities of the papers in interstate commerce. Advertising at compensatory rates is an essential element. The opinion in Blumenstock Bros. v. Curtis Publishing Co., supra, assumed that a publishing business such as that now under consideration would amount to interstate commerce. There is no ground for the contention that the evidence in this case is not sufficient to go to the jury on the question of interstate commerce. International Textbook Co. v. Pigg, 217 U. S. 91, 106-107. Pensacola Tel. Co. v. Western Union, 96 U. S. 1, 9-10. Dahnke-Walker Co. v. Bondurant, 257 U. S. 282, 290-291. Di Santo v. Pennsylvania, 273 U. S. 34, 36. Eastman Co. v. Southern Photo Co., 273 U. S. 359, 370, 374. Furst v. Brewster, 282 U. S. 493, 497. Cf. N. Y. Life Ins. Co. v. Deer Lodge" }, { "docid": "11555850", "title": "", "text": "Oil Co., of New York v. Federal Trade Commission, 273 Fed. 478, two of the same group of cases, and involving an identical state of facts, it is wholly unnecessary for this court to enter into any extended discussion of the question whether this practice of leasing tanks and pumps at a nominal rental and upon the conditions above stated, constitute “unfair method of competition in commerce.” We are in full accord with the conclusion reached by that court in the above-named cases that: “A. thing exists from its beginning, and it is not a conclusion of law from any facts here found lhat a system, which at present is keenly competitive, extremely advantageous to the public, and, in the opinion of a majority of the competent witnesses, economical, is at present unfair to any one or unfair because tending to'monopoly.” It necessarily follows that for this reason the acts complained of do not violate either the Trade Commission Act or section 3 of the Clayton Act. There is, however, in each of these cases the further question whether the business in which these petitioners are engaged is, or is not, interstate commerce. The finding by the commission that this practice constitutes unfair method of competition in commerce necessarily means commerce as defined by section 4 of the Federal Trade Commission Act (Comp. St. §’ 8836d) in this language: ‘•Commerce as used herein moans trade or commerce among the several stales and the foreign nations,”' etc. It appears that the Federal Trade Commission made one general form of findings of fact to be filed in each of the cases of this group of cases then pending before that commission. These findings may all be sustained by some evidence as to some of the \"cases in this group, but, in so far as these particular cases are concerned, some of these findings are not only not supported by any evidence whatever, but are also in direct conflict with the only evidence on that particular issue, and they are also directly contrary to the stipulations and agreement of counsel in these cases" }, { "docid": "21493205", "title": "", "text": "The one who is responsible for that diversion is a competitor and if the diversion is occasioned by a gambling apparatus which is contrary to public policy, per se, we think, unquestionably, such a method constitutes unfair trade practice as defined by the Act. We are familiar with no case where this precise question has been determined, yet there are cases where competition apparently is recognized to result from diversion. In Federal Trade Commission v. Winsted Company, 258 U.S. 483, 493, 42 S.Ct. 384, 385, 66 L.Ed. 729, it is said: “For when misbranded goods attract customers by means of the fraud which they perpetrate, trade is diverted from the producer of truthfully marked goods.” In Federal Trade Commission v. Rala-dam Co., 283 U.S. 643, 51 S.Ct. 587, 75 L.Ed. 1324, 79 A.L.R. 1191, where the or der of the Commission was reversed for failure to show competition, the court, in discussing the matter, 283 U.S. on page 653, 51 S.Ct. on page 592, 75 L.Ed. 1324, 79 A.L.R. 1191, said: “It is impossible to say whether, as a result of respondent’s advertisements, any business was diverted, or was likely to be diverted, from others engaged in like trade, * * In Federal Trade Commission v. R. F. Keppel & Bro., 291 U.S. 304, 308, 54 S.Ct. 423, 425, 78 L.Ed. 814, which we think is decisive of the case here, the court said: “Upon the record it is not open to question that the practice complained of is a method of competition in interstate commerce and that it is successful in diverting trade from competitors who do not employ it.” And again 291 U.S. on page 313, 54 S.Ct. on page 426, 78 L.Ed. 814: “A method of competition which casts upon one’s competitors the burden of the loss of business unless they will descend to a practice which they are under a powerful moral compulsion not to adopt, even though it is not criminal, was thought to involve the kind of unfairness at which the statute was aimed.” If, however, there were any merit in petitioner’s contention concerning" }, { "docid": "11107008", "title": "", "text": "89 A.L.R. 406; Fisher’s Blend Station v. Tax Commission, 56 S.Ct. 608, 80 L.Ed. 956 The business of respondent which merely is a special form or instance of interstate communication is included in the concept of interstate commerce. Transmission of intelligence across the state lines in its nature, is a form of intercourse or commerce among the states. In International Textbook Co. v. Pigg, 217 U.S. 91, at page 107, 30 S.Ct. 481, 485, 54 L.Ed. 678, 27 L.R.A.(N.S.) 493, 18 Ann.Cas. 1103, where the question was one involving the attempt by a state to require a license before allowing a foreign correspondence school to do business within the state, the court said: “If intercourse between persons in different states by means of telegraphic messages conveying intelligence or information is commerce among the States, * * * we cannot doubt that intercourse or communication between persons in different states, by means of correspondence through the mails, is commerce among the states within the meaning of the Constitution, especially where, as here, such intercourse and communication really relate to matters of regular, continuous business.” It appears clear that respondent in its business of gathering and distributing news is engaged in interstate commerce. In Stafford v. Wallace, 258 U.S. 495, 521, 42 S.Ct. 397, 403, 66 L.Ed. 735, 23 A.L.R. 229, the court said: “Whatever amounts to more or less constant practice, and threatens to obstruct or unduly to burden the freedom of interstate commerce is within the regulatory power of Congress under the commerce clause, and it is primarily for Congress to consider and decide the fact of the danger and meet it. This court will certainly not substitute its judgment for that of Congress in such a matter unless the relation of the subject to interstate commerce and its effect upon it are clearly nonexistent.” See, also, Board of Trade of City of Chicago v. Olsen, 262 U.S. 1, 37, 38, 40, 43 S.Ct. 470, 67 L.Ed. 839. Industrial disputes in an industry or business engaged in interstate commerce may, and frequently do, burden and interrupt the flow of such" }, { "docid": "6016197", "title": "", "text": "678, 27 L.R.A.,N.S., 493, 18 Ann.Cas. 1103, where a foreign corporation was engaged in teaching by correspondence. It had an agent in Kansas securing scholars and receiving and forwarding money from them. The Supreme Court decided that such communications related to the corporation’s regular business and therefore that it was engaged in interstate commerce. So too a mining company which produced gold and silver ores reducing them to bullion which was transported by mail to another state and sold to the United States Mint was held to be “engaged in the production of goods for commerce.” Fox v. Summit King Mines, 9 Cir., 143 F.2d 926, 928. Decisions such as Edwards v. People of State of California, 314 U.S. 160, 62 S.Ct. 164, 86 L.Ed. 119, and Caminette v. United States, 242 U.S. 470, 37 S.Ct. 192, 61 L.Ed. 442, L.R.A.1917F, 502, Ann. Cas.1917B, 1168, stating the principle that transportation of persons between the states is interstate commerce have no relevancy to our query. Nor have cases like Walling v. Mutual Wholesale Food & Supply Co., 8 Cir., 141 F.2d 331, where main office employees of a large interstate grocery, whose work was substantially connected with interstate shipments between the various stores were held to be within the Act. The principle of Fleming v. Jacksonville Paper Co., 5 Cir., 128 F. 2d 395, affirmed Walling v. Jacksonville Paper Co., 317 U.S. 564- 63 S.Ct. 332, 87 L.Ed. 460, that the fundamental question is the work of the individual employee is, as has been stated, conceded and followed. In that case warehouse employees regularly selling or delivering across state lines or buying and receiving across state lines were held to be in commerce whether they write the letters and keep the books or load and unload or drive the trucks. The Administrator in maintaining that the preparation and approval of the work orders is engaging in commerce greatly relies on Federal Trade Commission v. Pacific Paper Trade Ass’n. 273 U.S. 52, 47 S.Ct. 255, 71 L.Ed. 534, which deals with commerce under the Federal Trade Commission Act of 1915, 15 U.S.C.A." }, { "docid": "22921815", "title": "", "text": "BAKER, Circuit Judge. This is an original petition to review an order entered by the respondent, the Federal Trade Commission, against the petitioner, Sears, Roebuck & Co., a corporation, commanding the petitioner to desist from certain unfair methods of competition in commerce. Respondent’s order was based on its complaint, filed on February 26, 1918, on the petitioner’s answer, and on a written stipulation of facts. Procedure before the commission and also before this court on review is prescribed in section 5 of the act to create a Federal Trade Commission, approved on September 26, 1914 (38 Stat. 719, c. 311 [Comp. St. § 8836e]). Respondent’s authority over the subject-matter of its order is derived from the following provision in the same section: “Unfair methods of competition in commerce are hereby declared unlawful.” Section 4 (Comp. St. § 8836d) is a dictionary of terms used in the act. “Commerce” means interstate or foreign commerce; but the general term, “unfair methods of competition,” is nowhere defined specifically, nor is there a schedule of methods that shall be deemed unfair. In its complaint respondent averred that petitioner is engaged in interstate and foreign commerce, conducting a “mail-order” business; that petitioner for more than two years last past has practiced unfair methods of competition in commerce by false and misleading advertisements and acts, designed to injure and discredit its competitors and to deceive the general public, in the following ways: (1.) .By advertising that petitioner, because of large purchases of sugar and quick disposal of stock, is able to sell sugar at a price lower than others offering sugar for sale; (2) By advertising that petitioner is selling its sugar at a price much lower than that of its competitors and thereby imputing to its competitors the purpose of charging more than a fair price for their sugar; (3) By selling certain of its merchandise at less than cost on the condition that'the customer simultaneously purchase other merchandise at prices which give petitioner a profit on the transaction, without letting the customer know the facts ; (4) By advertising that the quality of merchandise" }, { "docid": "11107007", "title": "", "text": "separate activities. So far as he produces or manufactures a commodity, his business is purely local. So far as he sells and ships, or contracts to sell and ship, the commodity to customers in another state, he engages in interstate commerce. In re spect of the former, he is subject only to regulation by the state; in respect of the latter, to regulation only by the federal government. Utah Power Co. v. Pfost, 286 U.S. 165, 182, 52 S.Ct. 548, 76 L.Ed. 1038. Production is not commerce; but a step in preparation for commerce. Chassaniol v. Greenwood, 291 U.S. 584, 587, 54 S.Ct. 541, 78 L.Ed. 1004.” But the federal power to regulate interstate communication which constitutes interstate commerce has been established so far as the instrumentalities of interstate communication are concerned, as in the regulation of telegraph companies or broadcasting stations. Pensacola Teleg. Co. v. Western U. Teleg. Co., 96 U.S. 1, 9, 10, 24 L.Ed. 708; Federal Radio Comm. v. Nelson Bros. Co., 289 U.S. 266, 279, 53 S.Ct. 627, 77 L.Ed. 1166, 89 A.L.R. 406; Fisher’s Blend Station v. Tax Commission, 56 S.Ct. 608, 80 L.Ed. 956 The business of respondent which merely is a special form or instance of interstate communication is included in the concept of interstate commerce. Transmission of intelligence across the state lines in its nature, is a form of intercourse or commerce among the states. In International Textbook Co. v. Pigg, 217 U.S. 91, at page 107, 30 S.Ct. 481, 485, 54 L.Ed. 678, 27 L.R.A.(N.S.) 493, 18 Ann.Cas. 1103, where the question was one involving the attempt by a state to require a license before allowing a foreign correspondence school to do business within the state, the court said: “If intercourse between persons in different states by means of telegraphic messages conveying intelligence or information is commerce among the States, * * * we cannot doubt that intercourse or communication between persons in different states, by means of correspondence through the mails, is commerce among the states within the meaning of the Constitution, especially where, as here, such intercourse and communication" }, { "docid": "11960657", "title": "", "text": "When misleading advertisements attract customers by means of deception perpetrated by the advertiser, it is presumed that business is thereby unfairly diverted from a competitor, who truthfully advertises his process, method or goods. Federal Trade Commission v. Winsted Hosiery Company, supra. The advertisement in the case before us was in a concededly highly competitive field of business and its context was susceptible of attracting to petitioner the business of those who wished to finance the installment sales of automobiles at a simple 6% rate of interest. We conclude that under the circumstances of the instant case, the proceedings were in the interest of the public. Petitioner urges on us that neither the 6% plan itself, nor its advertisement, affected the sale of automobiles by the petitioner to its dealers, nor their transportation in interstate commerce, that petitioner sells only to its dealers and that by tile time its cars reach them, wherever located, petitioner has received its payment therefor and has no further interest therein. It urges that the 6% plan and its advertising relate solely to the financing of payments on time sales of cars sold by its dealers to their customers and are matters with which it is not concerned, also that sales by its dealers to its customers are purely intrastate transactions. Advertising goes hand in hand with volume of production and retail distribution. It operates to increase the demand for and availability of goods and to develop quickly consumers’ acceptance of the manufactured products. Expressed another way, it breaks down consumers’ resistance, creates consumers’ acceptance and develops consumers’ demand. The Federal Trade Commission Act was enacted under the power of Congress to regulate interstate and foreign commerce and by its express terms (Section 4, 15 U.S.C.A. § 44) deals only with such commerce. Interstate commerce includes intercourse for the purpose of trade which results in the passage of property, persons or messages from within one state to within another state. All of those things which stimulate or decrease the flow of commerce, although not directly in its stream, are essential adjuncts thereto and the Congress has" }, { "docid": "11960656", "title": "", "text": "v. Federal Trade Commission, 6 Cir., 268 F. 705. The primary Consideration in carrying out the purpose of the present Act is the promotion and continuance of free enterprise and competition in interstate commerce. Installment credit in varying forms is widely used in this country in the purchase of many types of property and especially affects the manufacturers of automobiles. No one can deny it is in the public interest in the sale bn credit of such devices to prevent the use of methods which have a tendency and capacity to mislead the purchasing public and to unfairly damage the manufacturer’s present or potential competitors and that such practices may be restrained. In determining whether a proceeding is in the public interest, the Commission exercises a broad discretion (Federal Trade Commission v. Klesner, 280 U.S. 19, 28, 50 S.Ct. 1, 74 L.Ed. 138, 68 A.L.R. 838) and each case must be determined upon its own facts. Federal Trade Commission v. Beech-Nut Company, 257 U.S. 441, 453, 42 S.Ct. 150, 66 L.Ed. 307, 19 A.L.R. 882. When misleading advertisements attract customers by means of deception perpetrated by the advertiser, it is presumed that business is thereby unfairly diverted from a competitor, who truthfully advertises his process, method or goods. Federal Trade Commission v. Winsted Hosiery Company, supra. The advertisement in the case before us was in a concededly highly competitive field of business and its context was susceptible of attracting to petitioner the business of those who wished to finance the installment sales of automobiles at a simple 6% rate of interest. We conclude that under the circumstances of the instant case, the proceedings were in the interest of the public. Petitioner urges on us that neither the 6% plan itself, nor its advertisement, affected the sale of automobiles by the petitioner to its dealers, nor their transportation in interstate commerce, that petitioner sells only to its dealers and that by tile time its cars reach them, wherever located, petitioner has received its payment therefor and has no further interest therein. It urges that the 6% plan and its advertising relate" } ]

[ { "docid": "23429748", "title": "", "text": "a crime of violence. In response, the government argues that no factual dispute existed, as the government did not challenge the PSI's description of the escape as a \"walk-away\" from a diversion center without authority, and, as such, that Gay has not shown how he was harmed by the court's refusal to conduct an evidentiary hearing. The government also asserts that, because this Court has held that courts should only look at the elements of an offense in determining whether an underlying conviction qualifies as a crime of violence for purposes of classifying a defendant as a career offender, the district court was prohibited from reviewing the underlying facts of the escape conviction. As we have stated, a district court may only inquire into the conduct surrounding a conviction if ambiguities in the judgment make the crime of violence determination impossible from the face of the judgment, and then may only examine easily produced and evaluated court documents, including the judgment of conviction, charging papers, plea agreement, presentence report, and findings of the sentencing judge. United States v. Spell 44 F.3d 936, 939 (11th Cir.1995). If no ambiguities exist, the guidelines prohibit the district court from reviewing the underlying facts of a conviction to determine whether it is a crime of violence for career offender purposes. United States v. Rucker, 171 F.3d 1359, 1362 (11th Cir.), cert denied, 528 U.S. 976, 120 S.Ct. 426, 145 L.Ed.2d 333 (1999). Gay was convicted of felony escape, in violation of O.C.G.A. § 16-10-52, which provides that a person commits the offense of escape when he or she is confined for a variety of reasons and \"intentionally escapes from lawful custody or from any lawful place of lawful confinement,\" or \"intentionally fails to return as instructed to lawful custody.\" O.C.G.A. § 16-10-52(a) (1982-2000). As this statute is not ambiguous on its face, the district court did not abuse its discretion when it declined to hold an evidentiary hearing on the underlying facts of the escape conviction. Regardless, the court and both parties agreed that the underlying facts involved a situation where Gay walked away" } ]

[ { "docid": "3494215", "title": "", "text": "a crime of violence for purposes of § 4B1.1. See United States v. Almenas, 553 F.3d 27, 33-34 (1st Cir.2009); see also United States v. Weekes, 611 F.3d 68, 72-73 (1st Cir.2010) (holding that a Massachusetts conviction for resisting arrest qualifies as a predicate conviction under the Armed Career Criminal Act, 18 U.S.C. § 924(e)). Davis’s 2006 adult conviction for resisting arrest falls squarely within the category of crimes of violence that may serve as predicate offenses for purposes of career offender status. The only item left in Davis’s criminal history which could act as a qualifier for career offender status is his 2006 adult conviction for assault and battery. Whether this conviction may serve as his second predicate offense merits careful consideration due to recent changes in our circuit precedent. To determine whether a defendant’s prior offense qualifies as a crime of violence under § 4B1.1, a sentencing court must employ a categorical approach, examining the legal definition of the crime and not the defendant’s particular conduct in committing the offense. Holloway, 630 F.3d at 256 (citing Begay v. United States, 553 U.S. 137, 141, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008)). The first step in undertaking the categorical approach is to identify the offense of conviction. Id. (citing United States v. Giggey, 589 F.3d 38, 41 (1st Cir.2009)). Where the crime of conviction covers multiple offenses, some of which are considered crimes of violence and some of which are not, a court must examine certain approved documents to determine the offense of which the defendant was actually convicted. Id. at 257 (citing Shepard v. United States, 544 U.S. 13, 26, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005)). A court may look to “the terms of the charging document, the terms of a plea agreement or transcript of colloquy between judge and defendant in which the factual basis for the plea was confirmed by the defendant, or to some comparable judicial record of this information.” Shepard, 544 U.S. at 26, 125 S.Ct. 1254. A court may not, however, rely on police reports. Id. at 21-23, 125 S.Ct. 1254. If," }, { "docid": "22826877", "title": "", "text": "507 U.S. at 732, 113 S.Ct. 1770) (internal quotation marks and alterations omitted). 1. In its Booker decision, in early 2005, the Supreme Court recognized that the Sixth Amendment is contravened when a court finds “[a]ny fact (other than a prior conviction) which,” under mandatory sentencing guidelines, “is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict.” See 543 U.S. at 244, 125 S.Ct. 738. The facts admitted by Al len in his guilty plea in the district court would normally have authorized a Guidelines sentence of no more than thirty-seven months; as a career offender, Allen received a sentence of 156 months. Because the court’s application of the career offender provision depended upon its factual findings, its decision to treat Allen as a career offender was, unless its factfinding fell within the “prior conviction exception” recognized in Booker, plainly erroneous. See United States v. Hughes, 401 F.3d 540, 547-48 (4th Cir.2005). Subsequent to Booker, in Shepard v. United States, the Court wrestled with, but did not fully delineate, the scope of the prior conviction exception. See 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005). Shepard involved an issue relating to judicial factfinding under the Armed Career Criminal Act, 18 U.S.C. § 924(e) (the “ACCA”), which mandates a sentencing enhancement if a defendant has three prior convictions for serious controlled substance offenses or violent felonies. See Shepard, 125 S.Ct. at 1257. On solely statutory grounds, the Court held that, when the prior conviction has resulted from a guilty plea, the ACCA limits the sentencing court’s factfinding authority to the “necessarily admitted elements of the generic offense,” including “the terms of the charging document, the terms of a plea agreement or transcript of colloquy between judge and defendant in which the factual basis for the plea was confirmed by the defendant, or ... some comparable judicial record of this information.” Id. at 1263. A plurality of the Justices in Shepard suggested that the Court’s ruling was informed by “[t]he rule of reading statutes to avoid serious" }, { "docid": "17087174", "title": "", "text": "of violence, justifying a sentencing enhancement under the Guidelines? To determine whether a prior state conviction constitutes a predicate crime of violence justifying an enhanced federal sentence, we generally follow the categorical approach. United States v. Seay, 553 F.3d 732, 737 (4th Cir.2009); see also Taylor v. United States, 495 U.S. 575, 600-02, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). This approach “look[s] only to the statutory definition of the state crime and the fact of conviction to determine whether the conduct criminalized by the statute, including the most innocent conduct, qualifies as a ‘crime of violence.’ ” United States v. Diaz-Ibarra, 522 F.3d 343, 348 (4th Cir.2008). In a “narrow range of cases,” however, we may apply a modified categorical approach. Taylor, 495 U.S. at 602, 110 S.Ct. 2143. The modified categorical approach permits a court to consider whether the specific conduct underlying a defendant’s prior state conviction constitutes a crime of violence by examining “the terms of the charging document, ... a plea agreement, ... [a] transcript of colloquy between judge and defendant, ... or ... some comparable judicial record” revealing the “factual basis for the plea.” Shepard v. United States, 544 U.S. 13, 26, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005). We can apply the modified categorical approach only if the prior state conviction rests on a statute that “contains divisible categories of proscribed conduct, at least one of which constitutes—by its elements—a violent felony.” United States v. Gomez, 690 F.3d 194, 199 (4th Cir.2012). The predicate state statute at issue here, California Penal Code § 422(a), includes no such “divisible categories.” Therefore, as the parties agree, we cannot apply the modified categorical approach in this case. (We note that even if § 422(a) contained “divisible categories of proscribed conduct,” Gomez, 690 F.3d at 199, we could not apply the modified categorical approach here because the record contains no charging document, plea agreement, or other document approved in Shepard, 544 U.S. at 26, 125 S.Ct. 1254.) Thus, we proceed to consider whether Torres-Miguel’s prior conviction under § 422(a) categorically constitutes a crime of violence. B. Section 422(a)," }, { "docid": "22097007", "title": "", "text": "sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.\" Blakely, 542 U.S. at 303, 124 S.Ct. at 2537. . Booker consisted of two majorities. The first concluded that the Sentencing Guidelines, as a mandatory sentencing scheme, violate the Sixth Amendment. Booker, 125 S.Ct. at 746. The second concluded that this constitutional infirmity is remedied by severing those portions of tire Sentencing Reform Act of 1984 that made the Sentencing Guidelines mandatory, as opposed to simply advisory. Id. Neither majority mentioned Almendarez-Torres. . Gibson cites Dretke v. Haley, 541 U.S. 386, 124 S.Ct. 1847, 158 L.Ed.2d 659 (2004), in which the Court intimated that the continuing validity of Almendarez-Torres is a \"difficult constitutional questionf ],\" id. at 395-96, 124 S.Ct. at 1853-54, as support for his contention that a majority of the Court now believes that Almendarez-Torres should be overruled. However, the Court specifically and purposefully \"avoided” that question. Id. . \"The term 'controlled substance offense' means an offense under federal or state law, punishable by imprisonment for a term exceeding one year, that prohibits the manufacture, import, export, distribution, or dispensing of a controlled substance (or a counterfeit substance) or the possession of a controlled substance (or a counterfeit substance) with intent to manufacture, import, export, distribute, or dispense.” U.S.S.G. § 4B1.2(b) (2003). . \"When a court considers the application of a sentencing enhancement it should generally follow a categorical approach and consider only the fact of conviction and the statutoiy definition of the prior offense.” Burge, 407 F.3d at 1187 (internal quotations omitted). . Even when permitted, this fact-finding \" 'is limited to the terms of the charging document, the terms of a plea agreement or transcript of the colloquy between judge and defendant in which the factual basis for the plea was confirmed by the defendant, or some comparable judicial record of this information.’ ” Burge, 407 F.3d at 1187 (quoting Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 1263, 161 L.Ed.2d 205 (2005)). . See also United States v. Gay, 251 F.3d" }, { "docid": "23690571", "title": "", "text": "may have imposed a different sentence had he known the guidelines were merely advisory. McKinzie’s 210-month sentence was driven by the district court’s determination that three prior state court drug convictions qualified him as a career offender under U.S.S.G; § 4B1.1. Without the career offender enhancement, McKinzie would have had an adjusted offense level of 30 and a category III criminal history for a sentencing range of 121-151 months. McKinzie argues that he cannot be considered a career offender because his state court convictions are related to his federal convictions. United States v. Garecht, 183 F.3d 671, 675 (7th Cir.1999). The district court rejected his argument and sentenced him as á career offender. Assuming that the court relied on appropriate sources in making the determination, we see no error in the district court’s conclusion that the state court convictions were unrelated to the federal convictions and qualify McKin-zie as a career offender. The caveat about the sources is important after the Supreme Court’s recent decision in Shepard v. United States, — U.S.-, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005), where the Court held that sentencing courts may not look to police reports or complaint applications to determine whether an earlier guilty plea for burglary amounted to a “generic burglary” that counts as a “violent felony” under the Armed Career Criminal Act.' See 18 U.S.C. § 924(e) (mandating a minimum 15-year sentence for anyone possessing a firearm after three prior drug offenses or violent felonies). According to the Shepard Court, later courts considering such questions are “generally limited to examining the statutory definition, charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented.” Shepard, 125 S.Ct. at 1257. The Court’s holding applies with equal force to the guidelines’ career offender provision, which increases a defendant’s offense level and corresponding sentence if the defendant, among other requirements not at issue here, has “at least two prior felony convictions of either a crime of violence or a controlled substance offense.” U.S.S.G. § 4B1.1. See also United States v. Ngo, 406" }, { "docid": "19029272", "title": "", "text": "its analysis, because the panel’s statutory interpretation was a “necessary precursor” to its decision. See Wynn, 579 F.3d at 577. We must construe the sentencing enhancement provision as requiring that all three listed state crimes involve a minor or ward. III. MODIFIED CATEGORICAL APPROACH Having settled the proper construction of the sentencing enhancement provision at issue, we next determine whether Mateen’s Gross Sexual Imposition conviction qualifies as a predicate offense. This court uses the modified categorical framework articulated in Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), and Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005), to assess whether a prior state conviction triggers a sentencing enhancement provision : First, a sentencing court may look only to the statutory definition of the prior offense, and not to the particular facts underlying that conviction, to determine whether a prior conviction qualifies for a federal sentencing enhancement. If the statutory definition embraces both qualifying and non-qualifying crimes or is otherwise ambiguous, the court, second, may look to the charging document, the terms of a plea agreement or transcript of colloquy between judge and defendant in which the factual basis for the plea was confirmed by the defendant, or to some comparable judicial record of this information to determine whether the qualifying or non-qualifying aspect of the statute was violated. United States v. Ferguson, 681 F.3d 826, 832 (6th Cir.2012) (internal quotation marks and alterations omitted). Under this inquiry, the factual basis for the conviction is relevant only insofar as it assists the court in identifying which alternative elements of the statute were violated: “The modified approach thus acts not as an exception, but instead as a tool. It retains the categorical approach’s central feature: a focus on the elements, rather than the facts, of a crime. And it preserves the categorical approach’s basic method: comparing those elements with the generic offense’s.” Descamps v. United States, — U.S. -, 133 S.Ct. 2276, 2285, 186 L.Ed.2d 438 (2013). The district court correctly applied the Taylor-Shepard framework to conclude that Mateen’s fourth-degree felony" }, { "docid": "9925652", "title": "", "text": "into buildings) which is subject to a federal sentence enhancement and non-generic burglary (burglary into other structures, e.g., boats or vehicles) which is not. Id. at 16-17, 125 S.Ct. 1254. The Supreme Court, casting its decision as adherence to the “heart” of Taylor, id. at 23, 125 S.Ct. 1254, confirmed that Taylor applied to convictions based on guilty pleas. Id. at 19, 125 S.Ct. 1254. It further held that in such cases, a court’s inquiry is limited to the terms of the charging document, the terms of a plea agreement or transcript of colloquy between judge and defendant in which the factual basis for the plea was confirmed by the defendant, or to some comparable judicial record of this information. Id. at 26, 125 S.Ct. 1254 (emphasis added). Police reports and criminal complaint applications would not do. To be sure, the rulings applied not to the Sentencing Guidelines’ definition of a crime of violence but to the Armed Career Criminal Act’s definition of burglary, but faithfulness to this Circuit’s precedents mandates application of Shepard as well as Taylor to § 4B1.2 of the Guidelines. See United States v. Foreman, 436 F.3d 638, 641 (6th Cir.2006). So since Shepard, to determine whether a prior conviction pursuant to a guilty plea constitutes a crime of violence, the sentencing court must, first, decide whether the statutory definition, by itself, supports a conclusion that the defendant was convicted of a crime of violence. If the statutory definition embraces both violent and non-violent crimes or is otherwise ambiguous, the court, second, may look to the “charging document, the terms of a plea agreement or transcript of colloquy between judge and defendant in which the factual basis for the plea was confirmed by the defendant, or to some comparable judicial record of this information” to determine whether the violent or non-violent aspect of the statute was violated. Shepard, 544 U.S. at 26, 125 S.Ct. 1254; see United States v. Galloway, 439 F.3d 320, 323 (6th Cir.2006); Foreman, 436 F.3d at 641. 2. Application of the Categorical Approach First we consider whether the statutory description of attempted" }, { "docid": "22097009", "title": "", "text": "950, 952 (11th Cir.2001) (citing United States v. Rucker, 171 F.3d 1359, 1363 (11th Cir.1999), cert. denied, 528 U.S. 976, 120 S.Ct. 426, 145 L.Ed.2d 333 (1999)) (\"If no ambiguities exist, the [Sentencing Guidelines] prohibit the district court from reviewing the underlying facts of a conviction to determine whether it is a crime of violence for career offender purposes [under U.S.S.G. § 4B1.1].\"). . See note 5, supra. . We note that enhancing Gibson’s sentence under U.S.S.G. § 4B1.1 would not be an enhancement above his statutory maximum sentence in violation of the Fifth Amendment. In United States v. Cotton, 535 U.S. 625, 632, 122 S.Ct. 1781, 1785, 152 L.Ed.2d 860 (2002), which Gibson has cited as supporting authority, the Supreme Court held that the enhancement of a sentence above the statutory maximum on the basis of facts not alleged in an indictment violates the Fifth Amendment. The statutory maximum the Court considered in Cotton was not the maximum prescribed by the Sentencing Guidelines. Rather it was the maximum sentence prescribed by 21 U.S.C. § 841(b)(1)(C). Id. at 628, 122 S.Ct. at 1783. As we show in part III.A., the maximum sentence to which Gibson is subject under the Sentencing Guidelines (life imprisonment) cannot be greater than the statutory maximum sentence imposed by his offense of conviction, 21 U.S.C. § 841(a), and 21 U.S.C. § 841(b)(1)(B). As a result, the district court could not have violated the Fifth Amendment by imposing career offender status on Gibson and enhancing his sentence accordingly. . In its Sentencing Order, the district court read the jury's verdict sheet as finding \"merely [Gibson's] conviction of a prior felony offense, with no specification as to whether the prior conviction involved drugs.\" The district court misread the jury’s verdict. As shown by the verdict sheet, the jury separately found Gibson guilty of Count I, in which the Government explicitly alleged that Gibson had \"previously been convicted of a felony drug offense.\" That the specific findings of the jury, which followed its finding of guilt on Count I, did not describe Gibson’s previous felony conviction as drug-related is" }, { "docid": "22278529", "title": "", "text": "based on a defendant’s prior conduct or crime.” Breitweiser, 357 F.3d at 1254. Under such circumstances, the district court “may look behind the judgment of conviction when it is impossible to determine from the face of the judgment or statute whether the prior crime satisfies the enhancement statute.”. Id. at 1255. The district court’s review “is limited to the terms of the charging document, the terms of a plea agreement or transcript of colloquy between judge and defendant in which the factual basis for the plea was confirmed by the defendant, or to some comparable judicial record of this information.” Shepard v. United States, — U.S. -, 125 S.Ct. 1254, 1263, 161 L.Ed.2d 205 (2005). Here, consistent with Breitweiser and Shepard, the district court looked beyond the face of the statute to the petition and judgment in order to determine that Burge was adjudicated delinquent for committing first degree burglary while carrying a firearm and, therefore, to determine that his juvenile adjudication satisfied the ACCA. B. A juvenile adjudication may be a “prior conviction” under the ACCA Burge’s juvenile adjudication required a finding of proof beyond a reasonable doubt (as well as all other constitutionally required safeguards), but did not afford him the right to a jury trial. Thus, Burge, relying on United States v. Tighe, 266 F.3d 1187 (9th Cir.2001), argues that the district court erred when it considered his prior juvenile adjudication for purposes of increasing his sentence under the ACCA. “[T]he sentencing factor at issue here — recidivism—is a traditional, if not the most traditional, basis for a sentencing court’s increasing an offender’s sentence.” Almendarez-Torres v. United States, 523 U.S. 224, 243, 118 S.Ct. 1219, 1230, 140 L.Ed.2d 350 (1998). “[T]he government need not allege in its indictment and need not prove beyond a reasonable doubt that a defendant had prior convictions for a district court to use those convictions for purposes of enhancing a sentence.” United States v. Marseille, 377 F.3d 1249, 1257 (11th Cir.2004) (citing Almendarez-Torres, 523 U.S. at 228, 118 S.Ct. at 1223). “This conclusion was left undisturbed by Apprendi Blakely [v. Washington, —" }, { "docid": "22097008", "title": "", "text": "law, punishable by imprisonment for a term exceeding one year, that prohibits the manufacture, import, export, distribution, or dispensing of a controlled substance (or a counterfeit substance) or the possession of a controlled substance (or a counterfeit substance) with intent to manufacture, import, export, distribute, or dispense.” U.S.S.G. § 4B1.2(b) (2003). . \"When a court considers the application of a sentencing enhancement it should generally follow a categorical approach and consider only the fact of conviction and the statutoiy definition of the prior offense.” Burge, 407 F.3d at 1187 (internal quotations omitted). . Even when permitted, this fact-finding \" 'is limited to the terms of the charging document, the terms of a plea agreement or transcript of the colloquy between judge and defendant in which the factual basis for the plea was confirmed by the defendant, or some comparable judicial record of this information.’ ” Burge, 407 F.3d at 1187 (quoting Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 1263, 161 L.Ed.2d 205 (2005)). . See also United States v. Gay, 251 F.3d 950, 952 (11th Cir.2001) (citing United States v. Rucker, 171 F.3d 1359, 1363 (11th Cir.1999), cert. denied, 528 U.S. 976, 120 S.Ct. 426, 145 L.Ed.2d 333 (1999)) (\"If no ambiguities exist, the [Sentencing Guidelines] prohibit the district court from reviewing the underlying facts of a conviction to determine whether it is a crime of violence for career offender purposes [under U.S.S.G. § 4B1.1].\"). . See note 5, supra. . We note that enhancing Gibson’s sentence under U.S.S.G. § 4B1.1 would not be an enhancement above his statutory maximum sentence in violation of the Fifth Amendment. In United States v. Cotton, 535 U.S. 625, 632, 122 S.Ct. 1781, 1785, 152 L.Ed.2d 860 (2002), which Gibson has cited as supporting authority, the Supreme Court held that the enhancement of a sentence above the statutory maximum on the basis of facts not alleged in an indictment violates the Fifth Amendment. The statutory maximum the Court considered in Cotton was not the maximum prescribed by the Sentencing Guidelines. Rather it was the maximum sentence prescribed by 21 U.S.C. §" }, { "docid": "6580569", "title": "", "text": "Court elaborated, the risk arises “from the possibility that an innocent person might appear while the crime is in progress.” Id. Such risk is of course high in the case of intrusion into the actual place of habitation — or an attempt at such intrusion, as in James — but obviously much lower in the case of uninhabitable sheds up to 200 yards from a generic dwelling. Thus, South Carolina second degree burglary of a dwelling does not, under the categorical approach, present the same degree of risk as generic burglary of a dwelling, and the residual clause of the Guidelines career offender definition of violent crime does not apply. IV. Looking at the Indictments The charging documents for MeFalls’ burglary convictions, moreover, do not contain enough to make the burglary conviction a crime of violence for Guidelines career offender purposes. Although a sentencing court “ ‘may generally only look to the statutory definitions of prior offenses, and not to the particular facts underlying those convictions’ to determine whether a sentence should be enhanced, ... in cases where the statutory definition is ambiguous, a court [is permitted to] ‘go beyond the mere fact of conviction’ and examine the charging papers or jury instructions to determine whether the convicting jury necessarily found all the requisite elements of an offense that would qualify for a federal sentencing enhancement.” United States v. Armstead, 467 F.3d 943, 947 (6th Cir.2006) (quoting Taylor, 495 U.S. at 600, 602, 110 S.Ct. 2143). A sentencing court in that situation may examine “the terms of the charging document, the terms of a plea agreement or transcript of colloquy between judge and defendant in which the factual basis for the plea was confirmed by the defendant, or to some comparable record of judicial information.” Shepard v. United States, 544 U.S. 13, 26, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005). The question in cases of guilty pleas is whether “the court documents establish that the defendant ‘necessarily admitted’ the elements of a predicate offense through his plea.” United States v. Medina-Almaguer, 559 F.3d 420, 422 (6th Cir.2009). The Government argues" }, { "docid": "22278528", "title": "", "text": "that he was adjudicated delinquent for violating Ala.Code § 13A-7-5; rather, Burge argues that the juvenile adjudication cannot be considered because the statute can be violated in one of three ways, and if the court only considers the statute and the fact of adjudication, it is unclear whether he committed the offense while carrying a firearm. The district court’s consideration of the petition and judgment to resolve the ambiguity was not error. When a court considers the application of a sentencing enhancement it should generally follow a “categorical approach” and “consider only the fact of conviction and the statutory definition of the prior offense.” United States v. Breitweiser, 357 F.3d 1249, 1254 (11th Cir.2004) (quotation and citation omitted); accord Taylor v. United States, 495 U.S. 575, 602, 110 S.Ct. 2143, 2160, 109 L.Ed.2d 607 (1990) (holding that 18 U.S.C. § 924(e) “generally requires the trial court to look only to the fact of conviction and the statutory definition of the prior offense”). The district court may, however, “look beyond the conviction when sentence enhancements are based on a defendant’s prior conduct or crime.” Breitweiser, 357 F.3d at 1254. Under such circumstances, the district court “may look behind the judgment of conviction when it is impossible to determine from the face of the judgment or statute whether the prior crime satisfies the enhancement statute.”. Id. at 1255. The district court’s review “is limited to the terms of the charging document, the terms of a plea agreement or transcript of colloquy between judge and defendant in which the factual basis for the plea was confirmed by the defendant, or to some comparable judicial record of this information.” Shepard v. United States, — U.S. -, 125 S.Ct. 1254, 1263, 161 L.Ed.2d 205 (2005). Here, consistent with Breitweiser and Shepard, the district court looked beyond the face of the statute to the petition and judgment in order to determine that Burge was adjudicated delinquent for committing first degree burglary while carrying a firearm and, therefore, to determine that his juvenile adjudication satisfied the ACCA. B. A juvenile adjudication may be a “prior conviction” under" }, { "docid": "22059630", "title": "", "text": "than a jury verdict will support a sentence enhancement only if the record confirms that the plea “ ‘necessarily’ rested on the fact identifying the [offense] as generic.” Shepard v. United States, 544 U.S. 13, 21, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005) (quoting Taylor, 495 U.S. at 602, 110 S.Ct. 2143). In making this determination, “any enquiry beyond statute and charging document must be narrowly restricted to implement the object of the statute and avoid evidentiary disputes.” Id. at 23 n. 4, 125 S.Ct. 1254. Accordingly, in considering whether Vidal’s 1994 guilty plea “necessarily admitted, and supported a conviction for, generic [theft],” our review is “limited to examining the statutory definition, charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which [Vidal] assented.” Id. at 16, 125 S.Ct. 1254. We may not “ ‘look beyond the record of conviction itself to the particular facts underlying the conviction.’ ” Fernandez-Ruiz v. Gonzales, 468 F.3d 1159, 1164 (9th Cir.2006) (quoting Tokatly v. Ashcroft, 371 F.3d 613, 620 (9th Cir.2004)); see also Lara-Chacon v. Ashcroft, 345 F.3d 1148, 1154 (9th Cir.2003) (same). Consistent with Shepard, we applied the modified categorical approach in Smith and concluded that the defendant’s plea of nolo contendere to first degree burglary qualified as a violent felony within the meaning of U.S.S.G. § 4B1.2(1). See 390 F.3d at 666. Relying on the transcript of the plea colloquy, during which Smith admitted, through counsel, to having unlawfully entered an inhabited dwelling, we agreed with the district court that the “record clearly established the elements of generic burglary.” Id. at 664; see also id. at 665-66 (summarizing the record and concluding that it established the factual elements of generic burglary). Also consistent with Shepard, we held in United States v. Snellenberger, 493 F.3d 1015 (9th Cir.2007), that the defendant’s plea of nolo contendere to burglary did not necessarily establish his conviction as a crime of violence when the record did not contain “ ‘the terms of a plea agreement or transcript of a colloquy between the judge and defendant in" }, { "docid": "11896770", "title": "", "text": "U.S. 575, 601, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), and extended to plea-based convictions in Shepard v. United States, 544 U.S. 13, 26, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005), for determining whether a pri- or conviction constitutes a “violent felony” under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(2), has been applied by this court to the parallel determination of whether a prior conviction constitutes a “crime of violence” under USSG § 4B1.2(a). See, e.g., United States v. Arnold, 58 F.3d 1117, 1121 (6th Cir.1995); United States v. Foreman, 436 F.3d 638, 641 (6th Cir.2006). Under this categorical approach, the court must look only to the fact of conviction and the statutory definition — not the facts underlying the offense — to determine whether that definition supports a conclusion that the conviction was for a crime of violence. United States v. Armstead, 467 F.3d 943, 947 (6th Cir.2006) (discussing Taylor and Shepard). “One of the policies animating the Court’s adoption of this approach was to avoid ‘the practical difficulties and potential unfairness’ of permitting a sentencing court to relitigate the facts and delve into the details of a prior conviction.” Id. (quoting Taylor, 495 U.S. at 601, 110 S.Ct. 2143). Taylor recognized a “narrow exception” when the statutory definition is ambiguous, under which the court may examine the charging papers or jury instructions to determine whether the convicting jury necessarily found all the requisite elements of an offense that would qualify as a “violent felony” under the ACCA. Id. at 947. In addressing plea-based convictions in Shepard, the Court limited examination under this exception to “the terms of the charging document, the terms of a plea agreement or transcript of colloquy between judge and defendant in which the factual basis for the plea was confirmed by the defendant, or to some comparable judicial record of this information.” Shepard, 544 U.S. at 26, 125 S.Ct. 1254. In doing so, the Court specifically rejected the government’s call to permit consideration of police reports and criminal complaint applications to support a finding that the guilty plea could only have" }, { "docid": "3055675", "title": "", "text": "title and imprisoned not less than fifteen years, and, notwithstanding any other provision of law, the court shall not suspend the sentence of, or grant a probationary sentence to, such person with respect to the conviction under section 922(g).” 18 U.S.C. § 924(e)(1). Congress then defined “violent felony” to mean “any crime punishable by imprisonment for a term exceeding one year ... that ... 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). In determining whether a conviction counts as a violent felony for purposes of the ACCA, the Supreme Court has stated that “the language of § 924(e) generally supports the inference 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.” Taylor v. United States, 495 U.S. 575, 600, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). Thus, in most cases, the question is whether the conviction in question falls within a category determined to contain violent felonies, and beyond that “we are forbidden from conducting a ‘broad factual inquiry’ into the circumstances surrounding a prior conviction.” United States v. Bailey, 510 F.3d 562, 565 (6th Cir.2007) (applying career-offender enhancement of § 4B1.1). Although much of the time, “ ‘only the fact of the prior conviction and the statutory definition of the predicate offense are used to determine whether a prior conviction is a [qualifying] offense,’ ” there are situations where we can look beyond the statutory definition. United States v. Montanez, 442 F.3d 485, 489 (6th Cir.2006) (citation omitted) (applying career-offender enhancement of § 4B1.1). “If ... the categorical approach fails to be determinative, a sentencing court may look to the ‘charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented....’ ” Id. (quoting Shepard v. United States, 544 U.S. 13, 15, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005)). Because the categorical approach" }, { "docid": "8988148", "title": "", "text": "Cir.2003). “To constitute clear error, we must be convinced that the sentencing court’s finding is simply not plausible or permissible in light of the entire record on appeal, remembering that we are not free to substitute our judgment for that of the district judge.” Id. We will not find clear error unless “our review of the entire record leaves us with the definite and firm conclusion that a mistake has been made.” United States v. Ary, 518 F.3d 775, 787 (10th Cir.2008). The district court had before it the following documentary evidence supporting the enhancement: (1) the affidavit of Officer Christopher Cruser (the Cruser affidavit); (2) Officer Cruser’s narrative remarks in a police report describing the events surrounding Defendant’s arrest; and (3) a Bureau of Alcohol, Tobacco and Firearms Report of Investigation (the ATF report). Defendant contends these documents could not be considered for purposes of enhancing his sentence after Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005). In Shepard, the Supreme Court held that the “charging document,” the “terms of a plea agreement,” the “transcript of colloquy between judge and defendant,” or “some comparable judicial record,” is the permissible universe of evidence a court may consider in determining whether a guilty plea establishes a predicate offense for a sentencing enhancement under the Armed Career Criminal Act (ACCA). Id. at 26, 125 S.Ct. 1254; see also United States v. Romero-Hernandez, 505 F.3d 1082, 1085-86 (10th Cir.2007) (explaining application of Shepard’s “modified categorical approach” to sentencing enhancements). Although Shepard may have some application to enhancements outside the ACCA where the Guidelines require a conviction as a predicate to a sentencing enhancement, we have never applied such a stringent requirement to warrant a sentencing enhancement that merely requires certain conduct. See, e.g., United States v. Zuniga-Soto, 527 F.3d 1110, 1119-20 (10th Cir. 2008) (discussing Shepard in the context of determining whether a past conviction amounts to a “crime of violence” for purposes of U.S.S.G. § 2L1.2). Here, § 2K2.1(b)(6) only requires certain conduct to warrant an enhancement. See U.S.S.G. § 2K2.1(b)(6) (“If the defendant used or" }, { "docid": "7001275", "title": "", "text": "crime of violence as defined by U.S.S.G. § 4B1.2(a), and that he is entitled to resentencing under United States v. Booker, — U.S. -, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). We have jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291 and affirm. I. DISCUSSION A. Crime of Violence “Whether a statute defines a ‘crime of violence’ for the purposes of U.S.S.G. § 4B1.2 is a question of statutory construction, which we review de novo.” United States v. Vigil, 334 F.3d 1215, 1218 (10th Cir.2003). “In determining whether a prior offense qualifies as a crime of violence, we are limited to examining the statutory elements of the crime, but if ambiguity exists under the statute we can look beyond the statute.... ” United States v. Zamora, 222 F.3d 756, 764 (10th Cir.2000) (internal citations and quotation marks omitted). The Supreme Court recently clarified the types of documents the court may consult, limiting them to “the terms of the charging document, the terms of a plea agreement or transcript of a colloquy between the judge and defendant in which the factual basis for the plea was confirmed by the defendant, or to some comparable judicial record of this information.” Shepard v. United States, — U.S. -, 125 S.Ct. 1254, 1263, 161 L.Ed.2d 205 (2005). See United States v. Moore, No. 04-8091, 420 F.3d 1218, 1219, 2005 WL 2083039, at *1 (D.Colo. Aug. 30, 2005) (applying Shepard standard to USSG § 4B1.2). The applicable sentencing guideline calls for a base offense level of 20 if the felon in possession of a firearm has at least one prior felony conviction for a crime of violence. U.S.S.G. § 2K2.1(a)(4). Application Note 1 for § 2K2.1 refers to § 4B1.2 and its accompanying commentary to define crime of violence. Under § 4B1.2 (a) The term “crime of violence” means any offense under federal or state law, 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, or (2) is a burglary of" }, { "docid": "22096982", "title": "", "text": "on his belief that his prior burglary conviction was not a “crime of violence” under U.S.S.G. § 4B1.1(a). Id. at 938. The judgement of conviction against Spell was ambiguous as to whether he was convicted of burglary of a dwelling (a crime of violence under U.S.S.G. § 4B1.2(1)(ii)) or burglary of a structure (not a crime of violence). Id. at 939. The district court was therefore unable to determine whether Spell’s prior conviction qualified him as a career offender, and relied instead on the charging document. Id. The district court concluded that Spell’s conviction was for the burglary of a dwelling, designated him a career offender, and enhanced his sentence. Id. On appeal, Spell argued that the district court was required to use a “categorical approach” when determining whether his prior conviction satisfied U.S.S.G. § 4B1.1, whereby the court could look no further than the judgment of conviction. We held that the ambiguity in Spell’s judgment of conviction warranted the district court’s reliance on the charging document. Id. at 939. We expressly and narrowly limited the circumstances under which a district court would be permitted to look outside of the judgment of conviction: “[A] district court only may inquire into the conduct surrounding a conviction if ambiguities in the judgment make the crime of violence determination impossible from the face of the judgment itself.” Id.; see also Burge, 407 F.3d at 1187 (“The district court may ... ‘look beyond the conviction when sentence enhancements are based on a defendant’s prior conduct or crime.’ Under such circumstances, the district court ‘may look behind the judgment of conviction when it is impossible to determine from the face of the judgment or statute whether the prior crime satisfies the enhancement statute.’ ”) (quoting United States v. Breitweiser, 357 F.3d 1249, 1254-55 (11th Cir.2004)). Here, Gibson argues that ambiguities may exist which, under Spell, would have required the district court to inquire into the circumstances surrounding his pri- or convictions. Such inquiry, Gibson contends, would have violated his Sixth Amendment rights as set forth in Blakely. Gibson misapprehends our holding in Spell. That case" }, { "docid": "22775822", "title": "", "text": "States v. Kinter, 285 F.3d 192, 199-202 (4th Cir.2000). Before imposing Collins’s sentence, the judge made two post-verdict factual findings that potentially violate Booker. First, as discussed supra, the judge found Collins to be a career criminal based on his prior convictions and applied the § 4B1.1 enhancement to him. This enhancement increased Collins’s Guidelines offense level from a twenty to a thirty-two. J.A. 481. The Apprendi line of cases carves out an exception for enhancements based on the fact of a prior conviction. See Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) (“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.”); Booker, 125 S.Ct. at 756 (same, citing Apprendi); United States v. Hughes, 401 F.3d 540, 546 (4th Cir.2005)(same, citing Apprendi and Booker). However, in light of Shepard v. United States, — U.S.-, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005), and United States v. Washington, 404 F.3d 834 (4th Cir.2005), we must determine whether the judge’s application of the career offender enhancement to Collins falls within the Apprendi “fact of a prior conviction” exception or whether it potentially violates the Sixth Amendment under Booker. In Shepard v. United States, the Supreme Court held that a sentencing court cannot look beyond the charging document, the terms of a plea agreement, the plea colloquy, the statutory definition, or any explicit finding of the trial judge to which the defendant assented to determine a disputed fact about a prior conviction. See Shepard, 125 S.Ct. at 1263 (stating that the sentencing judge’s finding about the disputed fact of whether the defendant’s prior conviction was for generic burglary is “too far removed from the conclusive significance of a prior judicial record” to fall within the Apprendi exception for prior convictions). This holding prompted us to consider in United States v. Washington whether the Sixth Amendment is violated when a district judge makes findings of fact regarding the circumstances of a defendant’s prior" }, { "docid": "953071", "title": "", "text": "state or local law that has as an element the use, attempted use, or threatened use of physical force against the person of another. U.S.S.G. § 2L1.2 cmt. n. l(B)(iii) (emphasis added). When a defendant contests whether a prior conviction is a crime of violence, the sentencing court is generally required to follow the “categorical approach” as adopted in Taylor v. United States, 495 U.S. 575, 600, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). United States v. Perez-Vargas, 414 F.3d 1282, 1284 (10th Cir.2005). The categorical approach requires the sentencing court to look “only to the statutory definitions of the prior of fenses, and not to the particular facts underlying those convictions.” Id. (quotation omitted). But when an examination of the statute reveals that the statute “reaches a broad range of conduct, some of which merits an enhancement and some of which does not, courts resolve the resulting ambiguity by consulting reliable judicial records.” United States v. Martinez-Hernandez, 422 F.3d 1084, 1086 (10th Cir.2005). At this stage, the analysis is referred to as the “modified categorical approach.” See Gonzales v. Duenas-Alvarez, — U.S. —, 127 S.Ct. 815, 819, 166 L.Ed.2d 683 (2007); Batrez Gradiz v. Gonzales, 490 F.3d 1206, 1211 (10th Cir.2007). In applying the modified categorical approach, the court is limited to examining “the terms of the charging document, the terms of a plea agreement or transcript of colloquy between judge and defendant in which the factual basis for the plea was confirmed by the defendant, or to some comparable judicial record of this information.” Shepard v. United States, 544 U.S. 13, 26, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005). The court may also rely on any admissions the defendant has made regarding the facts of the prior conviction. Perez-Vargas, 414 F.3d at 1285. Ultimately, the purpose of this analysis is to avoid “collateral trials.” Shepard, 544 U.S. at 23, 125 S.Ct. 1254. Following the categorical approach here, we look first to the language of the statute to determine whether Mr. Romero-Hernandez was convicted of a crime of violence. Because we conclude that the particular section of the Colorado" } ]

[ { "docid": "1137048", "title": "", "text": "(1st Dist.1977). Where a court has jurisdiction of the subject matter and of the person of the Defendant and renders a judgment not in excess of the jurisdictional power of the court, no judgment it may render within the issues is void, however erroneous it may be. Id. 368 N.E.2d at 262. Here, the Plaintiff did not appeal the state court finding and valid order of August 25, 1982, or directly attack the same in that court based on false testimony. Thus, the Plaintiff cannot now collaterally attack that courts findings as to the validity, amount or extent of the Defendant’s liability even though erroneous. As stated in Federated Department Stores v. Moitie, 452 U.S. 394, 398, 101 S.Ct. 2424, 2428, 69 L.Ed.2d 103 (1981), the res judicata or collateral estoppel “consequences of a final unappealed judgment on the merits [are not] altered by the fact that the judgment may have been wrong.” However, while the state court judgment shall have preclusive effect in this court as to the nature and amount of the debt, even if clearly erroneous, this court will still have concurrent jurisdiction to determine whether it is nondischargeable under § 523(a)(5) since the state court clearly never decided that issue. The issue before this Court is thus whether under Federal Bankruptcy Law the $4,000.00 money judgment is nondischargeable in the Defendant’s Chapter 7 bankruptcy proceeding, not based on fraudulent evidence given by the Debtor in the state court pursuant to § 523(a)(2)(A), or a fraudulent refusal to turnover the vehicle by the Debtor based on conversion under § 523(a)(6), but based on whether said money judgment was in the nature of alimony, maintenance or support pursuant to § 523(a)(5). This Court has had occasion to discuss this issue in the cases of In re Rollins, Case No. 83-60657 (Tokash v. Rollins, Adv. No. 83-6164) (Bankr.N.D.Ind., J. Lindquist, unpub. opin. February 6, 1987); In re Helping, Case No. 83-40459 (Miller v. Helping, Adv. No. 84-4001) (Bankr.N.D.Ind., J. Lindquist, unpub. opin., March 27, 1986); In re Sells, Case No. 83-61680 (Sells v. Sells, Adv. No. 84-6011) (Bankr.N.D.Ind., J." } ]

[ { "docid": "10183301", "title": "", "text": "therefore reverse the decisions of the bankruptcy and district courts on that issue and render judgment in favor of the limited partners in the amount of $1,904,204.40. REVERSED and RENDERED. . The underlying bankruptcy proceeding, filed on November 23, 1988, by Archie Bennett, Jr., bears Case No. 388-37142 RCM-7. The adversary proceeding is No. 389-3110. . The Appellee expressly states that he relies on the bankruptcy court’s findings of fact. Appel-lee's Brief, p. 3. With one partial exception, the Appellants agree that the bankruptcy court’s findings of fact are correct. Appellants’ Brief, p. 7. The exception, discussed below, is the Appellants' argument that the bankruptcy court erred in failing to find that the $1 million distribution by M/G to Bennett was a defalcation under 11 U.S.C. § 523(a)(4). Id. This is a mixed question of law and fact. . \"Negative pressure\" in a building occurs when more air is exhausted from the building than is made up with conditioned air. The result is that warm, humid air will be drawn into the building to equalize the pressure. . The record indicates that, prior to completion of the hotel, in November of 1980, Bennett was made aware that another Marriott hotel, the Brookhollow Marriott, which had substantially the same HVAC system design as the Greens-point Marriott, had begun to experience similar mildew problems. .See, e.g., Lewis v. Short (In re Short), 818 F.2d 693, 695-96 (9th Cir.1987) (Washington law); Ragsdale v. Haller, 780 F.2d 794, 796 (9th Cir. 1986) (California law); Longo v. McLaren (In re McLaren), 136 B.R. 705, 714 (Bankr.N.D.Ohio 1992); Gravel v. Chris J. Roy, A Law Corp. (In re Chris J. Roy), 130 B.R. 214 (Bankr.W.D.La. 1991); Beebe v. Schwenn (In re Schwenn), 126 B.R. 351 (D.Colo.1991); Getaz v. Stewart (In re Stewart), 123 B.R. 817 (Bankr.W.D.Tenn.1991); Brown v. McKay (In re McKay), 110 B.R. 764 (Bankr.W.D.Pa.1990); Susi v. Mailath (In re Mailath), 108 B.R. 290, 293-94 (Bankr. N.D.Okla.1989); In re Guy, 101 B.R. 961, 986-91 (Bankr.N.D.Ind.1988) In re Cramer, 93 B.R. 764, 767-68 (M.D.Fla.1988) Lee v. Crosswhite (In re Crosswhite), 91 B.R. 156 (Bankr.M.D.Fla.1988); Stone v." }, { "docid": "1137089", "title": "", "text": "respective incomes of the parties, or that the award of the Cadillac was made in lieu of spousal maintenance, that the Plaintiff relinquished maintenance rights in consideration for the Cadillac, or that spousal maintenance would be inadequate otherwise. Nor was there any indication in the Decree or from the evidence that the Plaintiff needed spousal maintenance at the time of the Decree based on her age, health, work skills and educational level. There are no findings of fact in the Dissolution Decree that the Plaintiff was physically or mentally incapable of supporting herself as opposed to the minor children, or that the circumstances called for rehabilitative maintenance. There were no findings of fact in the Dissolution Decree as to the financial resources of each party, including income from employment or elsewhere or their standard of living during the marriage. The award of the Cadillac was simply a part of the division of the marital assets and no more. It is therefore, ORDERED, ADJUDGED, AND DECREED, that the $4,000.00 debt as set out in the Dissolution Decree, as modified, is not nondischargeable as support under § 523(a)(5) and is generally dischargeable in the Debtor’s bankruptcy pursuant to § 727. The Clerk shall enter this judgment upon a separate document pursuant to Bankr.R. 9021. . This Order constitutes the Court's Findings of Fact and Conclusions of Law pursuant to Fed. R.Civ.P. 52 as made applicable by Bankruptcy Rule 7052. . A ^re-petition state court judgment does not have res judicata (claim preclusion) effect in a subsequent nondischargeability proceeding in the bankruptcy court arising out of the same facts under § 523(a)(2), (4) or (6) as to whether the debt is nondischargeable as the mere fact that a creditor has reduced his debt to judgment should not bar further inquiry as to the true nature of the debt. Brown v. Felsen, 442 U.S. 127, 99 S.Ct. 2205, 60 L.Ed.2d 767 (1979); In re Pelfy, Case No. 83-40107 (Coate v. Pelfy, adversary no. 83-4048 (J. Lindquist, unpub. opin. and order, Bankr.N.D.Ind., March 6, 1987). It is noted however, at footnote 10 of the Brown" }, { "docid": "16541593", "title": "", "text": "Carey Lumber Co. v. Bell, 615 F.2d 370 (5th Cir.(Tex.) 1980)(consent judgment, dicta). This Court accepts that majority position. 3. A majority of decisions rendered after Marrese have held that state court default judgments have no collateral estoppel effect To determine the collateral estoppel effect of state court default judgments, most courts, through decisions rendered after the Supreme Court’s decision in Marrese, have, in bankruptcy dischargeability proceedings, applied either the general federal rule and the principles of Brown or both. And through such application, the majority of those courts have denied collateral estoppel effect to state court default judgments. Of those courts, some found Marrese inapplicable to bankruptcy dischargeability proceedings or explicitly recognized application of the general federal rule as an exception to the full faith and credit statute. Wood v. Dealers Fin. Servs., Inc., 199 B.R. 25 (E.D.Mich.1996); Vogel v. Kalita (In re Kalita), 202 B.R. 889, 915 (Bankr.W.D.Mich.1996); Bay Area Factors v. Calvert (In re Calvert), 177 B.R. 583 (Bankr.W.D.Tenn.1995); Montgomery v. Kurtz (In re Kurtz), 170 B.R. 596 (Bankr.E.D.Mich.1994); Tulin v. Recck (In re Recck), 167 B.R. 93 (Bankr.N.D.Ohio 1994); Mitchell v. Kirby (In re Kirby), 167 B.R. 91 (Bankr.E.D.Ky.1994); K-Carpet Co. v. Palumbo (In re Palumbo), 1994 WL 127599 (Bankr.N.D.Ohio, March 24, 1994); Carmel v. Thomas (In re Thomas), 1994 WL 92413 (Bankr.N.D.Ohio, Feb.18, 1994); Nationwide Mut. Fire Ins. Co. v. Hale (In re Hale), 155 B.R. 730 (Bankr.S.D.Ohio 1993); Hamilton Bank of Upper East Tennessee v. Morrison (In re Morrison), 119 B.R. 135 (Bankr.E.D.Tenn.1990); Pizza Palace, Inc. v. Stiles (In re Stiles), 118 B.R. 81 (Bankr.W.D.Tenn.1990); Estate of Schubert v. Rudd (In re Rudd), 104 B.R. 8 (Bankr.N.D.Ind.1987)(dicta); Ferguson v. Hall (In re Hall), 95 B.R. 553 (Bankr.E.D.Tenn.1989); Wright v. McIntyre (In re Wright), 57 B.R. 961 (Bankr.N.D.Ga.1986); Shafer v. Wintrow (In re Wintrow), 57 B.R. 695 (Bankr.S.D.Ohio 1986); Clarks Delivery, Inc. v. Moultrie, 51 B.R. 368 (Bankr.W.D.Wash.1985)(dicta); see e.g, Altus Bank v. Stacey (In re Stacey), 105 B.R. 672 (Bankr.S.D.Ala.1989)(consent judgment); cf. Naemi v. Naemi (In re Naemi), 128 B.R. 273 (Bankr.S.D.Cal.1991)(to insure pro rata distribution of bankruptcy estate, as exception to section 1738," }, { "docid": "13605516", "title": "", "text": "court judgment does not have res judicata (claim preclusion) effect in a subsequent nondischargeability proceeding in the bankruptcy court arising out of the same facts under § 523(a)(2), (4), or (6) as to whether the debt is nondischargeable as the mere fact that a creditor has reduced his debt to judgment should not bar further inquiry as to the true nature of the debt. Brown v. Felsen, 442 U.S. 127, 99 S.Ct. 2205, 60 L.Ed.2d 767 (1979); In re Pelfy, Case No. 83-40107 (Coate v. Pelfy, adversary no. 83-4048 (J. Lindquist, unpub. opin. and order, Bankr.N.D.Ind., March 6, 1987)). It is noted however, at footnote 10 of the Brown v. Felsen opinion, the Supreme Court indicated that the doctrine of collateral estoppel or issue preclusion may be applicable to prior state court judgments on the issue of nondischarge-ability, in a subsequent nondischargeability proceeding in the bankruptcy court, and would bar relitigation of those issues in the bankruptcy court in a subsequent nondischargeability proceeding if in adjudicating a state law question, a state court should determine, factual issues using standards identical to § 17 of the former Bankruptcy Act in the absence of counter-veiling statutory policy. Brown v. Felsen dealt with the dischargeability of the type of debts described in sections 17(a)(2) and (4) of the predecessor Bankruptcy Act (now § 523(a)(2), and (4) of the present Bankruptcy Code). Section 17(c)(2) of the Act (as does § 523(c) of the present Code) also granted exclusive jurisdiction to bankruptcy courts to determine whether particular debts were dischargeable under sections 17(a)(2), (4) or (8) (§ 523(a)(2), (4) and (6) of the present Bankruptcy Code). As to § 523(a)(5), the state court has concurrent jurisdiction with the bankruptcy court. Brown v. Felsen does not prevent the bankruptcy court from giving res judicata (claim preclusion) or collateral estoppel (issue preclusion) effect to a state court judgment or order actually decided on the merits between the same two parties on the same issues as to the validity, extent or amount of the underlying state based claim arising out of a state court’s proper exercise of its" }, { "docid": "18493650", "title": "", "text": "the majority of courts that have specifically addressed the issue of the dischargeability of punitive damage awards have held that they may be held to be nondischargeable. See Johnson v. Miera (In re Miera), 926 F.2d 741 (8th Cir. 1991) (§ 523(a)(6)) (Affirming the district court which had reversed the bankruptcy court, 104 B.R. 150 (Bankr.D.Minn.1989), on the issue of punitive damages. The Eighth Circuit’s opinion invalidates that portion of Hoefs v. Schmidt (In re Schmidt), 36 B.R. 834 (Bankr.D.Minn.1984), which holds that punitive damages are dischargeable under § 523(a)(6) because they undermine the debtor’s fresh start. But see that portion of the Schmidt opinion that discusses § 523(a)(2)); Combs v. Richardson, 838 F.2d 112 (4th Cir.1988) (§ 523(a)(6)); Moraes v. Adams (In re Adams), 761 F.2d 1422 (9th Cir.1985) (§ 523(a)(6) & (9)); Coen v. Zick, 458 F.2d 326 (9th Cir.1972) (Bankruptcy Act § 17(a)(8)); York v. Shepherd (In re Shepherd), 56 B.R. 218 (W.D. Va.1985) (§ 523(a)(6)); Dutton v. Schwartz, 21 B.R. 1014 (D.Mont.1982) (§ 523(a)(6)); Glazer v. Alley (In re Glazer), 25 B.R. 329 (9th Cir. BAP 1982) (§ 523(a)(6)); Lock v. Scheuer (In re Scheuer), 125 B.R. 584 (Bankr.C.D.Cal.1991) (§ 523(a)(2) & (4)). Although the court held the punitive damage award to be dischargeable, it clearly held that the court, as a court of equity, may determine under a balancing test whether punitive damages may be held to be nondischargeable, disagreeing with Ellwanger v. Bette Joyce McBroom Estate (In re Ellwanger), 105 B.R. 551 (9th Cir. BAP 1989)); Roland v. Johnson (In re Johnson), 120 B.R. 461 (Bankr.N.D.Ind.1990) (§ 523(a)(6)). Relying on Diaz v. Diaz (In re Diaz), 120 B.R. 967 (Bankr.N.D.Ind.1989) (§ 523(a)(6)); Brill v. Dvorak (In re Dvorak), 118 B.R. 619 (Bankr.N.D.Ill.1990) (§ 523(a)(6)); Evans v. Dunston (In re Dunston), 117 B.R. 632 (Bankr.D.Colo.1990) (§ 523(a)(2)). Court stated that although punitive damages may be nondischargeable, the award in the case at hand was dischargeable); Miller v. Harper (In re Harper), 117 B.R. 306 (Bankr.N.D.Ohio 1990) (§ 523(a)(6)); Associated Growers, Inc. v. Horowitz (In re Horowitz), 103 B.R. 786 (Bankr.N.D.Miss.1989) (§ 523(a)(6)); Leeb v. Guy" }, { "docid": "11777816", "title": "", "text": "hereby AFFIRMED. . The underlying bankruptcy proceeding, filed on November 23, 1988, by Archie Bennett, Jr., bears Case No. 388-37142 RCM-7. The adversary proceeding is No. 389-3110. . The Appellee expressly states that he relies on the bankruptcy court’s findings of fact. Appel-lee’s Brief, p. 3. With one partial exception, the Appellants agree that the bankruptcy court’s findings of fact are correct. Appellants' Brief, p. 7. The exception, discussed below, is the Appellants’ argument that the bankruptcy court erred in failing to find that the $ 1 million distribution by M/G to Bennett was a defalcation under 11 U.S.C. § 523(a)(4). Id. This is a mixed question of law and fact. . \"Negative pressure\" in a building occurs when more air is exhausted from the building than is made up with conditioned air. The result is that warm, humid air will be drawn into the building to equalize the pressure. . The record indicates that, prior to completion of the hotel, in November of 1980, Bennett was made aware that another Marriott hotel, the Brookhollow Marriott, which had substantially the same HVAC system design as the Greens-point Marriott, had begun to experience similar mildew problems. . See, e.g., Lewis v. Short (In re Short), 818 F.2d 693, 695-96 (9th Cir.1987) (Washington law); Ragsdale v. Haller, 780 F.2d 794, 796 (9th Cir. 1986) (California law); Longo v. McLaren (In re McLaren), 136 B.R. 705, 714 (Bankr.N.D. Ohio 1992); Gravel v. Chris J. Roy, A Law Corp. (In re Chris J. Roy), 130 B.R. 214 (Bankr.W.D.La.1991); Beebe v. Schwenn (In re Schwenn), 126 B.R. 351 (D.Colo.1991); Getaz v. Stewart (In re Stewart), 123 B.R. 817 (Bankr.W.D.Tenn.1991); Braun v. McKay (In re McKay), 110 B.R. 764 (Bankr.W.D.Pa.1990); Susi v. Mailath (In re Mailath), 108 B.R. 290, 293-94 (Bankr.N.D.Okla.1989); In re Guy, 101 B.R. 961, 986-91 (Bankr.N.D.Ind.1988) In re Cramer, 93 B.R. 764, 767-68 (M.D.Fla.1988) Lee v. Crosswhite (In re Crosswhite), 91 B.R. 156 (Bankr.M.D.Fla. 1988); Stone v. Stone (In re Stone), 90 B.R. 71, 79-80 (Bankr.S.D.N.Y.), aff'd, 94 B.R. 298, 302-03 (S.D.N.Y.1988), aff'd, 880 F.2d 1318 (2nd Cir.1989); In re Dino, 82 B.R." }, { "docid": "5168035", "title": "", "text": "1292, 1295 (7th Cir.1987). Because of the requirement that the relevant issues be actually litigated, default judgments are usually not given preclusive effect. In re Martinez, 110 B.R. 353 (Bankr.N.D.Ill.1990); In re Rudd, 104 B.R. 8 (Bankr.N.D.Ind.1987) (collecting cases); In re Brink, 27 B.R. 377 (Bankr.W.D.Wis. 1983). Contra, In re Seifert, 130 B.R. 607 (Bankr.M.D.Fla.1991). In Moore’s treatise on default and consent judgments, the authors state that “... the preponderant view, and we think the better one, is that, as a general proposition, a default judgment has no collateral estoppel effect.” IB James Wm. Moore et al., Moore’s Federal Practice 110.444[2], at 798 (2d ed. 1992). “Such a judgment is not a reliable adjudication of any issue except for that case_” Id. 110.443[3], at 768. The defendant contends, in view of the state court’s default judgment, that collateral estoppel does not apply to the issues of causation and liability because those issues were never actually litigated in the circuit court. In deciding whether issue preclusion is appropriate in a particular dis-chargeability proceeding, the court must first look to state law and determine whether preclusive effect would be given to the state court judgment by the law of the state in which it was rendered. 28 U.S.C. § 1738. Allen v. McCurry, 449 U.S. 90, 96, 101 S.Ct. 411, 415, 66 L.Ed.2d 308 (1980); In re Pahule, 849 F.2d 1056 (7th Cir.1988); In re Wagner, 79 B.R. 1016 (Bankr.W.D. WI 1987); In re Bicknell, 118 B.R. 652 (S.D. IN 1990). The court must then decide whether there are any special bankruptcy considerations that would preempt state law and require a different result. Wisconsin law, like federal law, has required that “[t]he issues in the prior action asked to be invoked must have been actually litigated and necessarily determined.” Wagner, 79 B.R. at 1020; Schneider v. Mistele, 39 Wis.2d 137, 140 at n. 5, 158 N.W.2d 383, 385 at n. 5 (1968). Section 27 of the Restatement (Second) of Judgments (1980) expresses the doctrine of collateral estoppel as follows: When an issue of fact or law is actually litigated and determined by" }, { "docid": "18896021", "title": "", "text": "* * * ‘Justice ... is probably better served if the principle of collateral estoppel does not apply to unlitigated issues underlying default or consent judgments, or to issues determined by the parties unless it can be said that the parties could reasonably have foreseen the conclusive effect of their actions.’ IB J. Moore, J. Lucas & T. Currier, Moore’s Federal Practice 110.444[1], at 794 (2d ed. 1984). As stated in Kaspar Wire Works, Inc. v. Leco Eng’g & Mach., Inc., 575 F.2d 530 (5th Cir.1978), if the parties to a consent decree ‘indicated clearly the intention that the decree ... shall not only terminate the litigation of claims but, also, determine finally certain issues, then their intention should be effectuated.’ Id. at 539; see also ... 18 C. Wright, A. Miller & E. Cooper, Federal Practice & Procedure § 4443, at 382 (1981) (‘Issue preclusion does not attach unless it is clearly shown that the parties intended that the issue be foreclosed in other litigation.’). Klingman, 831 F.2d at 1295, 1296. The Klingman panel is not the only court that has not followed § 1738, for scores of opinions in bankruptcy cases have done precisely the same thing. See, e.g., In re Halpern, 810 F.2d 1061 (11th Cir.1987) (no mention of § 1738 in same setting); United States Life Title Ins. Co. v. Dohm, 19 B.R. 134, 137 (N.D.I11.1982) (stating that “a Bankruptcy Court may in its discretion decline to apply collateral estoppel” from a state-court judgment). Other cases have noted the existence of § 1738 and the Supreme Court cases construing it, but have nonetheless, without sufficient explanation, not followed the state rule of preclusion. See In re Tomsic, 104 B.R. 22, 33 (Bankr. N.D.Ind.1987) (noting that § 1738 has been ignored in bankruptcy, but then applying the “general [federal] test most frequently applied”); In re Rudd, 104 B.R. 8, 14 (Bankr.N.D.Ind.1987) (same). Still other courts in the Seventh Circuit, in decisions post-dating Klingman, have simply followed Klingman without any ac-knowledgement of § 1738. See, e.g., Cohen v. Bucci, 103 B.R. 927, 929 (N.D.I11. 1989); In re Martinez," }, { "docid": "1137049", "title": "", "text": "even if clearly erroneous, this court will still have concurrent jurisdiction to determine whether it is nondischargeable under § 523(a)(5) since the state court clearly never decided that issue. The issue before this Court is thus whether under Federal Bankruptcy Law the $4,000.00 money judgment is nondischargeable in the Defendant’s Chapter 7 bankruptcy proceeding, not based on fraudulent evidence given by the Debtor in the state court pursuant to § 523(a)(2)(A), or a fraudulent refusal to turnover the vehicle by the Debtor based on conversion under § 523(a)(6), but based on whether said money judgment was in the nature of alimony, maintenance or support pursuant to § 523(a)(5). This Court has had occasion to discuss this issue in the cases of In re Rollins, Case No. 83-60657 (Tokash v. Rollins, Adv. No. 83-6164) (Bankr.N.D.Ind., J. Lindquist, unpub. opin. February 6, 1987); In re Helping, Case No. 83-40459 (Miller v. Helping, Adv. No. 84-4001) (Bankr.N.D.Ind., J. Lindquist, unpub. opin., March 27, 1986); In re Sells, Case No. 83-61680 (Sells v. Sells, Adv. No. 84-6011) (Bankr.N.D.Ind., J. Lindquist, unpub. opin., October 1, 1986); In re Ford, Case No. 82-61211 (Ford v. Ford, Adv. No. 83-6210) (Bankr.N.D.Ind., J. Lindquist, unpub. opin. March 27, 1986). Rather than reiterate the criteria in determining whether a debt aris ing out of a dissolution decree is nondis-chargeable in bankruptcy, the Court attaches hereto as Appendix “A” its opinion in In re Rollins, supra. It is clear to this Court that, although the parties stipulated that no oral evidence need be submitted and that the Court should render its decision based on the State Court Decree and Orders, it is clear based on the record and case law applicable to § 523(a)(5), that this cannot be done. The Court may require additional proof beyond the parties stipulation where the additional proof does not contradict the stipulation, but rather adds flesh and life to it and aides in presenting an understandable controversy to the Judge. Insurance Co. of North America v. Northwestern Nat. Ins. Co., 494 F.2d 1192 (6th Cir.1974). Accordingly, a bench trial and oral evidence will be" }, { "docid": "1137090", "title": "", "text": "Decree, as modified, is not nondischargeable as support under § 523(a)(5) and is generally dischargeable in the Debtor’s bankruptcy pursuant to § 727. The Clerk shall enter this judgment upon a separate document pursuant to Bankr.R. 9021. . This Order constitutes the Court's Findings of Fact and Conclusions of Law pursuant to Fed. R.Civ.P. 52 as made applicable by Bankruptcy Rule 7052. . A ^re-petition state court judgment does not have res judicata (claim preclusion) effect in a subsequent nondischargeability proceeding in the bankruptcy court arising out of the same facts under § 523(a)(2), (4) or (6) as to whether the debt is nondischargeable as the mere fact that a creditor has reduced his debt to judgment should not bar further inquiry as to the true nature of the debt. Brown v. Felsen, 442 U.S. 127, 99 S.Ct. 2205, 60 L.Ed.2d 767 (1979); In re Pelfy, Case No. 83-40107 (Coate v. Pelfy, adversary no. 83-4048 (J. Lindquist, unpub. opin. and order, Bankr.N.D.Ind., March 6, 1987). It is noted however, at footnote 10 of the Brown v. Felsen opinion, the Supreme Court indicated that the doctrine of collateral estoppel or issue preclusion may be applicable to prior state court judgments on the issue of nondischarge-ability, in a subsequent nondischargeability proceeding in the bankruptcy court, and would bar relitigation of those issues in the bankruptcy court in a subsequent nondischargeability proceeding if in adjudicating a state law question, a state court should determine, factual issues using standards identical to § 17 of the former Bankruptcy Act in the absence of counter-veiling statutory policy. Brown v. Felsen dealt with the dischargeability of the type of debts described in sections 17(a)(2) and (4) of the predecessor Bankruptcy Act (now § 523(a)(2) and (4) of the present Bankruptcy Code). Section 17(c)(2) of the Act (as does § 523(c) of the present Code) also granted exclusive jurisdiction to bankruptcy courts to determine particular debts were dis-chargeable under sections 17(a)(2), (4) or (8) (§ 523(a)(2), (4) and (6) of the present Bankruptcy Code. As to § 523(a)(5) the state court has concurrent jurisdiction with the bankruptcy court." }, { "docid": "23600963", "title": "", "text": "judicata did not preclude the bankruptcy court from going behind a prior state court judgment to determine if a debt is nondischargeable stated in a footnote that collateral estoppel should be applied if the state court’s factual findings were based on standards identical to those used by the bankruptcy court in its dischargeability determination. The court stated: This case concerns res judicata only, and not the narrower principle of collateral estoppel. Whereas res judicata forecloses all that which might have been litigated previously, collateral estoppel treats as final only those questions actually and necessarily decided in a prior suit, [citations omitted] If, in the course of adjudicating a state-law question, a state court should determine factual issues using standards identical to those of § 17, then collateral estoppel, in the absence of countervailing statutory policy, would bar litigation of those issues in bankruptcy court. Brown, 442 U.S. at 139 n. 10, 99 S.Ct. at 2213 n. 10. A majority of the courts have adhered to' the foregoing analysis by the Supreme Court and applied collateral estoppel when the state law standards as those required to prove nondischargeability of debt under the Bankruptcy Code. See Spilman v. Harley, 656 F.2d 224, 227 (6th Cir.1981); Matter of Merrill, 594 F.2d 1064, 1067 (5th Cir.1979); Matter of Ross, 602 F.2d 604, 607-08 (3d Cir.1979); In re Shepherd, 56 B.R. 218, 219 (W.D.Va.1985); In re Bishop, 55 B.R. 687, 688-89 (Bankr.W.D.Ky.1985); In re Perrin, 55 B.R. 401, 402 (Bankr.D.N.D.1985); In re D’Annolfo, 54 B.R. 887, 888-89 (Bankr.D.Mass.1985). This Court has also held when a case is actually litigated on the merits, although the prior judgment cannot be given res judicata or claim preclusions effect, if all of the four elements of collateral estoppel or issue preclusions are present, and the non-bankruptcy court applies the same clear and convincing standard of proof, which the Bankruptcy Court must apply in the context of a nondischargeability proceeding, the findings of fact by that Court can have collateral estoppel application in any subsequent nondischargeability proceeding. See In re Tomsic, (Gellenbeck v. Tomsic, 104 B.R. 22, 29-40 (Bankr.N.D.Ind.1987).. The" }, { "docid": "16761556", "title": "", "text": "to the decree. Often in such a situation, the testimony of the non-debtor spouse as to reason for the creation of the debtor’s obligation arising out of the state court dissolution decree will provide sufficient evidence for the Court to determine the basis of the state court’s decree. See, e.g., In re Brown, 36 B.R. 103 (Bankr.D.Kan.1983); In re MacDonald, 69 B.R. 259 (Bankr.D.N.J.1986). Id. pp. 17-26. The Court would also note that its ultimate conclusion will be based on the state of affairs at the time that the Decree was entered by the State Court, and not the “present needs” of the Plaintiff or the financial wherewithal of the Defendant at the time of the trial of this Adversary Proceeding. The Bankruptcy Court has no authority to consider alleged changed circumstances of the ex-wife in determining dischargeability. Forsdick v. Turgeon, 812 F.2d 801 (2nd Cir.1987); In re Jenkins, 94 B.R. 355 (Bankr.E.D.Pa.1988); Matter of Rowles, 66 B.R. 628 (Bankr.N.D.Ohio 1986); In re Fryman, 67 B.R. 112 (Bankr.E.D.Wis.1986); In re Neely, 59 B.R. 189, 193 (Bankr.D.S.D.1986). F Is the Defendant Collaterally Estopped in this Adversary Proceeding from Litigating Whether the Attorney’s Fees are Nondischargeable as being in the Nature of Support pursuant to § 523(a)(5), when the Dissolution Decree Incorporated by Reference a Property Settlement Agreement Executed by the Defendant Expressly States that the Attorney’s Fees in Questions are “As Further Support” to Defendant’s Ex-spouse? The resolution of whether the subject attorney’s fees are nondischargeable as being in the nature of support pursuant to § 523(a)(5), also requires an examination of the doctrines of res judicata and collateral estoppel as they are applicable in nondis-chargeability proceedings. As to the preclusive effect of the State Court Decree in this Adversary Proceeding in the court is mindful of the observations made in In re Diaz, 120 B.R. 967, 972 (Bankr.N.D.Ind.1987). In this case, the court wrote: The general principles of claim preclusion and issue preclusion and their purposes should be first noted. These doctrines serve a multitude of purposes. They encourage reliance upon judicial decisions by preventing inconsistent decisions; they conserve the" }, { "docid": "13605515", "title": "", "text": "Anderson Bros. Ford, 617 F.2d 1278 (7th Cir.1980), cert. granted 449 U.S. 981, 101 S.Ct. 395, 66 L.Ed.2d 242 reversed on other grounds; Warshawsky & Co. v. Arcata National Corp., 552 F.2d 1257 (7th Cir.1977). This test is to be applied flexibly in order to further the policies of the federal rules in general and Rule 13(a) in particular. Id. \"Transactions\" within the purview of the compulsory counterclaim rule may comprehend a series of many occurrences, depending not so much on the immediateness of their connection as upon their logical relationship; and thus, a transaction is to be construed generously to avoid unnecessary expense inherent in multiplicity of litigation. Warshawsky v. Arcata Nat. Corp., 552 F.2d 1257, supra. Permissive counterclaims are governed by Fed.R.Civ.P. 13(b) as made applicable by Bankr.R. 7013. Fed.R.Civ.P. 13(b) provides as follows: (b) Permissive counterclaims. A pleading may state as a counterclaim any claim against an opposing party not arising out of the transaction or occurrence that is the subject matter of the opposing party's claim. . A pre -petition state court judgment does not have res judicata (claim preclusion) effect in a subsequent nondischargeability proceeding in the bankruptcy court arising out of the same facts under § 523(a)(2), (4), or (6) as to whether the debt is nondischargeable as the mere fact that a creditor has reduced his debt to judgment should not bar further inquiry as to the true nature of the debt. Brown v. Felsen, 442 U.S. 127, 99 S.Ct. 2205, 60 L.Ed.2d 767 (1979); In re Pelfy, Case No. 83-40107 (Coate v. Pelfy, adversary no. 83-4048 (J. Lindquist, unpub. opin. and order, Bankr.N.D.Ind., March 6, 1987)). It is noted however, at footnote 10 of the Brown v. Felsen opinion, the Supreme Court indicated that the doctrine of collateral estoppel or issue preclusion may be applicable to prior state court judgments on the issue of nondischarge-ability, in a subsequent nondischargeability proceeding in the bankruptcy court, and would bar relitigation of those issues in the bankruptcy court in a subsequent nondischargeability proceeding if in adjudicating a state law question, a state court should determine," }, { "docid": "18493651", "title": "", "text": "B.R. 329 (9th Cir. BAP 1982) (§ 523(a)(6)); Lock v. Scheuer (In re Scheuer), 125 B.R. 584 (Bankr.C.D.Cal.1991) (§ 523(a)(2) & (4)). Although the court held the punitive damage award to be dischargeable, it clearly held that the court, as a court of equity, may determine under a balancing test whether punitive damages may be held to be nondischargeable, disagreeing with Ellwanger v. Bette Joyce McBroom Estate (In re Ellwanger), 105 B.R. 551 (9th Cir. BAP 1989)); Roland v. Johnson (In re Johnson), 120 B.R. 461 (Bankr.N.D.Ind.1990) (§ 523(a)(6)). Relying on Diaz v. Diaz (In re Diaz), 120 B.R. 967 (Bankr.N.D.Ind.1989) (§ 523(a)(6)); Brill v. Dvorak (In re Dvorak), 118 B.R. 619 (Bankr.N.D.Ill.1990) (§ 523(a)(6)); Evans v. Dunston (In re Dunston), 117 B.R. 632 (Bankr.D.Colo.1990) (§ 523(a)(2)). Court stated that although punitive damages may be nondischargeable, the award in the case at hand was dischargeable); Miller v. Harper (In re Harper), 117 B.R. 306 (Bankr.N.D.Ohio 1990) (§ 523(a)(6)); Associated Growers, Inc. v. Horowitz (In re Horowitz), 103 B.R. 786 (Bankr.N.D.Miss.1989) (§ 523(a)(6)); Leeb v. Guy (In re Guy), 101 B.R. 961 (Bankr.N.D.Ind.1988) (§ 523(a)(2), (4), & (6)); Bender v. Tobman (In re Tobman), 96 B.R. 429 (Bankr.S.D.N.Y.1989), rev’d on other grounds, 107 B.R. 20 (S.D.N.Y.1989) (§ 523(a)(2)); Cook v. Barnett (In re Barnett), 95 B.R. 477 (Bankr.W.D.Ky.1988) (§ 523(a)(6)); Austin, 93 B.R. at 723 (§ 523(a)(4) & (6)); Zervas v. Nix (In re Nix), 92 B.R. 164 (Bankr.N.D.Tex.1988) (§ 523(a)(6)); Kansas Nat’l Bank & Trust Co. v. Kroh (In re Kroh), 88 B.R. 972 (Bankr.W.D.Mo.1988) (§ 523(a)(6)); Norton v. Dean (In re Dean), 79 B.R. 659 (Bankr.N.D.Tex.1987) (§ 523(a)(6)); First Colony Life Ins. Co. v. Coover (In re Coover), 70 B.R. 554 (Bankr.S.D.Fla.1987) (§ 523(a)(6)); United States Trust Co. v. Martonak (In re Martonak), 67 B.R. 727 (Bankr.S.D.N.Y.1986) (Court noted that in certain circumstances it may be appropriate to find that punitive damages are nondischargeable); Clark v. Siefke (In re Siefke), 61 B.R. 220 (Bankr.D.Mont.1986) (§ 523(a)(6)); Hardin v. Caldwell (In re Caldwell), 60 B.R. 214 (Bankr.E.D.Tenn.1986) (§ 523(a)(6)); Lisk v. Criswell (In re Criswell), 52 B.R. 184 (Bankr.E.D.Va.1985) (§" }, { "docid": "23600964", "title": "", "text": "estoppel when the state law standards as those required to prove nondischargeability of debt under the Bankruptcy Code. See Spilman v. Harley, 656 F.2d 224, 227 (6th Cir.1981); Matter of Merrill, 594 F.2d 1064, 1067 (5th Cir.1979); Matter of Ross, 602 F.2d 604, 607-08 (3d Cir.1979); In re Shepherd, 56 B.R. 218, 219 (W.D.Va.1985); In re Bishop, 55 B.R. 687, 688-89 (Bankr.W.D.Ky.1985); In re Perrin, 55 B.R. 401, 402 (Bankr.D.N.D.1985); In re D’Annolfo, 54 B.R. 887, 888-89 (Bankr.D.Mass.1985). This Court has also held when a case is actually litigated on the merits, although the prior judgment cannot be given res judicata or claim preclusions effect, if all of the four elements of collateral estoppel or issue preclusions are present, and the non-bankruptcy court applies the same clear and convincing standard of proof, which the Bankruptcy Court must apply in the context of a nondischargeability proceeding, the findings of fact by that Court can have collateral estoppel application in any subsequent nondischargeability proceeding. See In re Tomsic, (Gellenbeck v. Tomsic, 104 B.R. 22, 29-40 (Bankr.N.D.Ind.1987).. The Seventh Circuit in the recent case of Klingman v. Levinson, 831 F.2d 1292, 1295 (7th Cir.1987), held that where a state court determines factual questions using the same standards as the bankruptcy court would use, collateral estoppel should be applied to promote judicial economy by encouraging the parties to present their strongest arguments, and thus if the requirements for applying collateral estoppel have been satisfied, then the doctrine should apply to bar relitigation of an issue determined by a state court. As noted by the Klingman Court, the four requirements for collateral estoppel are 1) the issue sought to be precluded must be the same issue as that involved in the prior action, 2) the issue must have been actually litigated, 3) the determination of the issue must have been essential to the final judgment, and 4) the party against whom estoppel is invoked must be fully represented in the prior action. Klingman v. Levinson, 831 F.2d at 1295, supra. A Federal Court must apply the same issue preclusive effect to state court judgments, which" }, { "docid": "23600961", "title": "", "text": "contracts. The four contracts, all of .which were identical, established the rules that the Plaintiff investors and the Debtor-investor would follow in the venture. The Debtor had drafted the contract and used similar contracts in similar ventures on four or five other occasions. The four contracts are referred to in the stipulation of facts between the parties filed November 10, 1981 with the District Court as Exhibits 1-4 (See p. 1 of Exhibit “C” to Plaintiffs’ Motion for Summary Judgment). The contracts were not in fact attached to Exhibit “C”, and by Court Order of January 28, 1987, the Court ordered the Plaintiff to file the same. On February 11,1987, the Plaintiffs filed their response to the January 28, 1987 order and filed Exhibit “1” to Exhibit “C” and the signature pages to Exhibits “2”, “3” and “4” to Exhibit “C”. On November 27, 1985, the Plaintiffs filed their Motion for Summary Judgment pursuant to Fed.R.Civ.P. 56 on the grounds that there is no genuine issue of material fact and that the Plaintiffs are entitled to a judgment as a matter of law that the debt arising from Order and Judgment entered in the district Court is nondischargeable in the Debtor’s bankruptcy pursuant to 11 U.S.C. § 523(a)(2), (4) and (6). The Plaintiffs noted in their motion that no oral evidence or trial was necessitated by the District Court in that the parties stipulated to certain facts (Exhibit “C” to Plaintiffs’ Motion), and that the Debtor never responded to certain requests for admissions which are deemed admitted pursuant to Fed.R.Civ.P. 36 (Exhibits “D”, “E”, “F” and “G” to Plaintiffs’ motion). Nevertheless this case was submitted on the merits. However, even though the District Court judgment was not a default judgment it does not have res judicata (claims preclusion) effect in a nondischargeability adversary proceeding in this Court. Brown v. Felsen, 442 U.S. 127, 99 S.Ct. 2205, 60 L.Ed.2d 767 (1979); In re Rudd, (.Estate of David Schubert Deceased, and David Schubert v. Rudd, 104 B.R. 8, 10-22 (Bankr.N.D.Ind.1987). However, the Supreme Court in Brown v. Felsen, in ruling that res" }, { "docid": "16541594", "title": "", "text": "(In re Recck), 167 B.R. 93 (Bankr.N.D.Ohio 1994); Mitchell v. Kirby (In re Kirby), 167 B.R. 91 (Bankr.E.D.Ky.1994); K-Carpet Co. v. Palumbo (In re Palumbo), 1994 WL 127599 (Bankr.N.D.Ohio, March 24, 1994); Carmel v. Thomas (In re Thomas), 1994 WL 92413 (Bankr.N.D.Ohio, Feb.18, 1994); Nationwide Mut. Fire Ins. Co. v. Hale (In re Hale), 155 B.R. 730 (Bankr.S.D.Ohio 1993); Hamilton Bank of Upper East Tennessee v. Morrison (In re Morrison), 119 B.R. 135 (Bankr.E.D.Tenn.1990); Pizza Palace, Inc. v. Stiles (In re Stiles), 118 B.R. 81 (Bankr.W.D.Tenn.1990); Estate of Schubert v. Rudd (In re Rudd), 104 B.R. 8 (Bankr.N.D.Ind.1987)(dicta); Ferguson v. Hall (In re Hall), 95 B.R. 553 (Bankr.E.D.Tenn.1989); Wright v. McIntyre (In re Wright), 57 B.R. 961 (Bankr.N.D.Ga.1986); Shafer v. Wintrow (In re Wintrow), 57 B.R. 695 (Bankr.S.D.Ohio 1986); Clarks Delivery, Inc. v. Moultrie, 51 B.R. 368 (Bankr.W.D.Wash.1985)(dicta); see e.g, Altus Bank v. Stacey (In re Stacey), 105 B.R. 672 (Bankr.S.D.Ala.1989)(consent judgment); cf. Naemi v. Naemi (In re Naemi), 128 B.R. 273 (Bankr.S.D.Cal.1991)(to insure pro rata distribution of bankruptcy estate, as exception to section 1738, bankruptcy court refused to accord collateral estoppel effect to state court default judgment which created constructive trust on all debtor’s property); In re Comstock Fin. Servs., Inc., 111 B.R. 849 (Bankr.C.D.Cal.1990)(to insure pro rata distribution of bankruptcy estate, as exception to section 1738, bankruptcy court refused to accord collateral estoppel effect to state court default judgment which created constructive trust on all debtor’s property). Others, based on the general federal rule, have held without reference to either Marrese, state law, or the full faith and credit statute, that state court default judgments should not be accorded collateral estoppel effect. M & M Transmissions, Inc. v. Raynor (In re Raynor), 922 F.2d 1146 (4th Cir. 1991); L & R Assocs. v. Curtis, 194 B.R. 407 (E.D.Va.1996); Polechronis v. Cape Cod Needleworks, Inc. (In re Polechronis), 186 B.R. 1 (D.Mass.1995); Jones v. Indiana Fin. Co., 180 B.R. 531 (S.D.Ind.1994); Evans v. Dunston (In re Dunston), 146 B.R. 269 (D.Col.1992); Colwell v. Lucas (In re Lucas), 186 B.R. 67 (Bankr.E.D.Va.1995); Schaffer v. Dempster (In re Dempster), 182 B.R." }, { "docid": "23600962", "title": "", "text": "to a judgment as a matter of law that the debt arising from Order and Judgment entered in the district Court is nondischargeable in the Debtor’s bankruptcy pursuant to 11 U.S.C. § 523(a)(2), (4) and (6). The Plaintiffs noted in their motion that no oral evidence or trial was necessitated by the District Court in that the parties stipulated to certain facts (Exhibit “C” to Plaintiffs’ Motion), and that the Debtor never responded to certain requests for admissions which are deemed admitted pursuant to Fed.R.Civ.P. 36 (Exhibits “D”, “E”, “F” and “G” to Plaintiffs’ motion). Nevertheless this case was submitted on the merits. However, even though the District Court judgment was not a default judgment it does not have res judicata (claims preclusion) effect in a nondischargeability adversary proceeding in this Court. Brown v. Felsen, 442 U.S. 127, 99 S.Ct. 2205, 60 L.Ed.2d 767 (1979); In re Rudd, (.Estate of David Schubert Deceased, and David Schubert v. Rudd, 104 B.R. 8, 10-22 (Bankr.N.D.Ind.1987). However, the Supreme Court in Brown v. Felsen, in ruling that res judicata did not preclude the bankruptcy court from going behind a prior state court judgment to determine if a debt is nondischargeable stated in a footnote that collateral estoppel should be applied if the state court’s factual findings were based on standards identical to those used by the bankruptcy court in its dischargeability determination. The court stated: This case concerns res judicata only, and not the narrower principle of collateral estoppel. Whereas res judicata forecloses all that which might have been litigated previously, collateral estoppel treats as final only those questions actually and necessarily decided in a prior suit, [citations omitted] If, in the course of adjudicating a state-law question, a state court should determine factual issues using standards identical to those of § 17, then collateral estoppel, in the absence of countervailing statutory policy, would bar litigation of those issues in bankruptcy court. Brown, 442 U.S. at 139 n. 10, 99 S.Ct. at 2213 n. 10. A majority of the courts have adhered to' the foregoing analysis by the Supreme Court and applied collateral" }, { "docid": "18896022", "title": "", "text": "is not the only court that has not followed § 1738, for scores of opinions in bankruptcy cases have done precisely the same thing. See, e.g., In re Halpern, 810 F.2d 1061 (11th Cir.1987) (no mention of § 1738 in same setting); United States Life Title Ins. Co. v. Dohm, 19 B.R. 134, 137 (N.D.I11.1982) (stating that “a Bankruptcy Court may in its discretion decline to apply collateral estoppel” from a state-court judgment). Other cases have noted the existence of § 1738 and the Supreme Court cases construing it, but have nonetheless, without sufficient explanation, not followed the state rule of preclusion. See In re Tomsic, 104 B.R. 22, 33 (Bankr. N.D.Ind.1987) (noting that § 1738 has been ignored in bankruptcy, but then applying the “general [federal] test most frequently applied”); In re Rudd, 104 B.R. 8, 14 (Bankr.N.D.Ind.1987) (same). Still other courts in the Seventh Circuit, in decisions post-dating Klingman, have simply followed Klingman without any ac-knowledgement of § 1738. See, e.g., Cohen v. Bucci, 103 B.R. 927, 929 (N.D.I11. 1989); In re Martinez, 110 B.R. 353, 355 (Bankr.N.D.I11.1990); In re Seaton, 98 B.R. 419, 422 (Bankr.C.D.I11.1989); In re Nunez, 95 B.R. 566, 571 (Bankr.N.D.I11.1988). As noted previously, if the Klingman standard of issue preclusion applies to this case, then this appeal would be rapidly concluded. The Klingman standard requires the prior agreed judgment to clearly indicate that future issues will be precluded, and the Agreed Judgment in this case falls well short of that standard. Indeed, other than stating that it is a judgment on the Complaint, the Agreed Judgment does not recite a single underlying fact or otherwise contain specific admissions. After careful consideration, and with due respect to the Klingman panel, this Court concludes that the Klingman standard is inaccurate in this setting because it applies federal rather than state rules of preclusion and is thus in conflict with § 1738. The Court reaches this conclusion for three reasons. First, it takes no great discussion to show that the mandates of § 1738 and the Supreme Court decisions interpreting it are binding on this District Court." }, { "docid": "5168034", "title": "", "text": "two scar revisions which were performed by Dr. Robert K. Wolter. 3. That as a result of the injury and subsequent surgery, the plaintiff, Kevin Stoll, suffered great pain and suffering in the past. 4. That the plaintiff, Kevin Stoll, will need future surgery and even after the surgery, the plaintiff will still have a scar on his face the rest of his life resulting in future pain and suffering as well as embarassment [sic] to the plaintiff. 5. That there was no testimony offered by the defendant which would justify any diminution of the damages. 6. That the defendant’s conduct was outrageous, willful and wanton. Although § 523(c)(1) of the Bankruptcy Code gives the bankruptcy court exclusive jurisdiction to determine the dis-chargeability of obligations under § 523(a)(6), the doctrine of collateral estop-pel, or issue preclusion as it is otherwise known, is applicable in making such decision. Collateral estoppel can be applied to a dischargeability determination if the relevant facts were actually litigated and necessarily decided in the state litigation. Klingman v. Levinson, 831 F.2d 1292, 1295 (7th Cir.1987). Because of the requirement that the relevant issues be actually litigated, default judgments are usually not given preclusive effect. In re Martinez, 110 B.R. 353 (Bankr.N.D.Ill.1990); In re Rudd, 104 B.R. 8 (Bankr.N.D.Ind.1987) (collecting cases); In re Brink, 27 B.R. 377 (Bankr.W.D.Wis. 1983). Contra, In re Seifert, 130 B.R. 607 (Bankr.M.D.Fla.1991). In Moore’s treatise on default and consent judgments, the authors state that “... the preponderant view, and we think the better one, is that, as a general proposition, a default judgment has no collateral estoppel effect.” IB James Wm. Moore et al., Moore’s Federal Practice 110.444[2], at 798 (2d ed. 1992). “Such a judgment is not a reliable adjudication of any issue except for that case_” Id. 110.443[3], at 768. The defendant contends, in view of the state court’s default judgment, that collateral estoppel does not apply to the issues of causation and liability because those issues were never actually litigated in the circuit court. In deciding whether issue preclusion is appropriate in a particular dis-chargeability proceeding, the court must" } ]

[ { "docid": "20886558", "title": "", "text": "“is” clearly connotes the present status of the illegal aliens’ residence in this case within the United States, it can only be understood to apply expressly to actions directed towards illegal aliens already in this country. In addition, the statute applies to “any person.” Thus, appellants’ argument that IRCA was intended to apply only to employers must fall. Congress intended to give broad scope to the class of persons whose conduct is proscribed by the statute. Lastly, appellants argue that their conduct merely assisted aliens in avoiding detection of an illegal status and did not rise to the level of “encouraging] an alien to reside in the United States.” In the absence of any controlling authority, the district court turned to Black's Law Dictionary which defines “encourage” to include actions taken to embolden or make confident, and concluded that appellants’ actions permitted illegal aliens to be more confident that they could continue to reside with impunity in this country. The district court also found that by selling false citizenship papers, appellants helped those aliens to reside in this country by providing them with an opportunity to gain employment, support themselves, and avoid having to return to their native lands. “While offering them a chance to stand equally with all other American citizens, defendants encouraged them to continue to reside here.” Joint Appendix at 318. We arrive at the same conclusion on a somewhat different basis. The word “en courage” does not appear elsewhere in IRCA; hence, the statute as a whole does not assist with its definition. However, the development of the conduct proscribed by this section may be traced from the language of the predecessor statute to the language in the current law to arrive at a clear understanding of the meaning of “encourage” in § 1324(a)(1)(D). Subsection (a) of the former § 1324 stated, in pertinent part: Any person who willfully or knowingly encourages or induces, or attempts to encourage or induce, either directly or indirectly, the entry into the United States of any alien not lawfully entitled to enter or reside within the United States, shall be" } ]

[ { "docid": "11160513", "title": "", "text": "evidence suggesting that he did anything to encourage or induce the alien to reside in this country. And he maintains that encouraging or inducing an illegal alien to reside in the United States must mean something other than aiding in the transportation of an illegal alien within this country. Even viewing the evidence in the light most favorable to the government, see King, 608 F.3d at 1129, Thum’s argument is persuasive. In Lopez, we explained that each of the immigration offenses codified in 8 U.S.C. § 1324 is “discrete,” and that Congress intended each to “cover different groups of wrongdoers.” Lopez, 484 F.3d at 1190, 1197. As such, we rejected an interpretation of the statute that would elide the distinction between bringing an illegal alien into the United States, in violation of 8 U.S.C. § 1324(a)(2)(B)(ii), and transporting an illegal alien within the United States, in violation of 8 U.S.C. § 1324(a)(1)(A)(ii). Lopez, 484 F.3d at 1197. Similarly here, under the government’s and the district court’s interpretation of the statute, a defendant who transported an illegal alien within the United States would also have encouraged that alien to reside in the United States. This reading of the statute is foreclosed by Lopez, as it would render the statutory ban on transporting illegal aliens within the United States a mere subset of the prohibition on encouraging such aliens to reside in this country. The government counters that its broad reading of “encourages or induces” to “reside” is compelled by the plain language of the statute, and that Thum encouraged Varguez-Rodriguez to remain in this country by assisting in his attempt to travel north. This argument is unpersuasive. At the outset, we agree with the government, and the Seventh Circuit, that “to encourage” means “to inspire with courage, spirit, or hope ... to spur on ... to give help or patronage to.” United States v. He, 245 F.3d 954, 960 (7th Cir.2001) (quoting Merriam Webster’s Collegiate Dictionary 381 (10th ed.1996)). Indeed, we have previously equated “encouraged” with “helped.” United States v. Yoshida, 303 F.3d 1145, 1150 (9th Cir.2002). But the government’s argument" }, { "docid": "22260591", "title": "", "text": "failed to plead a violation of § 1324(a)(3)(A) and so cannot establish a predicate act that way. B. The plaintiffs have more predicate act success with their allegations that the defendants violated § 1324(a)(l)(A)(iv), the elements of which are: “(1) encouraging or inducing; (2) an alien; (3) to come to, enter, or reside in the United States; and (4) knowing or in reckless disregard that the alien’s coming to, entering, or residing in the United States is illegal.” United States v. Lopez, 590 F.3d 1238, 1250 (11th Cir.2009). The only element the defendants contend has not been sufficiently pleaded is the first one, which is that the plaintiffs “encouraged or induced” illegal aliens to reside in this country. The district court concluded the plaintiffs had not pleaded that element even though they had alleged that the defendants had knowingly supplied the aliens with jobs and with social security numbers to facilitate their employment. The court believed those alleged actions do not amount to encouragement or inducement for purposes of § 1324(a)(1)(A)(iv). See Edwards v. Prime, Inc., No. 08-1016, at 12-13 (N.D.Ala. Dec. 11, 2008). We believe the district court was mistaken. This Court has given a broad interpretation to the phrase “encouraging or inducing” in this context, construing it to include the act of “helping” aliens come to, enter, or remain in the United States. See Lopez, 590 F.3d at 1249-51; United States v. Ndiaye, 434 F.3d 1270, 1278 (11th Cir.2006); United States v. Kuku, 129 F.3d 1435, 1437 (11th Cir.1997). In Lopez we held that the district court had accurately presented the substantive law of § 1324(a)(1)(A)(iv) to the jury by informing it that the term “encourage” was defined as “to knowingly instigate, to incite to action, to give courage to, to inspirit, to embolden, to raise confidence, to help, to forward, and/or to advise.” Lopez, 590 F.3d at 1247; see also id. at 1249 (citing similar dictionary definitions of “encourage” with approval). The defendant in that case had captained a boat to the Bahamas, refueled it, spent the night, picked up aliens from a hotel, and then driven" }, { "docid": "11160516", "title": "", "text": "case, the defendant escorted three aliens onto an airplane and accompanied them from Japan to the United States. Yoshida, 303 F.3d at 1148. We affirmed the defendant’s conviction for both encouraging or inducing the aliens to enter the United States, under § 1324(a)(1)(A)(iv), and bringing those aliens to the United States, under § 1324(a)(2)(B)(ii). Id. at 1149. The government correctly observes that, under Yoshida, the same criminal conduct may violate more than one provision of § 1324 at the same time. Accordingly, if Thum had both assisted in the transportation of an illegal alien within the United States and taken steps to encourage that alien to reside here, Yoshida would permit the revocation of his supervised release under both the “encourages or induces” and the “transports within” provisions of § 1324. But, as discussed above, Thum took no steps to encourage an illegal alien to reside in this country, and nothing in Yoshida supports the proposition that the “encourages or induces” provision is violated whenever a defendant engages in conduct that may violate the “transports within” provision. Yoshida is therefore inapposite. Rather, as Thum argues, the out-of-circuit decisions in United States v. Ndiaye, 434 F.3d 1270, 1298 (11th Cir.2006), and United States v. Oloyede, 982 F.2d 133, 135-37 (4th Cir.1993) (per cu-riam), provide more useful guidance here. In Ndiaye, the Eleventh Circuit concluded that a defendant who enabled an illegal alien to work in the United States without fear of detection by supplying the alien with a Social Security number to which he was not entitled was properly convicted of encouraging the alien to reside here. Ndiaye, 434 F.3d at 1298. Similarly, in Oloyede, the Fourth Circuit concluded that the defendant encouraged illegal aliens to reside in the United States by providing them with false documents for citizenship applications. Oloyede, 982 F.2d at 137. As these cases demonstrate, a defendant “encourages” an illegal alien to “reside” in the United States when the defendant takes some action “to convince the illegal alien to ... stay in this country,” id., or to facilitate the alien’s ability to live in this country indefinitely," }, { "docid": "20455383", "title": "", "text": "violation of law; 8 U.S.C. § 1324(a)(l)(A)(iv). When done for monetary gain, this is a RICO predicate act. 18 U.S.C. § 1961(1)(F). We have held that, to make out a claim of “encouraging,” Plaintiffs must prove that Wal-Mart engaged in an “affirmative act that served as a catalyst for aliens to reside in the United States in violation of immigration law when they might not have otherwise.” DelRio-Mocci v. Connolly Properties Inc., 672 F.3d 241, 249 (3d Cir.2012); see also United States v. Henderson, No. 09-10028, 857 F.Supp.2d 191, 209-10, 2012 WL 1432552, at *17 (D.Mass. Apr. 25, 2012) (“[I]n light of the interpretation of the charging statute recently provided by the Third Circuit in DelRio-Mocci, I am satisfied there is no question that those [jury] instructions were erroneous because they were too open textured and did not require the jury to find substantiality to any encouragement or inducement.”). Plaintiffs do not allege that they would not or could not have resided in the United States without having been employed by Wal-Mart. Moreover, while the plaintiffs did make allegations against various cleaning contractors that might be sufficient to state a claim of encouraging, “the complaint fails to allege, as it must, that Wal-Mart took affirmative steps to assist Plaintiffs to enter or remain unlawfully in the United States, or that Wal-Mart agreed to undertake conduct with the purpose of unlawfully encouraging undocumented aliens.” Zavala, 393 F.Supp.2d at 308. Thus, Plaintiffs cannot show that Wal-Mart’s conduct incited aliens to remain in this country unlawfully when they otherwise might not have done so, and they therefore have not alleged that the company engaged in conduct sufficient to constitute encouraging or inducing. d) Pleading of the RICO Harboring Predicate Harboring illegal immigrants is prohibited as follows: Any person who— (iii) knowing or in reckless disregard of the fact that an alien has come to, entered, or remains in the United States in violation of law, conceals, harbors, or shields from detection, or attempts to conceal, harbor, or shield from detection, such alien in any place, including any building or any means of transportation;" }, { "docid": "14505068", "title": "", "text": "(3d Cir.2011). Among other things, many aliens are eligible for federal public housing benefits even if they live in households in which some members are aliens not lawfully present. See Alison Siskin & Maggie McCarty, Congressional Research Service, Immigration: Noncitizen Eligibility for Needs-Based Housing Programs (2008). This suggests that aliens lacking lawful immigration status are able to reside in this country with or without the assistance of the Property Managers’ alleged rental scheme. Moreover, there is no legal requirement that apartment managers screen potential tenants based on immigration status, and in some places it is actually illegal to do so. See Note, “There Be No Shelter Here”: Anti-Immigrant Housing Ordinances and Comprehensive Reform, 20 Cornell J.L. & Pub. Pol’y 399, (2010) (“California, for example [has] enact[ed] legislation barring landlords from asking tenants their legal status.... New York City also has an ordinance prohibiting landlords from questioning tenants about their legal status or discriminating against them based on alienage or citizenship.”). Thus, Bolmer cannot show that the Property Managers’ conduct incited aliens to remain in this country unlawfully when they otherwise might not have done so, and he therefore has not alleged that they engaged in conduct sufficient to constitute encouraging or inducing. We recognize that some of our sister circuits have chosen to define “encouraging or inducing” more broadly than we do here. See Edwards, 602 F.3d at 1295 (affirming a conviction for encouraging or inducing where the defendants hired and actively sought out individuals known to be undocumented and also provided them with names and social security numbers to facilitate their illegal employment); Lopez, 590 F.3d at 1249-52 (defining “encouraging or inducing” to include the act of “helping” aliens come to, enter, or remain in the United States and upholding Lopez’s conviction for encouraging or inducing where he captained a boat to the Bahamas, refueled it, spent the night, picked up aliens who lacked lawful immigration status from a hotel, and then drove them toward the United States in the boat); United States v. Fujii, 301 F.3d 535, 540 (7th Cir.2002) (“To prove that Fujii ‘encouraged or induced’ the" }, { "docid": "19774230", "title": "", "text": "discussed at length, prohibits harboring an alien not lawfully present. If we define “encourage” merely as “to help,” then the particular conduct that is prohibited in subsections (i)-(iii) is subsumed by the general prohibition against helping an undocumented person to “come to, enter, or reside in” the United States in subsection (iv). Id. at 249. Noting that courts read statutes to avoid, if possible, making any part superfluous, the Third Circuit read subsection (iv) as prohibiting a person from engaging in an affirmative act that substantially encourages or induces an alien lacking lawful immigration status to come to, enter, or reside in the United States where the undocumented person otherwise might not have done so. Thus, subsection (iv) has the distinct character of foreclosing the type of sub stantial assistance that will spur a person to commit a violation of immigration law where they otherwise might not have. Id. (emphasis added). The Third Circuit has, I think, developed the reading of the statute most carefully tailored both to its plain language and the canons of statutory construction. That reading is applicable to the circumstances of this case. Circuits that earlier gave a broad reading to “encouraging or inducing” were faced with defendants who were personally and actively involved with bringing illegal aliens into the United States. See, e.g., U.S. v. Lopez, 590 F.3d 1238, 1249-52 (11th Cir.2002) (reading “encouraging or inducing” to be synonymous with “helping,” where Lopez captained a boat, picked up illegal aliens, and navigated the boat to the United States); United States v. Fujii, 301 F.3d 535, 540 (7th Cir.2002) (holding that “[t]o prove that Fujii ‘encouraged or induced’ the aliens, all that the government needed to establish was that Fujii knowingly helped or advised the aliens,” where Fujii was flying with the aliens to the United States). Here, of course, Henderson was not actively involved in bringing Bitencourt to the United States, and it is unclear how the Fourth, Eleventh, and Seventh Circuits would view Henderson’s de minimis assistance under the “reside” portion of § 1324(a)(l)(A)(iv) if directly confronted with such factual circumstances. The developing case" }, { "docid": "19774229", "title": "", "text": "statute. This means not just general advice ... but some affirmative assistance that makes an alien lacking lawful immigration status more likely to enter or remain in the United States than she otherwise might have been.” Id. at 248. Induce, the Third Circuit held, “plainly refers to conduct that causes someone to do something that they might otherwise not do.” Id. Looking to dictionaries by Memam-Webster and Black, the court noted that in the context of § 1324(a)(l)(A)(iv), “ ‘encourage’ ... also refers to conduct that causes someone to do something that they otherwise might not do.” Id. at 248-49. The Third Circuit adopted this view of “encouraging” and “inducing” in part because a broader reading of subsection (iv) would otherwise swallow up the other subsections: Subsection (i) prohibits bringing an alien lacking lawful immigration status to the United States other than at a designated port of entry. Subsection (ii) prohibits transporting such an alien within the United States in furtherance of their illegal presence in this country. Finally, subsection (iii), which we have already discussed at length, prohibits harboring an alien not lawfully present. If we define “encourage” merely as “to help,” then the particular conduct that is prohibited in subsections (i)-(iii) is subsumed by the general prohibition against helping an undocumented person to “come to, enter, or reside in” the United States in subsection (iv). Id. at 249. Noting that courts read statutes to avoid, if possible, making any part superfluous, the Third Circuit read subsection (iv) as prohibiting a person from engaging in an affirmative act that substantially encourages or induces an alien lacking lawful immigration status to come to, enter, or reside in the United States where the undocumented person otherwise might not have done so. Thus, subsection (iv) has the distinct character of foreclosing the type of sub stantial assistance that will spur a person to commit a violation of immigration law where they otherwise might not have. Id. (emphasis added). The Third Circuit has, I think, developed the reading of the statute most carefully tailored both to its plain language and the canons of" }, { "docid": "19774231", "title": "", "text": "statutory construction. That reading is applicable to the circumstances of this case. Circuits that earlier gave a broad reading to “encouraging or inducing” were faced with defendants who were personally and actively involved with bringing illegal aliens into the United States. See, e.g., U.S. v. Lopez, 590 F.3d 1238, 1249-52 (11th Cir.2002) (reading “encouraging or inducing” to be synonymous with “helping,” where Lopez captained a boat, picked up illegal aliens, and navigated the boat to the United States); United States v. Fujii, 301 F.3d 535, 540 (7th Cir.2002) (holding that “[t]o prove that Fujii ‘encouraged or induced’ the aliens, all that the government needed to establish was that Fujii knowingly helped or advised the aliens,” where Fujii was flying with the aliens to the United States). Here, of course, Henderson was not actively involved in bringing Bitencourt to the United States, and it is unclear how the Fourth, Eleventh, and Seventh Circuits would view Henderson’s de minimis assistance under the “reside” portion of § 1324(a)(l)(A)(iv) if directly confronted with such factual circumstances. The developing case law raises more broadly normative concerns about what happens when the judge-made gloss on a statute develops too quickly, with a consequent failure to consider carefully how cases at or beyond the margins of the statute’s reach may be affected by language more broad than necessary to decide the case under consideration. Cf. Pierre N. Leval, Judging Under the Constitution: Dicta About Dicta, 81 N.Y.U. L.Rev. 1249, 1255 (2006) (noting that courts are more likely to be imprecise in dicta than in an opinion’s holding). When faced with new statutes, prosecutors often wisely exercise their charging discretion to test the new statute only with cases squarely in the heartland of the conduct Congress plainly intended to deter and punish. Once the core cases are established to anchor the statute in Congress’s intent, prosecutors are free to advance their desired doctrine on the basis of precedent containing dicta which may not have considered the limits of the statute’s heartland. In this connection, if, as the Seventh Circuit has written, “all the government need[s] to establish is" }, { "docid": "11160517", "title": "", "text": "within” provision. Yoshida is therefore inapposite. Rather, as Thum argues, the out-of-circuit decisions in United States v. Ndiaye, 434 F.3d 1270, 1298 (11th Cir.2006), and United States v. Oloyede, 982 F.2d 133, 135-37 (4th Cir.1993) (per cu-riam), provide more useful guidance here. In Ndiaye, the Eleventh Circuit concluded that a defendant who enabled an illegal alien to work in the United States without fear of detection by supplying the alien with a Social Security number to which he was not entitled was properly convicted of encouraging the alien to reside here. Ndiaye, 434 F.3d at 1298. Similarly, in Oloyede, the Fourth Circuit concluded that the defendant encouraged illegal aliens to reside in the United States by providing them with false documents for citizenship applications. Oloyede, 982 F.2d at 137. As these cases demonstrate, a defendant “encourages” an illegal alien to “reside” in the United States when the defendant takes some action “to convince the illegal alien to ... stay in this country,” id., or to facilitate the alien’s ability to live in this country indefinitely, see Ndiaye, 434 F.3d at 1298. In this case, by contrast, the government proffered no evidence showing that Thum did anything to persuade, or even assist, an illegal alien to reside here. Rather, the evidence viewed in the light most favorable to the government merely shows that Thum attempted to help an illegal alien travel within the United States. As discussed above, if merely facilitating the transportation of an illegal alien within this country sufficed to show “encouragement,” then the separate statutory prohibition on “transportation” would be superfluous. As such, the evidence was insufficient to support the district court’s conclusion that Thum violated his supervised release by encouraging an illegal alien to reside in the United States. II. Aiding and Abetting Just as the evidence was insufficient to find that Thum encouraged an illegal alien to reside in the United States, there was insufficient evidence to show that Thum aided and abetted the commission of this crime. In revoking Thum’s supervised release, the district court concluded that Thum “was aiding and abetting Chapalin in [Varguez-R" }, { "docid": "11160514", "title": "", "text": "illegal alien within the United States would also have encouraged that alien to reside in the United States. This reading of the statute is foreclosed by Lopez, as it would render the statutory ban on transporting illegal aliens within the United States a mere subset of the prohibition on encouraging such aliens to reside in this country. The government counters that its broad reading of “encourages or induces” to “reside” is compelled by the plain language of the statute, and that Thum encouraged Varguez-Rodriguez to remain in this country by assisting in his attempt to travel north. This argument is unpersuasive. At the outset, we agree with the government, and the Seventh Circuit, that “to encourage” means “to inspire with courage, spirit, or hope ... to spur on ... to give help or patronage to.” United States v. He, 245 F.3d 954, 960 (7th Cir.2001) (quoting Merriam Webster’s Collegiate Dictionary 381 (10th ed.1996)). Indeed, we have previously equated “encouraged” with “helped.” United States v. Yoshida, 303 F.3d 1145, 1150 (9th Cir.2002). But the government’s argument that Thum encouraged Varguez-Rodriguez to reside in the United States merely by escorting him to a van that Thum knew was traveling north clashes with the statutory text. It is axiomatic that “a statute should be construed so that effect is given to all its provisions, so that no part will be inoperative or superfluous, void or insignificant.” Corley v. United States, 556 U.S. 303, 314, 129 S.Ct. 1558, 173 L.Ed.2d 443 (2009) (internal quotation marks and alterations omitted); see also United States v. Lin, 738 F.3d 1082, 1084 (9th Cir.2013) (rejecting an interpretation of one statutory provision that “would leave no work to be done by” another). And here, reading “encourages” under § 1324(a)(l)(A)(iv) as broadly as the government seeks “would leave no work to be done by” the separate ban on transporting an illegal alien within the United States under § 1324(a)(1)(A)(ii). Lin, 738 F.3d at 1084. We therefore reject the government’s reading of § 1324(a)(1)(A)(iv). Our decision in Yoshida, on which the government relies, does not compel a contrary conclusion. In that" }, { "docid": "19774228", "title": "", "text": "before the Third Circuit when the jury in this case returned its verdict, and as to which the mandate issued just last month, DelRio-Mocci v. Connolly Properties, Inc., 672 F.3d 241 (3d Cir.2012), the plaintiff brought a civil RICO suit against the property managers of his apartment building, claiming that they were engaged in a scheme to seek out illegal aliens as tenants so the management company could neglect repairs to the premises on the theory that illegal aliens would not complain about the housing conditions. The district court dismissed the complaint for failure, inter alia, to allege the predicate act of a violation of § 1324(a)(l)(A)(iv), and therefore failed to state a RICO conspiracy claim upon which relief could be granted. The Third Cir cuit affirmed on somewhat different grounds. The Third Circuit began by analyzing the scope of § 1324(a)(l)(A)(iv)’s prohibition against “encourag[ing] or inducting] an alien to come to, enter, or reside in the United States.” It held that “encouragement or inducement must also be ‘substantial’ to support a conviction under the statute. This means not just general advice ... but some affirmative assistance that makes an alien lacking lawful immigration status more likely to enter or remain in the United States than she otherwise might have been.” Id. at 248. Induce, the Third Circuit held, “plainly refers to conduct that causes someone to do something that they might otherwise not do.” Id. Looking to dictionaries by Memam-Webster and Black, the court noted that in the context of § 1324(a)(l)(A)(iv), “ ‘encourage’ ... also refers to conduct that causes someone to do something that they otherwise might not do.” Id. at 248-49. The Third Circuit adopted this view of “encouraging” and “inducing” in part because a broader reading of subsection (iv) would otherwise swallow up the other subsections: Subsection (i) prohibits bringing an alien lacking lawful immigration status to the United States other than at a designated port of entry. Subsection (ii) prohibits transporting such an alien within the United States in furtherance of their illegal presence in this country. Finally, subsection (iii), which we have already" }, { "docid": "19774233", "title": "", "text": "that [the] defendant knowingly helped or advised the alien,” Fujii, 301 F.3d at 540, the statute may be deployed to criminalize any action, however modest, which may be construed to involve any help or advice, however innocent in itself, to illegal aliens. The Third Circuit properly warned against such an overbroad reading of the statute. “[D]efming the conduct at issue in this case as encouraging or inducing runs the risk of criminalizing actions contemplated by federal law and undermining the federal system of immigration enforcement.” DelRio-Mocci, 672 F.3d at 250. 2. Sufficiency of the Evidence After trial, Henderson timely renewed her motion for judgment of acquittal. Under Federal Rule of Criminal Procedure 29, a judgment of acquittal may be entered “only if the evidence, viewed in the light most favorable to the government, could not have persuaded any trier of fact of the defendant’s] guilt beyond a reasonable doubt.” United States v. Mubayyid, 658 F.3d 35, 47 (1st Cir.2011). A trial judge “is not to weigh the evidence or assess the credibility of witnesses when [he] judges the merits of a motion for acquittal,” Burks v. United States, 437 U.S. 1, 16, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978), but must instead “take into account all evidence, both direct and circumstantial, and resolve evidentiary conflicts and credibility disputes in favor of the jury’s verdict.” United States v. Valerio, 676 F.3d 237, 244 (1st Cir.2012). Here, there appears to be sufficient evidence, albeit barely, in the record that a jury could find, even adopting (as I now do) the Third Circuit’s interpretation of § 1324(a)(l)(A)(iv) that Henderson, knowing Bitencourt was an illegal alien, encouraged or induced her to reside in the United States when, otherwise, she might not have so resided. The government contends there were two ways in which Henderson encouraged or induced Bitencourt to reside here: by employing her directly and by giving her advice about immigration laws. I address each in turn. With respect to employment, the government argued that the economic incentive of employment encouraged or induced Bitencourt to reside in the United States. The government argued" }, { "docid": "22582743", "title": "", "text": "reversible error. By defining “encourage” so generally to mean “help,” the district court rendered at least one other statutory subsection superfluous and also constructively amended the indictment. Jose Lopez drove the boat in which seventeen aliens were being smuggled into the United States. This conduct appears to violate another provision of the same statute, 8 U.S.C. § 1324(a)(2), which prohibits the knowing transportation of an alien who has not received prior official authorization to enter the United States. However, Lopez was not charged with violating this subsection. Rather, he was charged with violating § 1324(a)(l)(A)(iv), which prohibits the “encouragement” or “inducement” of an alien to come to the United States with the knowledge or reckless disregard of the fact that the alien’s entry into the United States is in violation of the law. The majority’s decision eschews the ordinary and common sense meaning of the word “encourage” in favor of the most general and least meaningful possible in terpretation, namely, “to help.” The majority reasons that one form of “help” is mere transportation. The majority’s interpretation thus criminalizes not, as it suggests, two aspects of the same conduct but rather the same aspect of the same conduct. That is, if “encourage” as applied to bringing aliens into the United States subsection (a)(1) means “help” and “help” includes transportation, then subsection (a)(2) (transportation) must likewise means exactly the same thing as subsection (a)(1) (“encouraging” or “inducing” — or, in the majority’s terms, “helping” an illegal entry). But surely “encouragement” or “inducement” under (a)(1) must criminalize something different than mere transportation, otherwise (a)(2) would be redundant. “A basic premise of statutory construction is that a statute is to be interpreted so that no words shall be discarded as being meaningless, redundant, or mere surplus-age.” United States v. Canals-Jimenez, 943 F.2d 1284, 1287 (11th Cir.1991). Reading the statute as a whole — with “encouragement” or “inducement” in context — demonstrates that “encourage” must be read to mean something more than mere “help” in order to avoid rendering (a)(2) redundant. See United States v. Murrell, 368 F.3d 1283, 1287 (11th Cir.2004) (disfavoring interpretation of" }, { "docid": "14505066", "title": "", "text": "Finally, subsection (iii), which we have already discussed at length, prohibits harboring an alien not lawfully present. If we define “encourage” merely as “to help,” then the particular conduct that is prohibited in subsections (i)-(iii) is subsumed by the general prohibition against helping an undocumented person to “come to, enter, or reside in” the United States in subsection (iv). “It is a well known canon of statutory construction that courts should construe statutory language to avoid interpretations that would render any phrase superfluous.” United States v. Cooper, 396 F.3d 308, 312 (3d Cir.2005); see also Lopez, 590 F.3d at 1259 (“ ‘A basic premise of statutory construction is that a statute is to be interpreted so that no words shall be discarded as being meaningless, redundant, or mere surplusage.’ ” (quoting United States v. Canals-Jimenez, 943 F.2d 1284, 1287 (11th Cir.1991))). Accordingly, we read subsection (iv) as prohibiting a person from engaging in an affirmative act that substantially encourages or induces an alien lacking lawful immigration status to come to, enter, or reside in the United States where the undocumented person otherwise might not have done so. Thus, subsection (iv) has the distinct character of foreclosing the type of substantial assistance that will spur a person to commit a violation of immigration law where they otherwise might not have. The Property Managers in this case did not engage in an affirmative act that served as a catalyst for aliens to reside in the United States in violation of immigration law when they might not have otherwise. Bolmer suggests that the Property Managers provided aliens not lawfully present with rental housing, which other companies would not do, thereby encouraging them to reside in the United States when they otherwise might not have. However, Bolmer did not allege that these aliens would not or could not have resided in the United States without renting apartments in Connolly Properties’ buildings. Nor, given the facts of this ease, would such an assertion have been facially plausible, as the motion to dismiss standard requires. See Warren General Hosp. v. Amgen, Inc., 643 F.3d 77, 83" }, { "docid": "14505065", "title": "", "text": "affirmative act that serves as a catalyst or trigger that drives, motivates, or spurs another individual to embark on a course of action that he might not have otherwise.” United States v. Lopez, 590 F.3d 1238, 1259 (11th Cir. 2009) (Barkett, J., dissenting). Thus, “encourage” is best defined as “ ‘[t]o instigate; to incite to action; to give courage to; to inspirit; to embolden; to raise confidence; to make confident.’ ” Id. (quoting Black’s Law Dictionary 620 (4th ed.1968)). These definitions demonstrate that the word “encourage,” in the context of this statute, also refers to conduct that causes someone to do something that they otherwise might not do. Indeed, reading the encouraging or inducing subsection of the statute too broadly risks rendering the remaining subsections of 8 U.S.C. § 1324(a)(1)(A) redundant or superfluous. Subsection (i) prohibits bringing an alien lacking lawful immigration status to the United States other than at a designated port of entry. Subsection (ii) prohibits transporting such an alien within the United States in furtherance of their illegal presence in this country. Finally, subsection (iii), which we have already discussed at length, prohibits harboring an alien not lawfully present. If we define “encourage” merely as “to help,” then the particular conduct that is prohibited in subsections (i)-(iii) is subsumed by the general prohibition against helping an undocumented person to “come to, enter, or reside in” the United States in subsection (iv). “It is a well known canon of statutory construction that courts should construe statutory language to avoid interpretations that would render any phrase superfluous.” United States v. Cooper, 396 F.3d 308, 312 (3d Cir.2005); see also Lopez, 590 F.3d at 1259 (“ ‘A basic premise of statutory construction is that a statute is to be interpreted so that no words shall be discarded as being meaningless, redundant, or mere surplusage.’ ” (quoting United States v. Canals-Jimenez, 943 F.2d 1284, 1287 (11th Cir.1991))). Accordingly, we read subsection (iv) as prohibiting a person from engaging in an affirmative act that substantially encourages or induces an alien lacking lawful immigration status to come to, enter, or reside in the" }, { "docid": "19774227", "title": "", "text": "recently, the Eleventh Circuit canvassed the cases under § 1324(a)(l)(A)(iv), while considering an appeal over the propriety of a motion to dismiss a civil RICO action. Edwards v. Prime, Inc., 602 F.3d 1276 (11th Cir.2010). The court observed that it had previously “given a broad interpretation to the phrase ‘encouraging or inducing’... construing it to include the act of ‘helping’ aliens ... remain in the United States,” id. at 1295, and reversed the District Court for dismissing a RICO claim under § 1324(a)(l)(A)(iv) where “the defendants had knowingly supplied the aliens with jobs and with social security numbers to facilitate their employment.” Id. The court observed that the case law had developed around the proposition that illegal aliens would be encouraged or induced because “[t]heir ability to find and keep jobs depends to a considerable extent on improperly obtaining the necessary documentation.” Id. at 1296. The Third Circuit, however, has most recently taken issue with the broad language in the law of other circuits regarding the scope of § 1324(a)(l)(A)(iv). In a case on appeal before the Third Circuit when the jury in this case returned its verdict, and as to which the mandate issued just last month, DelRio-Mocci v. Connolly Properties, Inc., 672 F.3d 241 (3d Cir.2012), the plaintiff brought a civil RICO suit against the property managers of his apartment building, claiming that they were engaged in a scheme to seek out illegal aliens as tenants so the management company could neglect repairs to the premises on the theory that illegal aliens would not complain about the housing conditions. The district court dismissed the complaint for failure, inter alia, to allege the predicate act of a violation of § 1324(a)(l)(A)(iv), and therefore failed to state a RICO conspiracy claim upon which relief could be granted. The Third Cir cuit affirmed on somewhat different grounds. The Third Circuit began by analyzing the scope of § 1324(a)(l)(A)(iv)’s prohibition against “encourag[ing] or inducting] an alien to come to, enter, or reside in the United States.” It held that “encouragement or inducement must also be ‘substantial’ to support a conviction under the" }, { "docid": "11160515", "title": "", "text": "that Thum encouraged Varguez-Rodriguez to reside in the United States merely by escorting him to a van that Thum knew was traveling north clashes with the statutory text. It is axiomatic that “a statute should be construed so that effect is given to all its provisions, so that no part will be inoperative or superfluous, void or insignificant.” Corley v. United States, 556 U.S. 303, 314, 129 S.Ct. 1558, 173 L.Ed.2d 443 (2009) (internal quotation marks and alterations omitted); see also United States v. Lin, 738 F.3d 1082, 1084 (9th Cir.2013) (rejecting an interpretation of one statutory provision that “would leave no work to be done by” another). And here, reading “encourages” under § 1324(a)(l)(A)(iv) as broadly as the government seeks “would leave no work to be done by” the separate ban on transporting an illegal alien within the United States under § 1324(a)(1)(A)(ii). Lin, 738 F.3d at 1084. We therefore reject the government’s reading of § 1324(a)(1)(A)(iv). Our decision in Yoshida, on which the government relies, does not compel a contrary conclusion. In that case, the defendant escorted three aliens onto an airplane and accompanied them from Japan to the United States. Yoshida, 303 F.3d at 1148. We affirmed the defendant’s conviction for both encouraging or inducing the aliens to enter the United States, under § 1324(a)(1)(A)(iv), and bringing those aliens to the United States, under § 1324(a)(2)(B)(ii). Id. at 1149. The government correctly observes that, under Yoshida, the same criminal conduct may violate more than one provision of § 1324 at the same time. Accordingly, if Thum had both assisted in the transportation of an illegal alien within the United States and taken steps to encourage that alien to reside here, Yoshida would permit the revocation of his supervised release under both the “encourages or induces” and the “transports within” provisions of § 1324. But, as discussed above, Thum took no steps to encourage an illegal alien to reside in this country, and nothing in Yoshida supports the proposition that the “encourages or induces” provision is violated whenever a defendant engages in conduct that may violate the “transports" }, { "docid": "14505069", "title": "", "text": "country unlawfully when they otherwise might not have done so, and he therefore has not alleged that they engaged in conduct sufficient to constitute encouraging or inducing. We recognize that some of our sister circuits have chosen to define “encouraging or inducing” more broadly than we do here. See Edwards, 602 F.3d at 1295 (affirming a conviction for encouraging or inducing where the defendants hired and actively sought out individuals known to be undocumented and also provided them with names and social security numbers to facilitate their illegal employment); Lopez, 590 F.3d at 1249-52 (defining “encouraging or inducing” to include the act of “helping” aliens come to, enter, or remain in the United States and upholding Lopez’s conviction for encouraging or inducing where he captained a boat to the Bahamas, refueled it, spent the night, picked up aliens who lacked lawful immigration status from a hotel, and then drove them toward the United States in the boat); United States v. Fujii, 301 F.3d 535, 540 (7th Cir.2002) (“To prove that Fujii ‘encouraged or induced’ the aliens, all that the government needed to establish was that Fujii knowingly helped or advised the aliens.”). Nevertheless, while setting a seemingly low bar (i.e. “to help”) these cases have found that encouraging or inducing occurred only where defendants were personally involved in bringing aliens lacking lawful immigration status into the United States. The defendant in Fujii for example, accompanied such aliens on their trip to the United States, while the Lopez defendant conveyed aliens toward the Untied States via boat. Thus, we are not convinced that these circuits would agree that giving any type of “help” to an alien not lawfully present, no matter how de minimis the assistance, constitutes the crime of encouraging or inducing. Moreover, defining the conduct at issue in this case as encouraging or inducing runs the risk of criminalizing actions contemplated by federal law and undermining the federal system of immigration enforcement. Persons who currently lack lawful immigration status may nonetheless reside in the United States, often with the explicit knowledge or even permission of the federal government. See," }, { "docid": "22260592", "title": "", "text": "Inc., No. 08-1016, at 12-13 (N.D.Ala. Dec. 11, 2008). We believe the district court was mistaken. This Court has given a broad interpretation to the phrase “encouraging or inducing” in this context, construing it to include the act of “helping” aliens come to, enter, or remain in the United States. See Lopez, 590 F.3d at 1249-51; United States v. Ndiaye, 434 F.3d 1270, 1278 (11th Cir.2006); United States v. Kuku, 129 F.3d 1435, 1437 (11th Cir.1997). In Lopez we held that the district court had accurately presented the substantive law of § 1324(a)(1)(A)(iv) to the jury by informing it that the term “encourage” was defined as “to knowingly instigate, to incite to action, to give courage to, to inspirit, to embolden, to raise confidence, to help, to forward, and/or to advise.” Lopez, 590 F.3d at 1247; see also id. at 1249 (citing similar dictionary definitions of “encourage” with approval). The defendant in that case had captained a boat to the Bahamas, refueled it, spent the night, picked up aliens from a hotel, and then driven the boat as it returned with the aliens towards the United States. Id. at 1252. This Court held that conduct was “more than adequate” to support a conviction under § 1324(a)(l)(A)(iv). Id. Similarly, in Ndiaye this Court affirmed a defendant’s conviction under § 1324(a)(l)(A)(iv) for helping one illegal alien fraudulently obtain a social security number. 434 F.3d at 1296. The defendant contended that the government “failed to show any actual, potential or perceived relationship between immigration status and receipt of a Social Security number.” Id. He argued “that while there may be some correlation between the issuance of Social Security numbers and aliens employed in the United States, the act of merely helping someone obtain a Social Security number cannot be construed as ‘encouraging or inducing’ them to reside in this country in violation of the criminal statute.” Id. at 1297-98 (emphasis added). We rejected that argument. Since the alien “was able to work in the United States because of the Social Security number he was issued,” we held that a reasonable “jury could have" }, { "docid": "14505064", "title": "", "text": "disregard of the fact that such coming to, entry, or residence is or will be in violation of law.” As described above, in order to make out a claim for harboring in our circuit, it must be shown that the alleged violator “substantially facilitated” an alien not lawfully present remaining in the United States. Similarly, we believe that encouragement or inducement must also be “substantial” to support a conviction under the statute. This means not just general advice (as the Ozcelik defendant provided) but some affirmative assistance that makes an alien lacking lawful immigration status more likely to enter or remain in the United States than she otherwise might have been. “Induce” is defined as “to move by persuasion or influence; to call forth or bring about by influence or stimulation; to cause the formation of; or to produce,” Merriam-Webster Online Dictionary, available at www.merriam-webster.com, and that word plainly refers to conduct that causes someone to do something that they might otherwise not do. Moreover, “[t]he ordinary and common sense meaning of ‘encourage’ implies an affirmative act that serves as a catalyst or trigger that drives, motivates, or spurs another individual to embark on a course of action that he might not have otherwise.” United States v. Lopez, 590 F.3d 1238, 1259 (11th Cir. 2009) (Barkett, J., dissenting). Thus, “encourage” is best defined as “ ‘[t]o instigate; to incite to action; to give courage to; to inspirit; to embolden; to raise confidence; to make confident.’ ” Id. (quoting Black’s Law Dictionary 620 (4th ed.1968)). These definitions demonstrate that the word “encourage,” in the context of this statute, also refers to conduct that causes someone to do something that they otherwise might not do. Indeed, reading the encouraging or inducing subsection of the statute too broadly risks rendering the remaining subsections of 8 U.S.C. § 1324(a)(1)(A) redundant or superfluous. Subsection (i) prohibits bringing an alien lacking lawful immigration status to the United States other than at a designated port of entry. Subsection (ii) prohibits transporting such an alien within the United States in furtherance of their illegal presence in this country." } ]

[ { "docid": "22750502", "title": "", "text": "motive is critical, although it can in some situations be inferred from the mere fact of differences in treatment. See, e. g., Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U. S. 252, 265-266. Undoubtedly disparate treatment was the most obvious evil Congress had in mind when it enacted Title VII. See, e. g., 110 Cong. Rec. 13088 (1964) (remarks of Sen. Humphrey) (“What the bill does ... is simply to malee it an illegal practice to use race as a factor in denying employment. It provides that men and women shall be employed on the basis of their qualifications, not as Catholic citizens, not as Protestant citizens, not as Jewish citizens, not as colored citizens, but as citizens of the United States”). Claims of disparate treatment may be distinguished from claims that stress “disparate impact.” The latter involve employment practices that are facially neutral in their treatment of different groups but that in fact fall more harshly on one group than another and cannot be justified by business necessity. See infra, at 349. Proof of discriminatory motive, we have held, is not required under a disparate-impact theory. Compare, e. g., Griggs v. Duke Power Co., 401 U. S. 424, 430-432, with McDonnell Douglas Corp. v. Green, 411 U. S. 792, 802-806. See generally B. Schlei & P. Grossman, Employment Discrimination Law 1-12 (1976); Blumrosen, Strangers in Paradise: Griggs v. Duke Power Co. and the Concept of Employment Discrimination, 71 Mich. L. Rev. 59 (1972). Either theory may, of course, be applied to a particular set of facts. The “pattern or practice” language in § 707 (a) of Title VII, supra, at 328 n. 1, was not intended as a term of art, and the words reflect only their usual meaning. Senator Humphrey explained: \"[A] pattern or practice would be present only where the denial of rights consists of something more than an isolated, sporadic incident, but is repeated, routine, or of a generalized nature. There would be a pattern or practice if, for example, a number of companies or persons in the same industry or line of business discriminated," } ]

[ { "docid": "23650990", "title": "", "text": "EEOC and were dropped from the suit.) The Commission alleged that the denial of severance pay to employees eligible for retirement violated the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. On cross motions for summary judgment the United States District Court of Arizona, per Judge Cordova, held for the EEOC. The court found that the severance pay policy thad a discriminatory impact on older workers and was not a “bona fide employee benefit plan” exempted from the Act’s strictures by 29 U.S.C. § 623(f)(2). 551 F.Supp. 1095 (D.Ariz.1982). Borden has appealed. The Equal Employment Advisory Council, an association of employers, has filed an amicus brief supporting Borden. We affirm. ISSUES This appeal presents two questions: 1) whether Borden’s policy of denying severance pay to employees eligible for retirement discriminates on the basis of age; 2) whether Borden’s severance pay policy qualifies for the “bona fide employee benefit plan” exception under the Age Discrimination in Employment Act, 29 U.S.C. § 623(f)(2). ANALYSIS A. Standard of Review The facts are not in dispute, though the parties characterize them differently. Neither party asserts that summary judgment was inappropriate. The district court interpreted the statute and applied it to stipulated facts. The standard of review is de novo. Turner v. Prod, 707 F.2d 1109, 1114 (9th Cir.1983). See also M/V American Queen v. San Diego Marine Construction Corp., 708 F.2d 1483, 1487 (9th Cir. 1983): “In reviewing a grant of summary judgment, our task is identical to that of the trial court.” B. Age discrimination 1. Introduction The Age Discrimination in Employment Act forbids an employer to “discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age.” 29 U.S.C. § 623(a)(1). Plaintiffs alleging age discrimination can proceed under “disparate treatment” or “disparate impact” theories. Douglas v. Anderson, 656 F.2d 528, 531 & n. 1 (9th Cir.1981). The chief difference between them is that disparate treatment involves discriminatory intent, whereas intent need not be shown in a disparate impact case. International Brotherhood of Teamsters v. United States, 431 U.S. 324, 335" }, { "docid": "18648232", "title": "", "text": "as citizens of the United States”). Claims of disparate treatment may be distinguished from claims that stress “disparate impact.” The latter involve employment practices that are facially neutral in their treatment of different groups but that in fact fall more harshly on one group than another and cannot be justified by business necessity. See infra, at 1861. Proof of discriminatory motive, we have held, is not required under a disparate-impact theory. Compare e. g., Griggs v. Duke Power Co., 401 U.S. 424, 430-432, 91 S.Ct. 849, 853-854 [28 L.Ed.2d 158] with McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-806, 93 S.Ct. 1817, 1824-1826 [36 L.Ed.2d 668]. 431 U.S. at 335, 97 S.Ct. 1854, n.15. The Title VII claims of disparate treatment must be evaluated in accordance with the leading decision in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), in which the Supreme Court held: The complaint 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 complaint’s qualifications.. . . The burden then must shift to the employer to articulate some legitimate, nondiscriminatory reason for the employee’s rejection.... [If a legitimate, nondiscriminatory basis for the employer’s action is articulated, the plaintiff must] be afforded a fair opportunity to show that [the employer’s] stated reason for [the plaintiff’s] rejection was in fact pretext [for discrimination]. 411 U.S. 802-804, 97 S.Ct. 1824-1825. Proving a prima facie case under McDonnell Douglas establishes the critical finding of discriminatory motive because such a showing creates “an inference that an employment decision was based on a discriminatory criterion illegal under the act.” Teamsters, 431 U.S. at 358, 97 S.Ct. at 1866. In Furnco Construction Corp. v." }, { "docid": "7634925", "title": "", "text": "a suit alleging discrimination and the difficulty and expense of defending against such a suit, courts correctly find summary judgment proper where allegations of discriminatory intent are merely eonclusory. i. Prima facie case under Title VII Designed “ ‘to achieve equality of employment opportunities and remove barriers that have operated in the past to favor an identifiable group of white employees over other employees,’” Albemarle Paper Co. v. Moody, 422 U.S. 405, 417, 95 S.Ct. 2362, 2371, 45 L.Ed.2d 280 (1975) (quoting Griggs v. Duke Power Co., 401 U.S. 424, 429-30, 91 S.Ct. 849, 852-53, 28 L.Ed.2d 158 (1971)), Title VII prohibits not only overt and intentional discrimination, but also discrimination resulting from practices that are facially neutral but have a “disparate impact” on a protected group. See, e.g., International Brotherhood of Teamsters v. United States, 431 U.S. 324, 335-36 n. 15, 97 S.Ct. 1843, 1854-55 n. 15, 52 L.Ed.2d 396 (1977); Griggs, 401 U.S. at 431, 91 S.Ct. at 853. Section 703(a) of Title VII defines “unlawful employment practice” in this way: It shall be an unlawful employment practice for an employer ... 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____ 42 U.S.C. § 2000e-2(a)(l). In the Second Circuit, Title VII cases are analyzed under the familiar framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Under the test articulated in McDonnell Douglas, á plaintiff must demonstrate that: (i) he'is a member of a protected class; (ii) he was qualified for the position; (iii) he was subjected to an adverse employment decision; and (iv) either the position remained open or he was replaced by someone not a member of his protected class. Sergio de la Cruz v. New York City Human Resources Administration Dept. of Social Services, 82 F.3d 16, 20 (2d Cir.1996) (citing McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. at 1824); see also Owens v. New" }, { "docid": "21893283", "title": "", "text": "S.Ct. 2362, 45 L.Ed.2d 280 (1975); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Plaintiffs may, under current Title VII jurisprudence, prove a prima facie case of employment discrimination under one of two clearly defined theories: discrimination by disparate treatment or discrimination by disparate impact. “Disparate treatment” such as is alleged in the present case is the most easily understood type of discrimination. The employer simply treats some people less favorably than others because of their race, color, religion, sex, or national origin. Proof of discriminatory motive is critical, although it can in some situations be inferred from the mere fact of differences in treatment. . . . Undoubtedly disparate treatment was the most obvious evil Congress had in mind when it enacted Title VIL . Claims of disparate treatment may be distinguished from claims that stress “disparate impact.” The latter involve employment practices that are facially neutral in their treatment of different groups but that in fact fall more harshly on one group than another and cannot be justified by business necessity. . Proof of discriminatory motive, we have held, is not required under a disparate impact theory. Compare, e. g., Griggs v. Duke Power Co., 401 U.S. 424, 430-432 [91 S.Ct. 849, 853-854, 28 L.Ed.2d 158], with McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-806 [93 S.Ct. 1817, 1824-1826, 36 L.Ed.2d 668]. . . . Either theory may, of course, be applied to a particular set of facts. Teamsters v. United States, 431 U.S. 324, 335-36, n.15, 97 S.Ct. 1843, 1854, n.15 (1977). Eastern’s mandatory maternity leave requirements, although facially neutral, affect only one class of employees-female ■ flight attendants-and have a disproportionate impact on their employment opportunities. This establishes a prima facie case of disparate impact employment discrimination. Eastern then, at trial, had the burden of defending against the prima facie discrimination by demonstrating a legitimate justification for its policy. The trial court, recognizing some confusion in Title VII sex discrimination cases as to whether a BFOQ defense or a business necessity defense applies to a disparate impact type" }, { "docid": "14896007", "title": "", "text": "his compensation, terms, conditions, or privileges of employment, because of such individual’s age; (2) to limit, segregate, or classify his employees 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 age. 29 U.S.C. § 623(a) (1982). In applying the terms of the statute to particular cases, courts have drawn upon Supreme Court decisions detailing the twin methods of proof in race or gender discrimination cases under Title VII of the Civil Rights Act of 1964. Under traditional Title VII analysis, a plaintiff may establish that he was the victim of disparate treatment by introducing sufficient evidence to establish a prima facie case of discrimination. The defendant must then come forward and articulate some legitimate, non-discriminatory reason for his actions. Provided the defendant does so, the plaintiff must establish that the defendant’s proffered reason is a mere pretext for 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); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817, 1824-25, 36 L.Ed.2d 668 (1973). Throughout the entire process, the burden of persuasion remains with the plaintiff and proof of discriminatory intent is critical. Burdine, 450 U.S. at 248, 101 S.Ct. at 1089. Alternatively, a Title YII plaintiff may recover by establishing that a particular employment practice, while neutral on its face, has a disparate impact on the protected class. Griggs v. Duke Power Co., 401 U.S. 424, 432, 91 S.Ct. 849, 854, 28 L.Ed.2d 158 (1971) (Title VII directed to “consequences of employment practices, not simply the motivation”) (emphasis original). Proof of discriminatory intent is not necessary to prevail on a disparate impact claim. The plaintiff must simply establish, generally through the use of statistical evidence, that the challenged practice has a disparate impact on the protected class. Once this is accomplished, the burden shifts to the defendant to supply evidence that the practice is a “business necessity.” Id. at 432, 91 S.Ct. at 854. The plaintiff may still prevail" }, { "docid": "23225689", "title": "", "text": "to promote a person because of his or her race, religion, national origin or sex. The reason why the employer acted as he did is crucial. Where a Title VII case is brought under the disparate treatment theory, the plaintiff must prove discriminatory intent. See Furnco, supra, 433 U.S. at 577, 98 S.Ct. at 2949. The Court outlined the distinction between disparate impact and disparate treatment in Teamsters v. United States, 431 U.S. 324, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977): “Disparate treatment” is the most easily understood type of discrimination. The employer simply treats some people less favorably than others because of their race, color, religion, sex or national origin. Proof of discriminatory motive is critical, although it can in some situations be inferred from the mere fact of differences in treatment. See e. g. Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 265-266, 97 S.Ct. 555, 563-64, 50 L.Ed.2d 450. Claims of disparate treatment may be distinguished from claims that stress “disparate impact.” The latter involve employment practices that are facially neutral in their treatment of different groups but that in fact fall more harshly on one group than another and cannot be justified by business necessity. Proof of discriminatory motive, we have held, is not required under a disparate-impact theory. Compare, e. g., Griggs v. Duke Power Co., 401 U.S. 424, 430-432, 91 S.Ct. 849, 853-54, 28 L.Ed.2d 158, with McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-806, 93 S.Ct. 1817, 1824-26, 36 L.Ed.2d 668. Id. at 335-36 n.15, 97 S.Ct. at 1854 n.15. Plaintiff’s case was brought and tried under a theory of disparate treatment. Simply stated, the plaintiff contended that she was not promoted because she was a woman. Thus, in order to make her case, the plaintiff had to prove by a preponderance of the evidence that the defendants intentionally discriminated against her. The problem is that the district court made contradictory findings. It found that the defendants violated Title VII, but then found that the defendants had not intentionally discriminated against the plaintiff. A plaintiff who alleges disparate treatment by" }, { "docid": "19191232", "title": "", "text": "higher paying job categories including supervisory and administrative positions because of their sex and age respectively; H. Failing and refusing to take affirmative action to correct the effects of discriminatory policies and practices complained of herein.” Complaint at 7-8. As defendant only addresses the charge of age and sex discrimination in defendant’s creation and termination of the class of reduced-hour employees, the court will consider the summary judgment motion as applying to that charge only and will not rule on the above claims. Because the provisions of the ADEA parallel those of Title VII, many courts have applied the principles of Title VII to cases involving age discrimination. See Dreyer v. ARCO Chemical Co., 801 F.2d 651 (3d Cir.1986); Bemdt v. Kaiser Aluminum & Chemical Sales, Inc., 789 F.2d 253, 256 (3d Cir.1986); Massarsky v. General Motors Corp., 706 F.2d 111, 117 (3d Cir.), cert, denied, 464 U.S. 937, 104 S.Ct. 348, 78 L.Ed.2d 314 (1983); Douglas v. Anderson, 656 F.2d 528, 531-32 (9th Cir.1981); Rodriguez v. Taylor, 569 F.2d 1231, 1239 (3d Cir.1977), cert, denied, 436 U.S. 913, 98 S.Ct. 2254, 56 L.Ed.2d 414 (1978). As stated in Massarsky, A Title VII plaintiff may prosecute his claim under either of two distinct legal theories. First, he may allege that he is the victim of intentional discrimination, i.e., that his employer applied an expressly race-based or sex-based standard in its treatment of the plaintiff. This “disparate treatment” theory traces its roots to McDonnell Douglas Corp. v. Green, 411 U.S. 792, [93 S.Ct. 1817, 36 L.Ed.2d 668] (1973). Alternatively, he may rely upon the so-called “disparate impact” theory of Griggs v. Duke Power Co., 401 U.S. 424, [91 S.Ct. 849, 28 L.Ed.2d 158] (1971). This theory applies when the employer’s adverse action resulted not from any discriminatory motive but simply from application of facially neutral criteria that are alleged to have a disproportionate impact on members of the protected class and which cannot be justified by business necessity. See Dothard v. Rawlinson, 433 U.S. 321, 329, [97 S.Ct. 2720, 2726, 53 L.Ed.2d 786] (1977). 706 F.2d at 117. In the case" }, { "docid": "11774862", "title": "", "text": "749 (9th Cir.1984); Lojek, 716 F.2d at 677; Fed.R.Civ.P. 56(c). Although summary procedures should be used prudently, “particularly in cases involving issues of motivation or intent” in ADEA claims, Douglas v. Anderson, 656 F.2d 528, 535 (9th Cir.1981), such relief may nonetheless be appropriate. See Steckl v. Motorola, Inc., 703 F.2d 392, 393 (9th Cir.1983). B. Age Discrimination 1. Introduction Appellant claimed he was discriminated against on the basis of his age in violation of 29 U.S.C. § 633a, applicable exclusively to Federal employees, and which provides in part: All personnel actions affecting employees or applicants for employment who are at least 40 years of age ... in executive agencies as defined in Section 105 of Title 5 ... shall be made free from any discrimination based on age. The upper age limit under the ADEA is 70 years of age. 29 U.S.C. § 631(a)(1982). A plaintiff alleging discrimination under the ADEA may proceed under either of two theories: disparate treatment or disparate impact. Foster v. Arcata Associates, Inc., 772 F.2d 1453, 1458 (9th Cir.1985), cert. denied, — U.S. —, 106 S.Ct. 1267, 89 L.Ed.2d 576 (1986); Douglas v. Anderson, 656 F.2d at 531 & n. 1. Under the disparate treatment theory the employee must show discriminatory motive by the employer. International Brotherhood of Teamsters v. United States, 431 U.S. 324, 335 n. 15, 97 S.Ct. 1843, 1854 n. 15, 52 L.Ed.2d 396 (1977); Am. Fed. of S., C, & Mun. Emp. v. State of Wash., 770 F.2d 1401, 1405 (9th Cir.1985) (the plaintiff “must show the employer chose the particular policy because of its effect on members of a protected class”). Discriminatory motive need not be shown under the disparate impact theory. Teamsters, 431 U.S. at 335 n. 15, 97 S.Ct. at 1854 n. 15. The requirements under this theory, however, may be more exacting. “A disparate impact plaintiff ‘must not merely prove circumstances raising an inference of discriminatory impact; he must prove the discriminatory impact at issue.’ ” Moore v. Hughes Helicopters, Inc., 708 F.2d 475, 482 (9th Cir.1983) (quoting Johnson v. Uncle Ben’s, Inc., 657 F.2d 750," }, { "docid": "21892685", "title": "", "text": "protected by Title VII. Examples of such outwardly neutral employment practices include height and weight requirements, see Dothard v. Rawlinson, 433 U.S. 321, 97 S.Ct. 2720, 53 L.Ed.2d 786 (1977), or certain types of employment tests adversely affecting those of certain cultural backgrounds, see Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971). Once plaintiffs have shown the existence and impact of such a practice, which constitutes a prima facie case, the employer will be held liable unless the practice can be justified by “business necessity.” Dothard, 433 U.S. at 329, 97 S.Ct. at 2727; Griggs, 401 U.S. at 430, 91 S.Ct. at 853. A “treatment” case involves a situation where an employer treats an individual protected by Title VII differently simply because of the person’s minority status, religion or sex. In a treatment case, unlike an impact case, it is necessary to show an employer’s intent to discriminate, but intent can be inferred from circumstantial evidence. Teamsters, 431 U.S. at 335 n.15, 97 S.Ct. at 1854-1855 n.15. Once a plaintiff has introduced evidence from which it appears more likely than not that the defendant had an intent to discriminate, a prima facie “treatment” case is established. An employer will be liable unless it can “articulate” reasons which justify disparate treatment. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973); Golden v. Local 55 of the International Association of Firefighters, 633 F.2d 817 at 821 (9th Cir. 1980). If an employer does articulate legitimate, nondiscriminatory reasons for disparate treatment, the employee can then show that these reasons were a pretext to hide bias. McDonnell Douglas, 411 U.S. at 804-05, 93 S.Ct. at 1825-1826. A plaintiff in a Title VII ease can plead both theories. Although the disparate impact theory is ordinarily asserted in class actions, an individual claimant may seek relief under such a theory as well. Wright v. National Archives & Records Service, 609 F.2d 702, 711-12 (4th Cir. 1979) (en banc). Heagney alleges that categorizing certain employees as “exempt” is a neutral employment" }, { "docid": "22193337", "title": "", "text": "good cause.” Id. § 623(f)(3). Finally, the Act permits employers to discriminate “based on reasonable factors other than age.” Id. § 623(f)(1). The United States Supreme Court has said little about the elements of a cause of action under the ADEA. However, because in many respects the provisions of the ADEA parallel those of Title VII, many courts have adapted to issues of age discrimination the principles of law applicable to cases arising under Title VII of the Civil Rights Act. See Douglas v. Anderson, 656 F.2d 528, 531-32 (9th Cir.1981); Loeb v. Textron, Inc., 600 F.2d 1003 (1st Cir.1979); Schwager v. Sun Oil Co., supra, 591 F.2d at 60-61; Rodriguez v. Taylor, 569 F.2d 1231, 1239 (3d Cir.1977), cert. denied, 436 U.S. 913, 98 S.Ct. 2254, 56 L.Ed.2d 414 (1978). A Title VII plaintiff may prosecute his claim under either of two distinct legal theories. First, he may allege that he is the victim of intentional discrimination, i.e., that his employer applied an expressly race-based or sex-based standard in its treatment of the plaintiff. This “disparate treatment” theory traces its roots to McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Alternatively, he may rely upon the so-called “disparate impact” theory of Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971). This theory applies when the employer’s adverse action resulted not from any discriminatory motive but simply from application of facially neutral criteria that are alleged to have a disproportionate impact on members of the protected class and which cannot be justified by business necessity. See Dothard v. Rawlinson, 433 U.S. 321, 329, 97 S.Ct. 2720, 2726, 53 L.Ed.2d 786 (1979); Albemarle Paper Co. v. Moody, 422 U.S. 405,425, 95 S.Ct. 2362, 2375, 45 L.Ed.2d 280 (1975). See also Teamsters v. United States, 431 U.S. 324, 335-36 n. 15, 97 S.Ct. 1843, 1854 n. 15, 52 L.Ed.2d 396 (1977); Croker v. Boeing Co., 662 F.2d 975, 991 (3d Cir.1981). From what we can determine, the plaintiff in the instant case apparently has attempted to straddle these two" }, { "docid": "23373029", "title": "", "text": "cause of action alleges individual, disparate treatment under Title VII. She does not assert a disparate impact claim: she makes no allegation that a Parsons-Gilbane policy which was gender-neutral on its face had a discriminatory disparate impact on women. Instead, she simply alleges that she was the victim of ParsonsGilbane’s disparate treatment which consisted of paying her a lower wage than her successor. Although in disparate impact cases, the plaintiff is not required to prove that an employer intended to discriminate, Griggs v. Duke Power Co., 401 U.S. 424, 430, 91 5. Ct. 849, 853, 28 L.Ed.2d 158, 163 (1971), the plaintiff is required to prove intent in a disparate treatment case. Furnco Construction Corp. v. Waters, 438 U.S. 567, 577, 98 S.Ct. 2943, 2949, 57 L.Ed.2d 957, 967 (1978); Johnson v. Uncle Ben’s, Inc., 657 F.2d 750, 753 (5th Cir.1981), cert. denied, - U.S. -, 103 S.Ct. 293, 74 L.Ed.2d 277 (1982). Because the plaintiff frequently finds it an impossible or most difficult task to produce direct evidence of an employer’s intent to discriminate, the Supreme Court has set out the prima facie case the plaintiff must prove, from which a court may infer intentional discrimination. In, for instance, a suit alleging sex discrimination in an employer’s failure to hire or promote, the plaintiff generally must prove (1) that she was a member of a protected group, (2) that she applied for a position for which she was qualified, (3) that she was rejected, and (4) that after she was rejected, the position remained open and the employer continued to seek applications from persons with the plaintiff’s qualifications. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668, 677 (1973). The plaintiff may also, however, use other methods of proof from which a court may infer the employer’s intent to discriminate. As the Supreme Court noted when it laid out the aforementioned elements of a prima facie case, “[t]he facts necessarily will vary in Title VII cases, and the specification above of the prima facie proof required from [plaintiff] is not necessarily applicable" }, { "docid": "531303", "title": "", "text": "defined a certifiable class for the purpose of Federal Rules of Civil Procedure 23(a) and 23(b), the Court must also conclude that the proposed Settlement Agreement cannot be preliminarily approved as “fair, reasonable, and adequate” under Rule 23(e)(2). Accordingly, the instant motion for preliminary approval of the Settlement Agreement must be DENIED. A separate order consistent with this memorandum opinion will follow. 1. BACKGROUND A. Disparate Treatment And Disparate Impact Claims Under Title YU Claims of'employment discrimination under Title VII may proceed under both “disparate treatment” and “disparate impact” theories. Ricci v. DeStefano, 557 U.S. 557, 577, 129 S.Ct. 2658, 174 L.Ed.2d 490 (2009); see also Griggs v. Duke Power Co., 401 U.S. 424, 431, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971). “Disparate treatment occurs when ,‘[t]he employer simply treats some people less favorably than others because of their race, color, religion, sex, or national origin.’ ” Anderson v. Zubieta, 180 F.3d 329, 338 (D.C. Cir. 1999) (alteration in original) (quoting Int’l Bhd. of Teamsters v. United States, 431 U.S. 324, 335 n.15, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977)); see also 42 U.S.C. § 2000e-2(a)(l) (making it unlawful for an employer “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”). To make out a prima facie case of disparate treatment discrimination, a plaintiff must prove that “(i) [he or she] suffered an adverse employment action (ii) because of [his or her] race, color, religion, sex, or national origin.” Brady v. Office of Sergeant at Arms, 520 F.3d 490, 493 (D.C. Cir. 2008); see also id. at 493 & n.1 (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)). “Proof of discriminatory motive is critical for [disparate treatment] claims.” Anderson, 180 F.3d at 338 (internal quotation marks and citation omitted). By contrast, a disparaté impact claim arises when “policies or practices that are neutral on their face and in intent ..." }, { "docid": "2597490", "title": "", "text": "could be interpreted as holding otherwise should not be so interpreted. This analysis begins with a brief overview of the two commonly used theories for proving Title VII violations, the disparate treatment theory and the disparate impact theory. Unlawful disparate treatment occurs when an employee treats an employee or employees less favorably than others because of the employee’s membership in a group protected by Title VII. See International Bhd. of Teamsters v. United States, 431 U.S. 324, 335-36 n. 15, 97 S.Ct. 1843, 1854-55 n. 15, 52 L.Ed.2d 396 (1977); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). To establish disparate treatment, a plaintiff must prove intentional discrimination, id., whether by direct evidence or by inference under the test developed in McDonnell Douglas. Unlawful disparate impact occurs when a facially neutral employment practice affects more harshly a group protected by Title VII than on others and cannot be justified by a business necessity. Teamsters, 431 U.S. at 335-36 n. 15, 97 S.Ct. at 1854-55 n. 15; Griggs v. Duke Power Co., 401 U.S. 424, 431, 91 S.Ct. 849, 853, 28 L.Ed.2d 158 (1971). A disparate impact plaintiff need not prove intentional discrimination; indeed, the employer’s motive may be as innocent as the desire to hire the most qualified person. Teamsters, 431 U.S. at 335-36 n. 15, 97 S.Ct. at 1854-55 n. 15; Griggs, 401 U.S. at 431, 91 S.Ct. at 853. Thus, for example, even subjectively good faith use of objective criteria such as education requirements, if not justified by business necessity, may be unlawful under the disparate impact theory. The adverse affect on the protected class constitutes the discrimination, without any intent to single out any person or group of people because of their membership in that protected group. The Title VII standard for sexually hostile work environment, as it has been developed by the courts, requires a plaintiff to prove (1) that she was subject to unwelcome harassment because of her gender, (2) that the harassment was sufficiently severe or pervasive to create an abusive work environment,' and (3) that there" }, { "docid": "23012071", "title": "", "text": "differential treatment.” Appellants argue, based on the above language, that the district court improperly demanded a showing of bad faith before it would strike down the leadman classification. For the reasons discussed below, we conclude that the district court used the improper standard of proof and remand for further proceedings consistent with this opinion. Under our analysis, it is not necessary that we accept appellants’ characterization of the district court’s memorandum opinion. As noted above, appellants argue the district court improperly required a showing of bad faith. Bad faith is not necessarily an issue under Title VII. See Albemarle Paper Co. v. Moody, supra, 422 U.S. at 422-23, 95 S.Ct. 2362; Griggs v. Duke Power Co., 401 U.S. 424, 432, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971). However, “[p]roof of discriminatory motive is critical” to strike down an employment practice challenged under a disparate treatment theory, but such “[p]roof of discriminatory motive ... is not required under a- disparate-impact theory.” Teamsters v. United States, supra, 431 U.S. at 335-36 n.15, 97 S.Ct. at 1554-55 n.15; (emphasis added); compare McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-06, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) (disparate treatment), with Griggs v. Duke Power Co., supra, 401 U.S. at 430—32, 91 S.Ct. 849 (disparate impact). See generally Blumrosen, Strangers in Paradise : Griggs v. Duke Power Co. and the Concept of Employment Discrimination, 71 Mich.L.Rev. 59 (1972). Either the disparate treatment or disparate impact theory can be applied to the particular facts in the present case. See Teamsters v. United States, supra, 431 U.S. at 335-36 n.15, 97 S.Ct. 1843; Wright v. National Archives & Records Serv., 609 F.2d 702, 710 (4th Cir. 1979) (en banc) (characterizes disparate treatment and disparate impact theories as alternative grounds for relief). Thus, even construing the district court’s word “purpose” as the equivalent of either “intent” or “motive” as used in recent Supreme Court cases, e. g., Furnco Construction Co. v. Waters, 438 U.S. 567, 580, 98 S.Ct. 2943, 57 L.Ed.2d 957 (1978) (discriminatory “animus”); Teamsters v. United States, supra, 431 U.S. at 335-36 n.15, 97 S.Ct." }, { "docid": "21911243", "title": "", "text": "because of his age, or (2) defendant regarded age as a negative factor in such consideration.” 656 F.2d at 130. Once the plaintiff has made a prima facie case, disparate treatment occurs when the employer treats some people less favorably than others because of race, color, religion, sex or national origin. International Brotherhood of Teamsters v. United States, 431 U.S. 324, 335-36 n.15, 97 S.Ct. 1843, 1854-55 n.15, 52 L.Ed.2d 396 (1977). The burden then shifts to the employer to go forward with evidence of “some legitimate, nondiscriminatory reason for the employee’s rejection.” McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973). If that is done, the plaintiff, who has the ultimate burden, is then afforded the opportunity to demonstrate by competent evidence that the employer’s presumptively valid reasons are a coverup or pretext. 411 U.S. at 805, 93 S.Ct. at 1825. A disparate impact case results when employment practices that are facially neutral in their treatment of different groups fall more harshly on one group than another and cannot be justified by business necessity. Dothard v. Rawlinson, 433 U.S. 321, 329, 97 S.Ct. 2720, 2726, 53 L.Ed.2d 786 (1977); Albemarle Paper Company v. Moody, 422 U.S. 405, 425, 95 S.Ct. 2362, 2375, 45 L.Ed.2d 280 (1975); Griggs v. Duke Power Co., 401 U.S/ 424, 431, 91 S.Ct. 849, 853, 28 L.Ed.2d 158 (1971). One of the critical differences between this type case and a disparate treatment case is that proof of discriminatory motive is not required under a disparate impact theory. Griggs v. Duke Power Co., 401 U.S. 424, 432, 91 S.Ct. 849, 854, 28 L.Ed.2d 158 (1971). Once the plaintiff has established that an employment practice results in disparate impact on a protected group, the burden shifts to the employer to show that the practice has a manifest relationship to the employment in question, the touchstone being business necessity and successful job performance. Dothard v. Rawlinson, 433 U.S. 324, 329, 97 S.Ct. 2720, 2726, 53 L.Ed.2d 786 (1977). Notwithstanding which theory is being asserted the prima facie case serves an" }, { "docid": "23650991", "title": "", "text": "though the parties characterize them differently. Neither party asserts that summary judgment was inappropriate. The district court interpreted the statute and applied it to stipulated facts. The standard of review is de novo. Turner v. Prod, 707 F.2d 1109, 1114 (9th Cir.1983). See also M/V American Queen v. San Diego Marine Construction Corp., 708 F.2d 1483, 1487 (9th Cir. 1983): “In reviewing a grant of summary judgment, our task is identical to that of the trial court.” B. Age discrimination 1. Introduction The Age Discrimination in Employment Act forbids an employer to “discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age.” 29 U.S.C. § 623(a)(1). Plaintiffs alleging age discrimination can proceed under “disparate treatment” or “disparate impact” theories. Douglas v. Anderson, 656 F.2d 528, 531 & n. 1 (9th Cir.1981). The chief difference between them is that disparate treatment involves discriminatory intent, whereas intent need not be shown in a disparate impact case. International Brotherhood of Teamsters v. United States, 431 U.S. 324, 335 n. 15, 97 S.Ct. 1843, 1854 n. 15, 52 L.Ed.2d 396 (1977). Many disparate treatment cases, including McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), concern a decision to hire, fire, or promote a particular job applicant or employee. Since these disputes usually focus on the employer’s true motive, proof of discriminatory intent is crucial. By contrast, disparate impact cases typically involve an employment test or criterion or other general policy. Beginning with Griggs v. Duke Power Co., 401 U.S. 424, 431-2, 91 S.Ct. 849, 853-4, 28 L.Ed.2d 158 (1971), the Supreme Court has struck down employment policies that unduly harm the members of a protected group, regardless of the employer’s intent. See also Albemarle Paper Co. v. Moody, 422 U.S. 405, 95 S.Ct. 2362, 45 L.Ed.2d 280 (1975); Dothard v. Rawlinson, 433 U.S. 321, 97 S.Ct. 2720, 53 L.Ed.2d 786 (1977); Connecticut v. Teal, 457 U.S. 440, 102 S.Ct. 2525, 73 L.Ed.2d 130 (1982). The EEOC raised both sorts of claims. The district court rejected the disparate" }, { "docid": "20982780", "title": "", "text": "Jenkins’ race discrimination claim. The United States Supreme Court defined these two theories in International Bhd. of Teamsters v. United States: “Disparate treatment” ... is the most easily understood type of discrimination. The employer simply treats some people less favorably than others because of their race, color, religion, sex, or national origin. Proof of discriminatory motive is critical, although it can in some situations be inferred from the mere fact of differences in treatment____ Claims of disparate treatment may be distinguished from claims that stress “disparate impact.” The latter involve employment practices that are facially neutral in their treatment of different groups but that in fact fall more harshly on one group than another and cannot be justified by business necessity. Proof of discriminatory motive, we have held, is not required under a disparate-impact theory. Either theory may, of course, be applied to a particular set of facts. 431 U.S. 324, 335 n. 15, 97 S.Ct. 1843, 1854 n. 15 (1977) (citations omitted). In summary, the disparate treatment theory focuses on the employer’s motivation; the disparate impact theory focuses on the consequences of the employer’s conduct. Id.; compare, e.g. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-06, 93 S.Ct. 1817, 1824-26, 36 L.Ed.2d 668 (1973), with Griggs v. Duke Power Co., 401 U.S. 424, 430-32, 91 S.Ct. 849, 853-55, 28 L.Ed.2d 158 (1971). 1. Disparate treatment The typical fashion for establishing a prima facie case of disparate treatment under Title VII is to apply the burden-shifting analysis found in McDonnell Douglas and its progeny. See, e.g., Wileman v. Frank, 979 F.2d 30, 33 (4th Cir.1992) (applying this analysis to disparate treatment claims under Title VII generally); Donoghue v. Orange County, 828 F.2d 1432, 1439 (9th Cir.1987) (McDonnell Douglas analysis applicable to all disparate treatment claims under Title VII), as superseded and amended, 848 F.2d 926, 932 (9th Cir.1987). Analysis of a claim of disparate treatment on the basis of race under Iowa law is analyzed in the same fashion. See Iowa Civil Rights Comm’n v. Woodbury County Community Action Agency, 304 N.W.2d 443, 448 (Iowa App.1981). The activities Jenkins" }, { "docid": "23650992", "title": "", "text": "n. 15, 97 S.Ct. 1843, 1854 n. 15, 52 L.Ed.2d 396 (1977). Many disparate treatment cases, including McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), concern a decision to hire, fire, or promote a particular job applicant or employee. Since these disputes usually focus on the employer’s true motive, proof of discriminatory intent is crucial. By contrast, disparate impact cases typically involve an employment test or criterion or other general policy. Beginning with Griggs v. Duke Power Co., 401 U.S. 424, 431-2, 91 S.Ct. 849, 853-4, 28 L.Ed.2d 158 (1971), the Supreme Court has struck down employment policies that unduly harm the members of a protected group, regardless of the employer’s intent. See also Albemarle Paper Co. v. Moody, 422 U.S. 405, 95 S.Ct. 2362, 45 L.Ed.2d 280 (1975); Dothard v. Rawlinson, 433 U.S. 321, 97 S.Ct. 2720, 53 L.Ed.2d 786 (1977); Connecticut v. Teal, 457 U.S. 440, 102 S.Ct. 2525, 73 L.Ed.2d 130 (1982). The EEOC raised both sorts of claims. The district court rejected the disparate treatment argument, stated that “[plaintiff's arguments are more properly considered under a disparate impact theory,” 551 F.Supp. at 1098, and found that Borden had discriminated against its older workers. Id. at 1099. While we do not disagree with the district court’s disparate impact analysis, we also hold that the EEOC is entitled to prevail under the disparate treatment theory. 2. Disparate treatment Borden’s severance pay policy denied a benefit to certain employees because they were age 55 or older. The discrimination was intentional in the sense that Borden purposefully drafted its severance pay policy to have this effect. We need look no further for the intent necessary to support a finding of discrimination under the disparate treatment theory. In so holding we adhere to our approach in Norris v. Arizona Governing Committee, 671 F.2d 330 (9th Cir.1982), aff’d. in relevant part,-U.S. -, 103 S.Ct. 3492, 77 L.Ed.2d 1236 (1983), a case that, like the present one, concerns employee benefits. There we stated that “facially discriminatory practices are intentional discrimination for the purposes of Title VII" }, { "docid": "10884504", "title": "", "text": "Fiscal Assistance Act, 31 U.S.C. § 1242(a). Since the standards of proof for establishing claims of employment discrimination under the cited statutes differ, the Court turns first to a review of the applicable law. Claims of employment discrimination on account of race may arise in two different ways. The claim may be based on an allegation that the employer simply treats members of the protected class less favorably than white persons. This type of claim has been referred to as a “disparate treatment” claim. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Or, the claim may be based on an allegation that a practice or policy, neutral on its face, in fact impacts more harshly on the protected class than on members outside that class. This is known as a “disparate impact” claim. Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971). See also International Brotherhood of Teamsters v. United States, 431 U.S. 324, 335-36, n. 15, 97 S.Ct. 1843, 1854-55 n. 15, 52 L.Ed.2d 396 (1977). To establish a “disparate treatment” claim of racial discrimination under Title VII of the 1964 Civil Rights Act, plaintiffs must prove not only that they were treated differently and less favorably than similarly situated white employees, they must also prove that such different treatment was prompted by a discriminatory intent on the part of the employer — that is, that the employer treated them differently because of their race. Teamsters, supra. Of course, in some situations, discriminatory motive may be inferred from the mere fact of differences in treatment. Schwabenbauer v. Board of Education of City School District of Olean, 667 F.2d 305 (2d Cir.1981). To establish a “disparate impact” claim of racial discrimination under Title VII proof of discriminatory motive or intent is not required. Teamsters, supra; Schwabenbauer, supra. The same standards apply to discrimination claims brought under the State and Local Fiscal Assistance Act, 31 U.S.C. § 1242. United States v. City of Chicago, 549 F.2d 415, 439-40 (7th Cir.1977), cert. denied, 434 U.S. 875, 98 S.Ct. 225," }, { "docid": "910877", "title": "", "text": "articulate their theory, they seem to be relying on a disparate impact theory. We have determined, however, that the plaintiffs’ complaint raises both disparate impact and disparate treatment claims. The methods of proving these Title VII theories differ. The disparate impact theory does not require proof of discriminatory intent. Instead, it focuses on the consequences of the employment practice. Griggs v. Duke Power Co., 401 U.S. 424, 432, 91 S.Ct. 849, 854, 28 L.Ed.2d 158 (1971), B. Schlei & P. Grossman, Employment Discrimination Law, at 1158 (1976). Plaintiffs’ claim that the union encouraged racially discriminating practices in promotion examinations is a disparate-impact claim. Thus, if they had been able to show that the test had a disparate effect on minorities, they did not need to prove discriminatory intent. In contrast, the disparate treatment theory of Title VII requires proof of intent. The “ultimate focus of the inquiry, and thus the proof, is whether or not the decision or action in question was ‘racially premised.’ In other words, motivation and intent are the ultimate issue-whether ‘the presumptively valid reasons for [the] rejection were in fact a coverup for a racially discriminatory decision’.. .. ” B. Schlei & P. Grossman, Employment Discrimination Law, at 1153-54 (1976), citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 805, 93 S.Ct. 1817, 1825, 36 L.Ed.2d 668 (1973); see Teamsters v. United States, 431 U.S. 324, 335 n.15, 97 S.Ct. 1843, 1854 n.15, 52 L.Ed.2d 396 (1976). The other acts which the plaintiffs cite as exemplary of the Title VII and unfair representation claims fall within the disparate treatment category. Thus, in reviewing whether there was substantial evidence to support the court’s finding of no Title VII violation, we look at different threshold facts. We find substantial evidence to support the conclusion of “no Title VII violation” under both theories. Hiring the Defense Attorney in Hull. Plaintiffs argue that the union’s payment of defense costs in Hull, out of dues and assessments collected in part from the Hull plaintiffs, was discriminatory. Plaintiffs argue that “to fairly represent all its members, [the union] should not have retained" } ]

[ { "docid": "15231188", "title": "", "text": "complaint expressly designates an individual capacity suit through reliance on Akins v. Board of Governors of State Colleges and Universities, 840 F.2d 1371 (7th Cir.1988), vacated 488 U.S. 920, 109 S.Ct. 299, 102 L.Ed.2d 319, on remand 867 F.2d 972 (7th Cir.1988) (opinion reinstated as to the named plaintiff). See Majority Opinion at 1373. In Akins, as is clear from the portion the majority quotes, the issue was “whether the plaintiffs abandoned their claim for injunctive relief against the defendants in their official capacities,” Akins, 840 F.2d at 1377 (emphasis added), by stating in a pleading that they were “suing the defendant state officials in their individual capacities and not in their official capacities.” Id. The Court found that since the plaintiffs continued to press their claims for injunctive relief, the district court erred in holding that they abandoned the claim. Significantly, the issue of whether a party has abandoned a claim fails to raise the crucial issue at stake here of notice to a defendant that he is being sued personally. Thus Akins provides no support for allowing an amendment nearly two and one half years after the statute of limitations to relate back to the time of filing the initial complaint. The amendment of a pleading from one of an official capacity suit to an individual capacity proceeding, in effect, converts the lawsuit from one against the government to one against Shelander, the individual. Quoting the Supreme Court's explication of the distinction between personal capacity and official capacity suits in Kentucky v. Graham, 473 U.S. 159, 165, 105 S.Ct. 3099, 3105, 87 L.Ed.2d 114 (1985), the majority observes: “As characterized by the Supreme Court, ‘[pjersonal-capacity suits seek to impose personal liability upon a government official for actions he takes under color of state law. * * * * * Official-capacity suits, in contrast, “generally represent only another way of pleading an action against an entity of which an officer is an agent.” ’ ” Majority Opinion at 1372-1373 (citations omitted). As the Supreme Court went on to explain in Graham: “As long as the government entity receives notice" } ]

[ { "docid": "4580891", "title": "", "text": "4(f) claims — claims arising under § 4(f) of the Department of Transportation Act, 49 U.S.C. § 303. The court granted summary judgment to Defendants on all other claims raised by Plaintiffs, which include Plaintiffs' remaining § 4(f) claims, all claim[s] arising under the National Environmental Policy Act, 42 U.S.C. § 4321 et seq., and all claims arising under § 106 of the National Historic Preservation Act, 16 U.S.C. § 470f. In entering its partial permanent injunction, the court has considered the well-recognized equitable factors that apply, see, e.g., Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 130 S.Ct. 2743, 2756, 177 L.Ed.2d 461 (2010), and finds that, to the extent Defendants!)] actions are enjoined, the four-factor test, on balance favors Plaintiffs, including: (1) irreparable injury[;] (2) the inadequacy of monetary relief; (3) the balance of hardships; and (4) the public interest. IT IS, THEREFORE, ADJUDGED that this matter is remanded to the Federal Transit Administration, but without vacatur of the Record of Decision, to comply with the court’s Summary Judgment Order. DEFENDANTS, their officers, agents, servants, employees, and attorneys; and all other persons who are in active concert or participation with them, are hereby restrained and enjoined from conducting any construction activities and real estate acquisition activities in Phase 4 of the Honolulu High-Capacity Transit Corridor Project (the \"Rail Project”). This injunction on Phase 4 construction activities shall terminate 30 days after Defendant Federal Transit Administration files with the court notice of Defendants’ compliance with the Summary Judgment Order and evidence of such compliance, unless Plaintiffs file an objection within said 30-day period specifying how the Federal Transit Administration has failed to comply with the Summary Judgment Order. If such objection is timely filed, this injunction shall remain in effect pending the court's resolution of Plaintiffs’ objection(s). This injunction shall not prohibit, and Defendants may prepare, Phase 4 engineering and design plans, conduct geotechnical training, and conduct other preconstruction activities, including any activities that are appropriate to complete the additional analysis required by the Summary Judgment Order. This injunction shall not apply to Phases 1 through 3 of" }, { "docid": "8514476", "title": "", "text": "the law, and parse out the portions accordingly. And, the collateral consequences of that — here ripening from a proceeding that has veered far over into arcane areas of labor law — must be what they must be as well. Without predilection, and only after a very difficult and searching evaluation of what is “right,” what is “legal,” and how they have to intersect, the Court has performed its function in a dispute that has been maddeningly intractable to date. The parties may do with the results what they may. This is an injunction issued by a federal court, enforceable as appropriate. There is still hope for this company, but turning that to reality is once again up to the Debtor and the Unions alike. ORDER On the memorandum of decision just made, 1. Pending entry of final judgment in this adversary proceeding, Defendants Air Line Pilots Association, International, the Association of Flight Attendants-CWA, AFL-CIO, and the Aircraft Mechanics Fraternal Association, together with the named individual Defendants in their official capacities as officers, agents, or employees of ALP A, the AFA, and AMFA, and together with their agents, successors, deputies, servants, and employees, and all organizations and persons acting in concert with them, are enjoined from calling, permitting, engaging in, instigating, encouraging, participating in, authorizing, or approving self-help of any kind, including but not limited to any strike, work stoppage, action that Defendant AFA names “Create Havoc Around Our System” or “CHAOS,” sick-out, slow-down, or other concerted refusal to perform normal employment duties. 2. All of the Defendants named in Term 1 and all other persons acting in concert with them shall take all reasonable steps within their power to prevent the actions described above, and shall refrain from continuing such actions if commenced. 3. Defendants ALPA, the AFA, and AMFA shall notify, by the most expeditious means possible, all of the employees of the Plaintiff who are members of those organizations, of the issuance, contents, and meaning of this injunction, and shall provide a copy of all such notices to counsel for the Plaintiff. 4. The injunction set forth" }, { "docid": "13886012", "title": "", "text": "That plaintiffs’ motion for a permanent injunction filed on May 29, 1992, is granted; (5) That defendants — Cannon Oil Company, Thomas Shirley, Home Oil Company, James Sheffield, Sheffield Oil Company, and Rodney Parrish — their officers, agents, servants, employees, and those persons in active concert or participation with them who receive actual notice of this injunction by personal service or otherwise, are each ENJOINED and RESTRAINED from agreeing, directly or indirectly, to fix the retail price of gasoline in Dothan, Houston County, Alabama; (6) That defendants are DIRECTED to file with the court by December 8, 1993, supplemental language to be included in the injunction; and (7) That the injunction entered this date shall expire on November 19, 1996. It is further ORDERED that the United States Marshal for the Middle District of Alabama or his representative shall personally serve a copy of this order and injunction on defendants Cannon Oil Company, Thomas Shirley, Home Oil Company, James Sheffield, Sheffield Oil Company, and Rodney Parrish. It is further ORDERED that the clerk of the court shall issue a writ of injunction. . Vernon Cannon died after this litigation began. His wife Metha Jean Cannon replaced him as a defendant in her capacity as executrix of his estate. For ease of discussion, the court will continue to refer to Mr. Cannon as the defendant. . Coleman v. Cannon Oil Co., 141 F.R.D. 516, 519 (M.D.Ala.1992). The court, however, denied plaintiffs’ request to certify a plaintiff class with regard to \"injunctive relief.” Id. Also, the City of Dothan is within Houston County, Alabama. . Order of March 4, 1993. . Order of January 30, 1992, 1992 WL 111584. . Order of June 17, 1992. . Order of April 20, 1993. . After the trial, plaintiffs asked the court to reconsider its order granting summary judgment in favor of Southeastern Oil Company, Herndon Oil Company, McGee Oil Company, and Davis & Harp Oil Company. Plaintiffs also asked the court to add new individual defendants. Plaintiffs contended that the trial evidence reflected that these persons and companies were part of the trial defendants’" }, { "docid": "14810748", "title": "", "text": "McKeon and Burke “[Ojfficial-capacity suits generally represent only another way of pleading an action against an entity of which an officer is an agent.” Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691 n. 55, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). To succeed on a claim against a municipal officer in their official capacity, the plaintiff “must still show that a [municipal] custom, policy or practice was the moving force behind the alleged constitutional violations.” Escobar v. City of New York, No. l:05-cv-3030, 2007 WL 1827414, at *3, 2007 U.S. Dist. LEXIS 45952, at *9 (E.D.N.Y. June 24, 2007) (citing Barry v. New York City Police Dep’t, No. 01-cv-10627, 2004 WL 758299, at *9 (S.D.N.Y. Apr. 7, 2004)). As such, “[a] suit for damages against a municipal officer in their official capacity is the equivalent of a damage suit against the municipality itself.” Escobar, 2007 WL 1827414, at *3, 2007 U.S. Dist. LEXIS 45952, at *9-10 (citing Will v. Michigan Dep’t of State Police, 491 U.S. 58, 71, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989)) (emphasis in original); see also Orange v. County of Suffolk, 830 F.Supp. 701, 706 (E.D.N.Y.1993) (“A suit against a municipal officer in his official capacity is functionally equivalent to a suit against the entity of which the officer is an agent”). “Based upon the understanding that it is duplicative to name both a government entity and the entity’s employees in their official capacity, courts have routinely dismissed corresponding claims against individuals named in their official capacity as ‘redundant and an inefficient use of judicial resources.’ ” DeJean v. County of Nassau, No. CV-06-6317, 2008 WL 111187, at *5, 2008 U.S. Dist. LEXIS 4291, at *14 (E.D.N.Y. Jan. 8, 2008) (quoting Escobar, 2007 WL 1827414, at *3, 2007 U.S. Dist. LEXIS 45952, at *10) (citing cases). Based on the foregoing, to the extent the individual defendants, McKeon and Burke, are being sued in their official capacities, any claims against them are “merely duplicative of the action against the [Village].” Escobar, 2007 WL 1827414, at *3, 2007 U.S. Dist. LEXIS 45952, at *10 (citing cases)." }, { "docid": "6172271", "title": "", "text": "bar monetary damages. Plaintiffs’ Response to Motion to Dismiss at 3-4; R.11 at 3-4. 2) The state officers named as defendants in the case at bar are therefore neither immune from prospective injunc-tive relief nor, because sued in their individual capacity, from retroactive monetary relief. Id. at 5. Moreover, in their objections to the magistrate’s report, the plaintiffs specifically acknowledged the continued vitality of their claim for injunctive relief: Magistrate Bucklo has recommended Count I stand to the extent it requests prospective injunctive relief against the officials, regardless of whether they are being sued as state officials or as individuals. Plaintiffs’ Objections to Report And Recommendation of Magistrate Bucklo at 2; R.25 at 4. An action for prospective injunctive relief against a state official is brought properly in the official’s official capacity. As the court noted in Scott v. Lacy, 811 F.2d 1153 (7th Cir.1987): As a practical matter, a public official who is a defendant in a suit seeking an injunction is not “on trial” at all. The suit seeks relief against him in his official capacity; he need not attend the trial, which will be conducted by attorneys representing the governmental body. If he leaves office during the interim, he leaves the case behind and his successor becomes the party. Id. at 1153-54. Therefore, we need not deal extensively with the district court’s conclusion that the doctrine of qualified immunity can shield a defendant from suit seeking injunctive relief in his individual capacity. We only note that the Supreme Court has only applied the immunity doctrine in suits for damages. See Harlow, 457 U.S. at 806, 102 S.Ct. at 2732 (“[0]ur decisions consistently have held that government officials are entitled to some form of immunity from suits for damages.”). At least three courts of appeals have explicitly noted that qualified immunity is inapplicable to actions seeking equitable relief. See, e.g., De Abadia v. Izquierdo Mora, 792 F.2d 1187, 1188 n. 1 (1st Cir.1986) (“Qualified immunity is, of course, no defense to equitable relief.”); Tubbesing v. Arnold, 742 F.2d 401, 403-04 (8th Cir.1984) (“[T]he Board members’ qualified immunity defense" }, { "docid": "23664469", "title": "", "text": "relationship between appellants and Thomas Lucas, the other individual named in the injunction. The evidence shows that he served as “legal consultant” to Webster Dictionary Company and served in the same capacity to Webster Publishing. Although named in the injunction, Lucas was not named in the show cause order or the adjudication of contempt. We do not consider whether there may be circumstances in which persons may be held in contempt for aiding and abetting a party who is not also held in contempt. In any event, the order now on appeal cannot be sustained on the theory that appellants aided and abetted Lucas in violation of the injunction. Appellee did not seek to develop the case on this theory, either before the district court or before this court, and the record is thus devoid of essential findings, even if the legal theory should be determined to be valid. B. Was George Hoskins legally identified with one or more of the enjoined parties? Fed.R.Civ.P. 65(d) provides in pertinent part that an order granting an injunction “is binding only upon the parties to the action, their officers, agents, servants, employees, and attorneys, and upon those persons in active concert or participation with them who receive actual notice of the order by personal service or otherwise.” It might be argued that, in view of Rule 65(d), only “officers, agents, servants, employees, and attorneys” can now be determined to be within the group that Alemite referred to as “legally identified with” a party. Such a narrow reading of Rule 65(d) is inappropriate, however, in light of the fact that this rule is derived from the common-law doctrine that a decree of injunction not only binds the parties defendant but also those identified with them in interest, in “privity” with them, or subject to their control. Its essence is that defendants may not nullify a decree by carrying out prohibited acts through aiders and abettors, although they were not parties to the original proceeding. Regal Knitwear, 324 U.S. at 14, 65 S.Ct. at 481 (1945). With respect to persons who may be legally identified" }, { "docid": "16096029", "title": "", "text": "suit for injunctive relief can be pursued against a tribal official in his official capacity so long as plaintiff can maintain a cause of action under the applicable statute. See Garcia v. Akwesasne Hous. Auth., 268 F.3d 76, 87-88 (2d Cir.2001); see also Frazier v. Turning Stone Casino, 254 F.Supp.2d 295, 310 (N.D.N.Y.2003) (“Ex parte Young offers a limited exception to the general principle of state sovereign immunity and has been extended to tribal officials acting in their official capacities ... but only to enjoin conduct that violates federal law.”); Bassett v. Mashantucket Pequot Museum and Research Ctr. Inc., 221 F.Supp.2d 271, 278-79 (D.Conn.2002) (“[UJnder the doctrine of Ex parte Young, prospective injunctive or declaratory relief is available against tribal officials when a plaintiff claims an ongoing violation of federal law or claims that a tribal law or ordinance was beyond the authority of the Tribe to enact.”). In the instant case, although the State commenced the action alleging violations of New York anti-gaming and environmental law, Judge Platt held in his denial of the State’s remand motion that the lawsuit raised federal claims related to IGRA, possessory interests of an Indian tribe with respect to Indian land, and the tribal status of the Shinnecock. (Memorandum and Order, at 3-5.). Thus, given the federal questions found by Judge Platt, the State may sue tribal officials for prospective injunctive relief pursuant to Ex parte Young and such defendants do not have a defense of sovereign immunity. In sum, for the reasons set forth above, the Nation cannot assert sovereign immunity as a defense to the instant lawsuit. F. Necessity for Permanent Injunctive Relief Plaintiffs seek a permanent injunction enjoining and restraining defendants from engaging in any further or additional site preparation, construction, development, or gaming-related activities at Westwoods, in furtherance of their announced intention to construct and operate a casino on Westwoods, and from otherwise violating state or local gaming, environmental, land use, and zoning laws with respect to Westwoods. As discussed below, the Court concludes that the requirements for permanent injunctive relief have been satisfied by the plaintiffs. “A party" }, { "docid": "14810749", "title": "", "text": "45 (1989)) (emphasis in original); see also Orange v. County of Suffolk, 830 F.Supp. 701, 706 (E.D.N.Y.1993) (“A suit against a municipal officer in his official capacity is functionally equivalent to a suit against the entity of which the officer is an agent”). “Based upon the understanding that it is duplicative to name both a government entity and the entity’s employees in their official capacity, courts have routinely dismissed corresponding claims against individuals named in their official capacity as ‘redundant and an inefficient use of judicial resources.’ ” DeJean v. County of Nassau, No. CV-06-6317, 2008 WL 111187, at *5, 2008 U.S. Dist. LEXIS 4291, at *14 (E.D.N.Y. Jan. 8, 2008) (quoting Escobar, 2007 WL 1827414, at *3, 2007 U.S. Dist. LEXIS 45952, at *10) (citing cases). Based on the foregoing, to the extent the individual defendants, McKeon and Burke, are being sued in their official capacities, any claims against them are “merely duplicative of the action against the [Village].” Escobar, 2007 WL 1827414, at *3, 2007 U.S. Dist. LEXIS 45952, at *10 (citing cases). Accordingly, the plaintiffs claims against the individual defendants in their official capacities, pursuant to 42 U.S.C. §§ 1981 and 1983 should be dis missed. See DeJean, 2008 WL 111187, at *5, 2008 U.S. Dist. LEXIS 4291, at *14 (dismissing claims against individual defendants in their official capacities as “duplicative and redundant” of the claim against the County); Escobar; 2007 WL 1827414, at *3-4, 2007 U.S. Dist. LEXIS 45952, at *11 (same); Orange, 830 F.Supp. at 707 (same). VI. The Sections 1981 and 1988 Discrimination and Monell Claims As stated supra, Section 1981 and Section 1983 discrimination and retaliation claims are analyzed the same as Title VII claims. See Davis, 2006 WL 657038, at *8, n. 12. However, plaintiff must also demonstrate that the discrimination was intentional. See Patterson, 375 F.3d at 226. Unlike Title VII, individuals may be held liable under Sections 1981 and 1983 “for certain types of discriminatory acts.” Id. In addition, where the defendant alleged to have discriminated or retaliated against an employee under Sections 1981 or 1983 is a municipality, a" }, { "docid": "18419100", "title": "", "text": "as defendants \"Duke Pontin” doing business as Spirit and \"Duke Pontin, individually.” As an initial matter, the Court notes that the claims asserted against Duke Pontin in his capacity as an officer of the corporate defendants are, in essence, \"another way of pleading an action against [the] entities] of which [Pontin] is an agent.” Kentucky v. Graham, 473 U.S. 159, 165, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985) (citations omitted). Accordingly, such claims are, “in all respects other than name, to be treated as a suit against the entity.” Id. at 166, 105 S.Ct. 3099. . As an initial matter, the Court takes judicial notice of documents filed in the Florida Action and orders issued by the state court in that action. In considering a motion to dismiss, \"courts routinely take judicial notice of documents filed in other Courts ... not for the truth of the matters asserted in other litigation, but rather to establish the fact of such litigation and related filings.\" Kramer v. Time Warner Inc., 937 F.2d 767, 774 (2d Cir.1991); see Carmellino v. Dist. 20 of the N.Y. City Dep’t of Educ., No. 03-CV-5942 (PKC), 2004 WL 736988, at *2, 2004 U.S. Dist. LEXIS 5754, at *5 (S.D.N.Y. April 5, 2004). Thus, in this case, the Court takes judicial notice of the documents from the Florida Action, including the complaint, the temporary injunction, and the order modifying the temporary injunction, not for the truth of the matters asserted therein but to establish the fact of such filings or orders. See Washington v. United States Tennis Ass’n, 290 F.Supp.2d 323, 326 (E.D.N.Y. 2003) (\"[The court] is permitted to take judicial notice of court documents from previous actions.”); World Wrestling Entertainment, Inc. v. Jakks Pacific, Inc., 425 F.Supp.2d 484, 508 n. 16 (S.D.N.Y.2006) (noting that, when considering a motion to dismiss under Rule 12(b), \"the Court properly can take judicial notice of the filings and [an] Order in the Connecticut state court action”) (citing Green v. Warden, U.S. Penitentiary, 699 F.2d 364, 369 (7th Cir.1983) (\"[F]ederal courts may also take notice of proceedings in other courts, both within" }, { "docid": "14309232", "title": "", "text": "funds for the allegedly unconstitutional purpose that provides the link between taxpayer and expenditure necessary to support standing. We are well aware of the time and energy that the parties and the district court have expended on the merits of this matter. However, “[i]f a dispute is not a proper case or controversy, the courts have no business deciding it, or expounding the law in the course of doing so.” Cuno, 126 S.Ct. at 1860-61. Conclusion For the foregoing reasons, we reverse the district court’s judgment, and we remand the case to the district court with instructions to dismiss for want of jurisdiction. The Speaker may recover his costs in this court. REVERSED AND REMANDED WITH INSTRUCTIONS . The parties stipulated that members of the public seated in the balcony are “discouraged] from leaving the balcony during the Pledge of Allegiance or the Invocation so as to minimize noise. However, if any individual indicates that he or she objects to the prayer or Pledge or if the individual expresses a desire to leave immediately the individual will be allowed to leave freely.” R.17 at 1-2. . An exception to this typical arrangement occurs when the Speaker has sponsored the cleric of the day. . Specifically, the district court decreed: 1. That defendant Speaker of the House of Representatives of the Indiana General Assembly, in his official capacity, is permanently enjoined from permitting sectarian prayers to be offered as part of the official proceedings of the House of Representatives. If the Speaker chooses to continue to permit non-sectarian prayers as part of the official proceedings, he shall advise all persons offering such prayers (a) that the prayers must be non-sectarian and must not be used to proselytize or advance any one faith or belief or to disparage any other faith or belief, and (b) that the prayers should not use Christ’s name or title or any other denominational appeal. This injunction applies to the Speaker, and to his agents, servants, employees, and attorneys, and all other persons in active concert with them who receive actual notice of this injunction by personal" }, { "docid": "18388754", "title": "", "text": "its offices and officers, shall in accordance with law provide assistance to strengthen the capacity of the state, local communities, governments, and area-wide organizations to meet with their own needs through the preparation and implementation of programs of balanced growth and development. The department shall serve as the state clearing house for federal domestic assistance programs and coordinate intergovernmental relations between and among local, state, and federal governmental entities. The secretary of urban and community affairs is appointed by the governor with the consent of the Louisiana Senate, serves at the pleasure of the governor, and performs his functions under the supervision of the governor. La.R.S. 36:553. The secretary represents the public interest in the administration of the department, and is responsible to the governor, the legislature and the public. He also acts as the agent of the state in matters concerning federal funds. La.R.S. 36:554. The office of consumer protection which is part of the department, performs the functions of the state relating to consumer protection, including investigating consumer complaints, conducting hearings on commercial practices in the sale of goods or services for consumer use, and advising the attorney general with respect to unlawful methods of competition. La. R.S. 36:558. The plaintiffs’ action is brought pursuant to the Louisiana Unfair Trade Practices and Consumer Protection Law, La.R.S. 51:1401-18. That law provides, inter alia, that the office of consumer protection shall advise the attorney general of the state with respect to any unfair method of trade, La.R.S. 51:1404 A(5). The attorney general may bring an action for injunctive relief in the name of the state against a person to restrain the use of an unfair trade practice, La.R.S. 51:1407. Any person who suffers as a result of an unfair trade practice may bring an action individually, but not in a representative capacity, for damages, La. R.S. 51:1409. Under these provisions and Michaelson v. Motwani, 372 So.2d 726 (La.App. 4 Cir. 1979) the state alone is entitled to injunctive relief. The plaintiff now seeks to have this suit remanded to state court. On a motion to remand the removing party has" }, { "docid": "16095722", "title": "", "text": "complaints in these consolidated actions were filed, an elected Trustee and official of the Nation, and was sued by the State in his official capacity only. (Stip. No. 6.) By Order of this Court dated April 17, 2007, Mr. Eleazer was dismissed from this action as a defendant, and Randall King was substituted as a party defendant in the place of Mr. Eleazer. Defendant Lance A. Gumbs was, at the time the complaints in these consolidated actions filed, and is now an elected Trustee and official of the Nation, and is being sued by the State in his official capacity only. (Stip. No. 7.) Defendant Frederick C. Bess was, at the time the complaints in these consolidated actions were filed, chairman of the Shinnecock Nation Casino at Westwoods Authority, and is now an elected Trustee of the Nation, and is being sued by the State in his official capacity only. (Stip. No. 8.) By Stipulation and Order of this Court dated March 21, 2007, Karen Hunter, who is currently Chairman of the Shinnecock Nation Gaming Authority (the “Gaming Authority”), formerly known as the Shinnecock Nation Casino at Westwoods Authority, was substituted as a party defendant in this action in the place of Phillip D. Brown, V, who was the successor to defendant Mr. Bess as Chairman of the Gaming Authority. B. The Westwoods Parcel The Shinnecock Tribe owns a parcel of land, commonly known as “Westwoods,” which is approximately 80 acres in total area, located in the Hampton Bays area within the boundaries of the Town. (Stip. No. 15.) Westwoods is located approximately 85 miles east of New York City. (Stip. No. 37.) Westwoods consists of three tax lots: (a) Suffolk County Tax Map, District No. 0900, Section 186, Block No. 2, Lot No. 38 (“Parcel A”); (b) Suffolk County Tax Map, District No. 0900, Section 187, Block No. 2, Lot No. 78 (“Parcel B”); and (c) Suffolk County Tax Map, District No. 0900, Section 207, Block No. 1, Lot No. 1 (“Parcel C”). (Stip. No. 16; D259, at 4; D156 a, b, c, d.) Parcel A is property to" }, { "docid": "18386363", "title": "", "text": "State” and the plaintiff having offered no evidence to the contrary, the court holds that the Eleventh Amendment bars the plaintiff from maintaining any suit against the university in federal court. III. Claims Against The Trustee Defendants A. The plaintiff purports in his amended complaint to have brought suit against the trustees in both their official and individual capacities. See Amended Complaint ¶ 3; cf Complaint (filed Sept. 28, 1984) ¶ 3 (describing trustees as “defendants in their official capacities”). However, the trustee defendants contend that they have been sued only in their official capacities, inasmuch as the plaintiff served process on the trustee defendants only through the Connecticut Attorney General. It is conceded that such service was effective against the trustee defendants in their official capacities. A state or governmental entity thereof may be served with process “in the manner prescribed by the law of that state,” see Rule 4(d)(6), Fed.R.Civ.P., and Connecticut law authorizes the Attorney General to accept service on behalf of the state and “any officer, servant, agent or employee of the slate ..., as such.” C.G.S. § 52-64 (emphasis added). However, the trustee defendants were not served with process in their individual capacities by any of the methods authorized by Rules 4(d)(1), (6) and (7), Fed.R.Civ.P. A similar situation was presented to the Court of Appeals in Jackson v. Hayakawa, 682 F.2d 1344 (9th Cir.1982), an action against members of the Board of Trustees of San Francisco State College. The original complaint as well as the first and second amended complaints appeared to sue the defendants only in their official capacities, whereas the third and fourth amended complaints stated in their captions that the defendants were sued in both their official and personal capacities. The third and fourth amended complaints were served on the California Attorney General, who was representing the trustees in their official capacities, but were not served on the trustees personally or by any of the other methods authorized by Rule 4(d). The Court of Appeals held that service of the third and fourth amended complaint on the Attorney General was insufficient" }, { "docid": "15015805", "title": "", "text": "Hair Removal, Inc. v. Assara I LLC, No. 08-CV-0442 (DLC), 2016 WL 815205, at *14 (S.D.N.Y. Feb. 29, 2016); cf. Beechwood Restorative Care Ctr. v. Thompson, 494 F.Supp.2d 181, 187 (W.D.N.Y. 2007) (finding mootness where a nursing home had closed and its state operating license had been revoked). Accordingly, Coty’s request for injunctive relief is not moot. Excell also argues that Coty has not met its burden of demonstrating that the “injunction could be enforceable against any nonparties.” (Def.’s Post-Trial Mem. 22). But Rule 65(d)(2) of the Federal Rules of Civil Procedure provides, in relevant part, that an order granting injunc-tive relief binds the following persons who receive actual notice of it by personal service or otherwise: “(A) the parties; (B) the parties’ officers, agents, servants, employees, and attorneys; and (C) other persons who are in active concert or participation with anyone described in Rule 65(d)(2)(A) or (B).” In order for a nonparty to be bound as part of an injunction, “that entity must either aid and abet the defendant or be legally identified with it.” Gojo Indus., Inc. v. Innovative Biodefense, Inc., No. 15-CV-2946 (PAC), 2015 WL 7019836, at *2 (S.D.N.Y. Nov. 12, 2015). Applying those principles here, Coty’s request for injunctive relief is granted with respect to Excell and its “officers, agents, servants, employees ... [and] other persons who are in active concert or participation” with them. Fed. R. Civ. P. 65(d)(2). The fact that Excell may soon be dissolved has no bearing on the scope of the injunction with respect to the other individuals and entities enjoined under Rule 65(d)(2). 1. Accounting of Profits Section 35(a) of the Lanham Act provides that a plaintiff who has successfully established a trademark violation “shall be entitled, ... subject to the principles of equity, to recover ... defendant’s profits.” 15 U.S.C. § 1117(a). The statute goes on to state that, “[i]n assessing profits the plaintiff shall be required to prove defendant’s sales only; defendant must prove all elements of cost or deduction claimed.” Id. As the Second Circuit has explained: “Ordinarily, a plaintiff that has proved the amount of infringing" }, { "docid": "2993156", "title": "", "text": "(3) James R. McMillan, individually and as Acting Chief of the Duval County Jail. (4) John R. Smith, individually and as Director of Police Services. At the hearing on March 14, 1975, with regard to said motion, no objection was made as to the joinder of the proposed defendants Murray and McMillan in their official capacities since they would automatically be added as successors to defendants Page and Grant pursuant to Rule 25(d) of the Federal Rules of Civil Procedure. However, objection was made to any joinder of Murray and McMillan in their individual capacities because of the potential liability to which they might be subjected. However, the plaintiffs have orally stipulated in open court, and this Court adopts and confirms said stipulation, that said proposed defendants will not be accountable in damages for any events which transpired or for any actions which were taken or not taken prior to the date of their joinder. On the basis of that stipulation, this Court will allow joinder of the proposed defendants Murray and McMillan, both in their official and individual capacities, as party defendants, for the sole purpose of ensuring implementation of this Court’s injunctions, orders and decrees. As to the proposed defendants Brown and Smith, there has not been a sufficient showing of their direct involvement in the operations of the Duval County Jail so as to justify their joinder as party defendants at this time. However, this Court wishes to make it em phatically clear to the proposed defendants Brown and Smith, as “agents, servants and employees” of persons already made parties defendant in this cause, that they are as bound by the orders of this Court in this case as any of the parties defendant because of their substantial participation in the proceedings in this case and because of their close identification with parties before the Court. Mims v. Duval County School Board, 338 F.Supp. 1208 (M.D.Fla. 1971); United States v. Hall, 472 F.2d 261 (5th Cir. 1972). In addition, the preliminary injunction issued on January 31, 1975, at page three thereof, clearly enjoined “all successors, agents, servants" }, { "docid": "8514477", "title": "", "text": "employees of ALP A, the AFA, and AMFA, and together with their agents, successors, deputies, servants, and employees, and all organizations and persons acting in concert with them, are enjoined from calling, permitting, engaging in, instigating, encouraging, participating in, authorizing, or approving self-help of any kind, including but not limited to any strike, work stoppage, action that Defendant AFA names “Create Havoc Around Our System” or “CHAOS,” sick-out, slow-down, or other concerted refusal to perform normal employment duties. 2. All of the Defendants named in Term 1 and all other persons acting in concert with them shall take all reasonable steps within their power to prevent the actions described above, and shall refrain from continuing such actions if commenced. 3. Defendants ALPA, the AFA, and AMFA shall notify, by the most expeditious means possible, all of the employees of the Plaintiff who are members of those organizations, of the issuance, contents, and meaning of this injunction, and shall provide a copy of all such notices to counsel for the Plaintiff. 4. The injunction set forth in Terms 1 through 3 above shall not apply to named Defendant Greg Wertz, that person being no longer in the active employ of the Plaintiff and therefore no longer having official capacity with Defendant ALPA. 5. The injunction set forth in Terms 1 through 3 above shall not apply to named Defendant Duane E. Woerth, upon the end of his term of office as President of ALPA, International; and, upon the end of that person’s term of office, this injunction shall apply to the person who assumes the office of President of ALPA, International. 6.Pursuant to Fed. R. Bankr.P. 7065, the Plaintiff need not file a bond as a condition for the effectiveness of this preliminary injunction. . The organizational defendants will be termed, collectively, as \"the Unions.” The Debtor sues the individual defendants in their official capacity only. The Unions each afforded their affiliated individual defendants a defense to this matter. When appropriate, references to the Unions collectively or individually will subsume the organization(s) and the individual officer(s) or employee(s) of each, jointly." }, { "docid": "1055551", "title": "", "text": "the Board on two occasions in September to discuss the hair length regulation, and, after concerned individuals were allowed to speak on the issue, the Board voted to retain the regulation. Accordingly, the school officials, in their individual capacities, are immune from plaintiffs’ claim for monetary damages resulting from the due process violation. E. Attorney’s Fees Plaintiffs are seeking interim attorney’s fees under 42 U.S.C. § 1988. Attorney’s fees are available to parties who prevail in First Amendment actions. Iranian Students Ass’n v. Sawyer, 639 F.2d 1160 (5th Cir.1981). Although plaintiffs’ claim for damages pursuant to 42 U.S.C. § 1983 was unsuccessful, the entry of the preliminary injunction results in a material alteration of the legal relationship between the plaintiffs and the Trustees of Big Sandy, the superintendent, and the principal. See Texas State Teachers Ass’n v. Garland Ind. School Dist., 489 U.S. 782,109 S.Ct. 1486, 103 L.Ed.2d 866 (1989). Thus, plaintiffs are prevailing parties for the purposes of an award of fees under § 1988, where they have successfully vindicated their First and Fourteenth Amendment rights and altered school policy. Id. See also Wyatt v. Cole, 928 F.2d 718, 722 (5th Cir.1991), rev’d on other grounds, — U.S. -, 112 S.Ct. 1827, 118 L.Ed.2d 504 (1992); Jackson v. Galan, 868 F.2d 165, 168-69 (5th Cir.1989); Haskell v. Washington Tp., 864 F.2d 1266, 1279 (6th Cir.1988). However, where injunctive relief is ordered, the award of attorney’s fees will generally be imposed solely against the defendants in their official capacities, since the injunctive relief sought and won by the plaintiffs can only be obtained from the defendants acting in their official capacities. Scott v. Flowers, 910 F.2d 201, 213 n. 25 (5th Cir.1990). Plaintiffs seek fees incurred in the pursuit of this preliminary injunction. An award of interim attorney’s fees is proper where the liability of the opposing party has been established, and the substantial rights of the parties have been determined. Hanrahan v. Hampton, 446 U.S. 754, 757, 100 S.Ct. 1987, 1989, 64 L.Ed.2d 670 (1980); Haskell, 864 F.2d at 1279. See Frazier v. Board of Trustees, 765 F.2d 1278" }, { "docid": "19110940", "title": "", "text": "a preliminary injunction ordering that the State of Texas, the Honorable Dan Morales in his official capacity as Attorney General of Texas, the Texas Department of Transportation, and Brett Bray in his official capacity as Director of the Motor Vehicle Division are commanded forthwith to desist and refrain from attempting to enforce the provisions of Tex. Transp. Code §§ 728.001 through 728.004, individually and collectively, by themselves or through their agents, representatives, administrative agencies, political subdivisions and/or privies until judgment in this cause is rendered by this Court or the Texas Supreme Court reverses the decision of this court in Cause No. 97-4325. Carmax Auto Superstores, Inc. v. State, No. 98-2879, slip op. at 2-3 (383rd Dist. Ct., El Paso County, Tex, Oct. 15, 1998) (order granting preliminary injunction). . \"A court of the United States may not grant an injunction to stay proceedings in a State court except as expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments.” 28 U.S.C. § 2283. . Federal Rule of Civil Procedure 65(d) provides that \"[e]very order granting an injunction ... is binding only upon the parties to the action, their officers, agents, servants, employees, and attorneys, and upon those persons in active concert or participation with them who receive actual notice of the order by personal service or otherwise.” The Texas Supreme Court has described Texas Rule of Civil Procedure 683- as having been taken from this rule. See Ex parte Davis, 470 S.W.2d 647, 649 (Tex.1971). . At first glance, Cook United would seem to run counter to the principle enunciated by the United States Supreme Court in Sunshine Anthracite Coal Co. v. Adkins, 310 U.S. 381, 402-03, 60 S.Ct. 907, 84 L.Ed. 1263 (1940), that \"[tjhere is privity between officers of the same government so that a judgment in a suit between a parly and a representative of the United States is res judicata in relitigation of the same issue between that party and another officer of the government.” But by its own terms, this statement applies only" }, { "docid": "22126771", "title": "", "text": "the state’s objections to the district court’s injunction, we affirm. APPENDIX A “It is hereby ordered that the Attorney-General of the State of New York, Robert Abrams, individually and in his official capacity, and all other persons acting for the Attorney General in either capacity, and the State of New York, acting through its Attorney General, its officials, officers, agents, servants, representatives and employees, and all other persons acting under it, in concert with it or on its behalf, and all other persons having actual knowledge of this Order, be and hereby are enjoined and restrained from commencing any action or proceeding of any kind against any defendant (or against any of their respective related parties or affiliates) in any proceeding presently or hereinafter assigned or transferred to this Court pursuant to 28 U.S.C. § 1407 for inclusion in the coordinated and/or consolidated pretrial proceedings in MDL 581 — In re Baldwin-United Corporation (hereinafter referred to as “any proceeding under MDL 581”), which action or proceeding purports to be in the name of, on behalf of or derivative of the rights of any plaintiff or purported class member in any proceeding under MDL 581, or which action or proceeding may in any way affect the rights of any plaintiff or purported class member in any proceeding under MDL 581, or which action or proceeding seeks money damages arising out of the sale to any plaintiff or to any purported class members in any proceeding under MDL 581 of single premium deferred annuities of insurance subsidiaries of Baldwin-United Corporation by any defendant in any proceeding under MDL 581, or which action or proceeding seeks any declaratory relief with respect to any of the above; and “It is hereby further ordered that, in accordance with this Court’s decision on February 26, 1985, this injunction and restraint shall not extend to the commencement of any action or proceeding which seeks prospective injunctive relief as to any unlawful business practice on the part of any defendant in any proceeding under MDL 581 with respect to the sale of single premium deferred annuities of insurance" }, { "docid": "22126770", "title": "", "text": "the injunction in the form he chose. It is true, as the State of Maine points out, that there may be some laws not available to private plaintiffs that enable a given state to bring proceedings seeking restitutionary damages for the benefit of certain of its citizens. See, e.g., Me.Rev.Stat. Ann.tit. 5, § 209 (Supp.1984-85) (providing that in an action brought by the state to declare a practice unlawful the court may “make such other orders or judgments as may be necessary to restore to any person who has suffered any ascertainable loss by reason” of the unlawful practice “any moneys or property ... which may have been acquired by means of such method”). However, the invocation of such a restitutionary remedial provision does not cause the claim to lose its representative character. Although only the state can act under the state statute, its claim is essentially derivative. Any recovery would not go to the state but ultimately to the plaintiffs-in vestors in the federal action, who are the real parties in interest. Having rejected the state’s objections to the district court’s injunction, we affirm. APPENDIX A “It is hereby ordered that the Attorney-General of the State of New York, Robert Abrams, individually and in his official capacity, and all other persons acting for the Attorney General in either capacity, and the State of New York, acting through its Attorney General, its officials, officers, agents, servants, representatives and employees, and all other persons acting under it, in concert with it or on its behalf, and all other persons having actual knowledge of this Order, be and hereby are enjoined and restrained from commencing any action or proceeding of any kind against any defendant (or against any of their respective related parties or affiliates) in any proceeding presently or hereinafter assigned or transferred to this Court pursuant to 28 U.S.C. § 1407 for inclusion in the coordinated and/or consolidated pretrial proceedings in MDL 581 — In re Baldwin-United Corporation (hereinafter referred to as “any proceeding under MDL 581”), which action or proceeding purports to be in the name of, on behalf" } ]

[ { "docid": "22640103", "title": "", "text": "Perutz v. Bohemian Discount Bank, 304 N. Y. 533, 537, 110 N. E. 2d 6, 7. The reasons that underlie the deference afforded to foreign acts affecting property in the acting country are several; such deference reflects an effort to maintain a certain stability and predictability in transnational transactions, to avoid friction between nations, to encourage settlement of these disputes through diplomatic means and to avoid interference with the executive control of foreign relations. To adduce sound reasons for a policy of nonreview is not to resolve the problem at hand, but to delineate some of the considerations that are pertinent to its resolution. Contrary to the assumption underlying the Court’s opinion, these considerations are relative, their strength varies from case to case, and they are by no means controlling in all litigation involving the public acts of a foreign government. This is made abundantly clear by numerous cases in which the validity of a foreign act of state is drawn in question and in which these identical considerations are present in the same or a greater degree. American courts have denied recognition or effect to foreign law, otherwise applicable under the conflict of laws rules of the forum, to many foreign laws where these laws are deeply inconsistent with the policy of the forum, notwithstanding that these laws were of obvious political and social importance to the acting country. For example, foreign confiscatory decrees purporting to divest nationals and corporations of the foreign sovereign of property located in the United States uniformly have been denied effect in our courts, including this Court; courts continued to recognize private property rights of Russian corporations owning property within the United States long after the Russian Government, recognized by the United States, confiscated all such property and had rescinded the laws on which corporate identity depended. Furthermore, our courts customarily refuse to enforce the revenue and penal laws of a foreign state, since no country has an obligation to further the governmental interests of a foreign sovereign. And the judgments of foreign courts are denied conclusive or prima facie effect where the judgment" } ]

[ { "docid": "6840788", "title": "", "text": "Cross and Blue Shield Association assumed that role. Based on its review of St. Vincent’s cost reports for the fiscal years ended June 30, 1987, 1988 and 1989, the Intermediary denied St. Vincent’s treatment of the contractual payments as “capital-related” costs. The effect of the Intermediary’s determinations on Medicare reimbursement is approximately $64,000, $60,000, and $20,000 for fiscal years 1987, 1988 and 1989, respectively. St. Vincent timely appealed the Intermediary’s determinations to the Provider Reimbursement Review Board (Board) pursuant to 42 C.F.R. §§ 405.1835-.1841 and has met the jurisdictional requirements of those regulations. II. Standard of Review Judicial review of the agency’s decision is governed by 5 U.S.C. § 706, which requires that an agency action be affirmed unless it is arbitrary and capricious, contrary to law, or unsupported by substantial evidence. 5 U.S.C. § 706; see also Daviess County Hosp. v. Bowen, 811 F.2d 338, 343 (7th Cir.1987) (“The Secretary’s decision may not be disturbed unless it is arbitrary, capricious, an abuse of discretion, or otherwise contrary to law; contrary to constitutional right, power privilege or immunity; exceeding of statutory jurisdiction, or falling short of statutory right; reached in violation of established procedure; or unsupported by substantial evidence.”) In evaluating agency action, a reviewing court accords considerable deference to the agency’s expertise and to the agency’s eongressionally-mandated duty to administer its own programs. Udall v. Tallman, 380 U.S. 1, 16, 85 S.Ct. 792, 801, 13 L.Ed.2d 616 (1965). Indeed, “[a]n administrative agency’s interpretation of its own regulation merits considerable respect by a reviewing court, and will be controlling absent a showing ‘that it is plainly erroneous or inconsistent with the regulation.’ Such deference is especially applicable to areas like Medicare reimbursements that require judgments about appropriate cost accounting practices.” Abbott-Northwestern Hospital, Inc. v. Schweiker, 698 F.2d 336, 340 (8th Cir.1983) (citations omitted); see also St. Mary of Nazareth Hospital Center v. Department of Health & Human Services, 698 F.2d 1337, 1346 (7th Cir.1983) (“... though courts are not bound by interpretative regulations ..., courts will defer to the agency’s judgment unless it can be shown that the agency’s determination" }, { "docid": "5607812", "title": "", "text": "State are effectively respected.” Art. 1. The return remedy is the central operating feature of the Convention and provides that a wrongfully removed child must be returned to his or her country of habitual residence unless'certain defenses apply. Lozano v. Montoya Alvarez, — U.S. -, 134 S.Ct. 1224, 1228-29, 188 L.Ed.2d 200 (2014). Notably, the return remedy does not address the merits of any underlying custody dispute but instead only determines where any custody decision should be made. Sanchez v. R.G.L., 761 F.3d 495, 503 (5th Cir.2014); see also 22 U.S.C. § 9001(b)(4). As the Supreme Court has explained, the return remedy “is based on the principle that the best interests of the child are well served when decisions regarding custody rights are made in the country of habitual residence.” Abbott, 560 U.S. at 20, 130 S.Ct. 1983. This principle works to “restore the pre-abduction status quo and deter parents from crossing borders in search of a more sympathetic court.” England v. England, 234 F.3d 268, 271 (5th Cir.2000) (quoting Friedrich v. Friedrich, 78 F.3d 1060, 1064 (6th Cir.1996)). But, while the Convention is designed to discourage child abduction, it “does not pursue that goal at any cost.” Lozano, 134 S.Ct. at 1235. The Convention recognizes that' the interests of a child may be better served by the child remaining in a new environment and provides “several narrow affirmative defenses to wrongful removal,” Sealed Appellant v. Sealed Appellee; 394 F.3d 338, 343 (5th Cir.2004) (emphasis added); see .also Elisa Pérez-Vera, Explanatory Report: Hague Convention on Private International Law ¶ 34, available ■ at https://assets.hcch.net/ upload/expl28.pdf (explaining that these defenses are to be interpreted narrowly to avoid undermining the objectives of the Convention). When addressing these defenses to return, courts “must strive always to avoid a common tendency to prefer their own society and culture.” Abbott, 560 U.S. at 20, 130 S.Ct. 1983. This case concerns the Convention’s well-settled defense. IV. A district court’s determination of whether a child is well-settled presents a mixed question of law and fact. See In re B. Del C.S.B., 559. F.3d 999, 1008 (9th Cir.2009)." }, { "docid": "15425277", "title": "", "text": "of Congress. See id. at 842-43, 104 S.Ct. 2778. If, on the other hand, Congress is silent on a particular matter or the statutory language is ambiguous, the court must defer to the agency’s interpretation as long as it “is based on a permissible construction of the statute.” Id. at 843, 104 S.Ct. 2778. Similarly, an agency’s interpretation of its own regulations must be given effect “so long as the interpretation sensibly conforms to the purpose and wording of the regulations.” Martin v. Occupational Safety and Health Review Comm’n, 499 U.S. 144, 150, 111 S.Ct. 1171, 113 L.Ed.2d 117 (1991); see also Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512, 114 S.Ct. 2381, 129 L.Ed.2d 405 (“We must give substantial deference to an agency’s interpretation of its own regulations.”); Princess Cruises, Inc. v. United States, 201 F.3d 1352, 1359-60 (Fed.Cir.2000) (same). Deference is particularly appropriate when the agency is applying its regulations to a complex or changing circumstance, thus requiring the agency to bring to bear its unique expertise and policy-making prerogatives. See Martin, 499 U.S. at 151, 111 S.Ct. 1171. When such judicial deference is appropriate, a court must accept the agency’s reasonable interpretation of a regulation, even if there may be other reasonable interpretations to which the regulation is susceptible, and even if the court would have preferred an alternative interpretation. See Sharp Corp. v. United States, 63 F.3d 1092, 1096 (Fed.Cir.1995). While regulatory interpretations are generally afforded substantial deference by reviewing courts, the regulation at issue in this case is incorporated by reference into contracts entered into between the government and several private energy customers. According to SCE and LADWP, it is inappropriate to give deference to an agency’s interpretation of a contractual provision when the government is itself a party to the contract. This argument is not without force. When a party enters into a contract with the government, that party should reasonably expect to be on equal legal footing with the government should a dispute over the contract arise. If courts were generally to adopt a principle of deference to an agency’s contract interpretation," }, { "docid": "947981", "title": "", "text": "is inconsistent with that of nearly every other case which has considered the issue, including the Sixth Circuit’s own prior ruling on the preliminary injunction issued by the district court in Memphis Development and our opinion in Factors I. It is also contrary to all current views of scholarly commentators on the subject. The majority starts with the proposition that deference is owed to the “interpretations” (Maj. opin., p. 281) by a federal court of the law of a state within its jurisdiction, a principle with which I find no need to disagree. However, it then states that the “issue for this Court ... is whether, and under what circumstances, a ruling by a court of appeals, interpreting the common law of a state within its circuit, should be recognized as authoritative by the other federal courts of the nation.” (Maj. opin., p. 282). With this statement of the issue I must disagree. Here there was no interpretation of any Tennessee law by the Sixth Circuit, only a declaration of what that court thought would be a preferable general common law rule for that state. The issue before us, therefore, is whether a federal court of appeals, called upon to anticipate what general common law rule with respect to a legal question might be appropriate for a state having no law whatsoever on the subject, must adhere to the diversity decision of a sister federal court of appeals within whose boundaries the state is located. Resolution of this issue requires us to look into the reasoning behind the policy of deference which the majority would apply and decide whether it is to be applied mechanically on a geographical basis or is instead subject to any limitations. The weight given by higher federal courts to state law rulings made by federal judges sitting in that state results from the supposed greater familiarity that such a judge will have with the local law and the methods and tendencies of the state courts. As Wright states: “As a general proposition, a federal court judge who sits in a particular state and has practiced" }, { "docid": "22476608", "title": "", "text": "provisions, not Mr. Moncayo’s office. Recognizing the difficulty of interpreting foreign law, courts may defer to foreign government interpretations. The Seventh Circuit reached this conclusion in deferring to an administrative agency in France, a civil law country. See In re Oil Spill by the Amoco Cadiz, 954 F.2d 1279, 1312 (7th Cir.1992) (“A court of the United States owes deference to the construction France places upon its domestic law.... Giving the conclusions of a sovereign nation less respect than those of [a U.S.] administrative agency is unacceptable.”). In Amoco Cadiz, the court was faced with conflicting interpretations of French law. The court noted that had the litigants been private parties, it would have had to resolve the conflicts. See id. at 1312. Because the Republic of France was before the court, however, the Seventh Circuit accepted its interpretation of the law. See id. The Republic of Mexico is not a litigant before this court and neither is the SCT. And while the evidence shows that the SCT was empowered to enforce Mexican law, it does not persuasively show that the SCT was empowered to interpret Mexican law. The fact that U.S. courts routinely give deference to U.S. agencies empowered to interpret U.S. law and U.S. courts may give deference to foreign governments before the court does not entail that U.S. courts must give deference to all agency determinations made by all foreign agencies not before the court. More importantly, the most relevant official circular at issue is dated 1996, after the new laws went into effect; thus, it is unclear whether the SCT position was that such activities were currently illegal or had always been illegal. For these reasons, we do not feel compelled to credit the SCT’s determinations without analysis. The defendants also argue that the relevant regulations required a permit to be a reseller. The statute in question, however is not without question. Our English translation of Article 75 of the Telecommunications Rulings of Mexico reads as follows: The exploitation of the telecommunications network given in concession must be carried out directly by its holder and its commercialization" }, { "docid": "18949284", "title": "", "text": "Report] has not been approved by the Conference, and it is possible that, despite the Rapporter’s [sic] efforts to remain objective, certain passages reflect a viewpoint which is in part subjective”). It suffices to note that the Report supports the conclusion that ne exeat rights are rights of custody. The Report explains that rather than defining custody in precise terms or referring to the laws of different nations pertaining to parental rights, the Convention uses the unadorned term “rights of custody” to recognize “all the ways in which custody of children can be exercised” through “a flexible interpretation of the terms used, which allows the greatest possible number of cases to be brought into consideration.” Id., ¶¶ 67, 71, at 446, 447-448. Thus the Report rejects the notion that because ne exeat rights do not encompass the right to make medical or some other important decisions about a child’s life they cannot be rights of custody. Indeed, the Re port is fully consistent with the conclusion that ne exeat rights are just one of the many “ways in which custody of children can be exercised.” Id., ¶ 71, at 447. D Adopting the view that the Convention provides a return remedy for violations of Tie exeat rights accords with its objects and purposes. The Convention is based on the principle that the best interests of the child are well served when decisions regarding custody rights are made in the country of habitual residence. See Convention Preamble, Treaty Doc., at 7. Ordering a return remedy does not alter the existing allocation of custody rights, Art. 19, id., at 11, but does allow the courts of the home country to decide what is in the child’s best interests. It is the Convention’s premise that courts in contracting states will make this determination in a responsible manner. Custody decisions are often difficult. Judges must strive always to avoid a common tendency to prefer their own society and culture, a tendency that ought not interfere with objective consideration of all the factors that should be weighed in determining the best interests of the child." }, { "docid": "22752902", "title": "", "text": "this court. They cannot be ignored or their effect avoided by the. intimation that the court indulged in obiter dicta. What was said in those cases was within the limits of the issues made by the parties. In our opinion, the recognition of the principles announced in former cases must, under the conceded facts, lead to an- affirmance of the decree below, unless the special objections, or some of them, which have been made to the application' of the act of Congress to the present case are of. a substantial character. We will now consider those objections. Underlying the argument in behalf of the defendants is the idea that as the Northern Securities Company is a st^te corporation, and as its acquisition of the stock of the Great Northern and Northern Pacific Railway companies is not inconsistent with the powers conferred by its charter, the enforcement of the act of Congress, as against those corporations, will be an, unauthorized interference, by the national government with the internal commerce of the States creating.those corporations. This suggestion does not at all impress us. There is no reason to suppose that Congress had any purpose to interfere with the internal affairs of the States, nor, in our opinion, is there any ground whatever for the contention that the Anti-Trust Act regulates their domestic commerce. By its very terms the act regulates only commerce among the States and with foreign states. Viewed in that light, the act, if within the powers of Congress, must be respected; for, by the explicit words of the Constitution, that instrument and the laws enacted by Congress in' pursuance of its provisions, are the supreme law of the land, “anything in the constitution or laws of any State to the contrary notwithstanding”— supreme over the States, over the courts, and even ..over the people of the United States, the source of all power under our governmental system in respect of the objects for which the National Government was ordained. An.act of Congress con-, stitutionally passed under its power to regulate commerce' among the States and with foreign nations'is binding" }, { "docid": "5216117", "title": "", "text": "obligation at the statutory minimum for the duration of the loan. Hence, the pivotal issue — the one that sharply separates our view from that of our colleagues — is not whether the text of Paragraph 4 is ambiguous, but whether the government’s belated clarification should be decisive in this case. Our colleagues answer that question in the affirmative. In other words, even if they conceded the covenant’s ambiguity, they would still refuse to allow Kolbe’s lawsuit to proceed. They maintain that the government’s newly offered construction of Paragraph 4 not only governs mortgage agreements entered into subsequent to the pronouncement, see Auer v. Robbins, 519 U.S. 452, 457-58, 117 S.Ct. 905, 137 L.Ed.2d 79 (1997) (holding that agency’s interpretation of its own regulations is owed deference), but also operates retroactively to supersede the shared understanding of private parties who previously entered into mortgages containing the flawed language. Accordingly, ambiguity aside, they conclude that the district court properly dismissed Kolbe’s complaint alleging that Bank of America, the successor-in-interest to Taylor Bean, improperly forced Kolbe to purchase additional flood insurance. Our colleagues identify three separate strands of reasoning to support their conclusion, all of which essentially reduce to the same proposition: the government’s explanation of uniform contract terms that it promulgated trumps any other shared understanding of those terms by private contracting parties. Whatever the force of that principle in other circumstances, we strongly disagree that the government may reach back in time to override lawful agreements between two private parties who shared the same understanding of their mutual commitment. Cf. Christopher v. SmithKline Beecham Corp., — U.S. -, 132 S.Ct. 2156, 2168, 183 L.Ed.2d 153 (2012) (“It is one thing to expect regulated parties to conform their conduct to an agency’s interpretations once the agency announces them; it is quite another to require regulated parties to divine the agency’s interpretations in advance____”). Federal law does not demand such a result, and our responsibility to respect private contracts should preclude such a substantial departure from legal norms. II. Even under the Bank’s and government’s view of Paragraph 4, lenders may exercise" }, { "docid": "9642969", "title": "", "text": "avoids the proliferation of unnecessary, wasteful interference proceedings concluding that both parties are entitled to patents in situations in which the claimed inventions do not define the same patentable invention, but merely overlap in scope. This is the clear application of discretion that is inherent in the authority granted pursuant to 35 U.S.C. § 135(a) of the statute. Because the two-way test is an interpretation of the Director’s own regulations, the Director’s interpretation of them is controlling unless “plainly erroneous or inconsistent with the regulation.” Auer, 519 U.S. at 461, 117 S.Ct. 905 (citing Seminole, 325 U.S. at 414, 65 S.Ct. 1215); see also United States v. Cleveland Indians Baseball Co., 532 U.S. 200, 220, 121 S.Ct. 1433, 149 L.Ed.2d 401 (2001) (giving “substantial judicial deference” to the Internal Reve nue Service’s reasonable longstanding interpretation of its own regulations); Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512, 114 S.Ct. 2381, 129 L.Ed.2d 405 (1994) (noting that the agency’s interpretation must be given “controlling weight unless it is ‘plainly erroneous or inconsistent with the regulation’ ” (quoting Seminole, 325 U.S. at 414, 65 S.Ct. 1215)); Udall v. Tallman, 380 U.S. 1, 16, 85 S.Ct. 792, 13 L.Ed.2d 616 (1965) (stating that when “an interpretation of an administrative regulation [is required,] a court must necessarily look to the administrative construction of the regulation if the meaning of the words used is in doubt” (citing Seminole, 325 U.S. at 413-14, 65 S.Ct. 1215)); see generally Richard J. Pierce, Jr., Administrative Law Treatise § 6.11 (4th ed. 2002). We have formulated the degree of this deference, under our jurisprudence, variously as “substantial,” Am. Express, 262 F.3d at 1382-83, and, in the context of a ruling of the Board, as “considerable respect,” Kubota v. Shibuya, 999 F.2d 517, 520 (Fed.Cir.1993) (citing Ford Motor Credit Co. v. Milhollin, 444 U.S. 555, 566, 100 S.Ct. 790, 63 L.Ed.2d 22 (1980)). See also Bayer AG v. Carlsbad Tech., Inc., 298 F.3d 1377, 1381 (Fed.Cir.2002); Morganroth v. Quigg, 885 F.2d 843, 848 (Fed.Cir.1989) (stating that the Director’s “interpretation of [the regulatory provisions governing abandonment and revival of patent" }, { "docid": "8303256", "title": "", "text": "are not, in any event, entitled to greater rights. . As in Munaf, we need not address what rights a detainee might possess in the \"more extreme case in which the Executive has determined that a detainee is likely to be tortured but decides to transfer him anyway.” 128 S.Ct. at 2226. . Munaf concerned a specific transfer, but the transferee sovereign's likely treatment of the petitioners was not material to its holding. Contrary to the statement in the dissent, the Court gave not merely \"substantial weight to the [GJovernment's determination that the proposed transfer was lawful,” Dis. Op. at 526; it held the judiciary cannot look behind the determination made by the political branches that the transfer would not result in mistreatment of the detainee at the hands of the foreign government. 128 S.Ct. at 2225, 2226. . Our dissenting colleague agrees the detainees cannot prevail on a claim based upon their likely treatment by a foreign sovereign acting pursuant to its own laws. See Dis. Op. at 525 (“[T]he [G]overnment has submitted sworn declarations assuring the court that any transfer will result in release from U.S. authority. If the [G]overnment's representations are accurate, each transfer will be law ful.”). Nor can they prevail on the ground that the foreign sovereign is an agent of the United States merely because, with respect to detainees who are — unlike the present petitioners — regarded as enemy combatants, the Government engages in a dialogue \"to ascertain or establish what measures the receiving government intends to take pursuant to its own domestic laws and independent determinations that will ensure that the detainee will not pose a continuing threat to the United States and its allies,” Waxman Decl. ¶ 5. The dissent takes note of the Government’s statement that \"under appropriate circumstances,” it transfers detainees \"to the control of other governments for continued detention,” see Dis. Op. at 525, but, as the Government explains, \"[i]n all such cases ... the individual is detained, if at all, by the foreign government pursuant to its own laws and not on behalf of the United States,”" }, { "docid": "8303271", "title": "", "text": "and immigration policies and international negotiations. Cf. Munaf 128 S.Ct. at 2223 (“Habeas does not require the United States to keep an unsuspecting nation in the dark when it releases an alleged criminal insurgent within its borders.”); Demore v. Kim, 538 U.S. 510, 522, 123 S.Ct. 1708, 155 L.Ed.2d 724 (2003) (“any policy toward aliens is vitally and intricately interwoven with contemporaneous policies in regard to the conduct of foreign relations, the war power, and the maintenance of a republican form of government”) (internal quotation marks omitted); INS v. Aguirre-Aguirre, 526 U.S. 415, 425, 119 S.Ct. 1439, 143 L.Ed.2d 590 (1999) (“judicial deference to the Executive Branch is especially appropriate in the immigration context where officials exercise especially sensitive political functions that implicate questions of foreign relations”) (internal quotation marks omitted). Moreover, the dissent’s theory necessarily would require some judicial review of a foreign nation’s legal practices and procedures. But that would contravene the longstanding principle reiterated by the Supreme Court in Munaf: “Even with respect to claims that detainees would be denied constitutional rights if transferred, we have recognized that it is for the political branches, not the judiciary, to assess practices in foreign countries and to determine national policy in light of those assessments.” 128 S.Ct. at 2225. Nor does the dissent explicate how its regime would work procedurally. For instance, would the Judiciary require questioning of the American and foreign officials who negotiated the transfer? Would it mandate disclosure of confidential nation-to-nation documents? Presumably so. But absent congressional direction otherwise, courts traditionally are wary of wading so deeply into this Nation’s negotiations and agreements with foreign nations. Cf. Dep’t of Navy v. Egan, 484 U.S. 518, 529-30, 108 S.Ct. 818, 98 L.Ed.2d 918 (1988); Dames & Moore v. Regan, 453 U.S. 654, 101 S.Ct. 2972, 69 L.Ed.2d 918 (1981). Courts have a responsibility to decide war-related cases with as much clarity and expedition as possible. Especially in this sensitive area, our holdings and opinions should strive to be readily understandable to the political branches that have to make critical wartime decisions. The dissent’s uncertain “on behalf of’" }, { "docid": "8303257", "title": "", "text": "declarations assuring the court that any transfer will result in release from U.S. authority. If the [G]overnment's representations are accurate, each transfer will be law ful.”). Nor can they prevail on the ground that the foreign sovereign is an agent of the United States merely because, with respect to detainees who are — unlike the present petitioners — regarded as enemy combatants, the Government engages in a dialogue \"to ascertain or establish what measures the receiving government intends to take pursuant to its own domestic laws and independent determinations that will ensure that the detainee will not pose a continuing threat to the United States and its allies,” Waxman Decl. ¶ 5. The dissent takes note of the Government’s statement that \"under appropriate circumstances,” it transfers detainees \"to the control of other governments for continued detention,” see Dis. Op. at 525, but, as the Government explains, \"[i]n all such cases ... the individual is detained, if at all, by the foreign government pursuant to its own laws and not on behalf of the United States,” Waxman Decl. ¶ 5. Whether, acting pursuant to its own laws, a \"foreign nation will continue detention of the petitioners,” Dis. Op. at 525, is precisely the inquiry Munaf forbids this court from undertaking. This case involves the Government’s proposed release from U.S. custody of detainees whom the Government no longer regards as enemy combatants. It does not involve — and therefore, unlike our dissenting colleague, we express no opinion concerning- — the transfer of detainees resulting in their \"continued detention on behalf of the United States in places where the writ does not extend,” Dis. Op. at 524. The Government represents that it is trying to find a country that will accept the petitioners and, in the absence of contrary evidence, we presume public officers \"have properly discharged their official duties.” See United States v. Chem. Found., Inc., 272 U.S. 1, 15, 47 S.Ct. 1, 71 L.Ed. 131 (1926). In view of the Government's sworn declarations, and of the detainees’ failure to present anything that contradicts them, we have no reason to think the" }, { "docid": "1178300", "title": "", "text": "307, 313, 314, 316. Cf., 11 U.S.C. § 704. All transfers, attachments, executions and the like effected after the commencement of the liquidation are deemed void, Companies Ordinance § 268, 269, and preferences and fraudulent conveyances are subject to avoidance. Companies Ordinance § 355; Bankruptcy Ordinance § 96. Cf., 11 U.S.C. §§ 547-48. Each creditor may prove his claim within 180 days, although the liquidator has the discretion to extend this period for good cause. Companies Ordinance § 353; Companies Regulations 5747-1987, § 53; Bankruptcy Regulations 5745-1985, § 76. A creditor whose claim is rejected must be notified in writing, and the decision is appealable. Companies Ordinance § 93; Bankruptcy Regulations 5745-1985, §§ 93, 96. Funds are distributed under a priority scheme very similar to our own, Companies Ordinance §§ 353, 354; Bankruptcy Ordinance §§ 20, 76; cf., 11 U.S.C. § 507, with no preference being given to the claims of Israeli citizens. See Companies Ordinance and Bankruptcy Ordinance Regulations passim. So long as the laws of the foreign jurisdiction are not repugnant to our own, there is a distinct judicial preference for deferring to the foreign tribunal litigation respecting the validity or the amount of the claims against the foreign debtor. Brierley, 145 B.R. at 168; Gercke, 122 B.R. at 631. Although more than courtesy and accommodation, comity does not achieve the force of an imperative or obligation. Rather, it is a nation’s expression of understanding which demonstrates due regard both to international duty and convenience and to the rights of persons protected by its own laws. Comity should be withheld only when its acceptance would be contrary or prejudicial to the interests of the nation called upon to give it effect. Cunard, 773 F.2d at 457 (citing Somportex Ltd. v. Philadelphia Chewing Gum Corp., 453 F.2d 435, 440 (3d Cir.1971), cert. denied, 405 U.S. 1017, 92 S.Ct. 1294, 31 L.Ed.2d 479 (1972)). The Israeli liquidation proceeding comports with both section 304(c) and the equality of distribution. It is the Israeli court, a single forum, that can best assure an economical and expeditious administration of the Israel Re estate." }, { "docid": "6791039", "title": "", "text": "1700 (1945). Further, “[a]n agency’s construction of its own regulations has been regarded as especially due that respect.” Milhollin, 444 U.S. at 566, 100 S.Ct. at 797. Thus, we have observed that “[t]he Supreme Court has made clear that courts must defer to an agency’s consistent interpretation of its own regulation unless it is ‘plainly erroneous or inconsistent with the regulation.’ ” Director, Office of Workers’ Compensation Programs v. Mangifest, 826 F.2d 1318, 1323 (3d Cir.1987) (quoting Seminole Rock & Sand Co., 325 U.S. at 414, 65 S.Ct. at 1217); see also Bonessa v. United States Steel Corp., 884 F.2d 726, 731-32 (3d Cir.1989) (noting that this Circuit in Mangifest “acknowledged the Supreme Court’s mandate that courts must defer to an agency’s consistent interpretation of its own regulations”); Presinzano v. Hoffman-La Roche, Inc., 726 F.2d 105, 111 (3d Cir.1984) (“[A]n agency’s interpretation of its own regulations is owed considerable deference.”). As we have discussed, see supra, at 585, 586, we must conduct our review of the Secretary’s reimbursement determination in this case in accordance not only with section 1395oo (f)(1), but also with the APA. In Butler County Memorial Hospital v. Heckler, 780 F.2d 352 (3d Cir.1985), a Medicare reimbursement case similar to this one, we recognized that the APA “requires that a court uphold agency policies, including those pronounced in adjudications such as [the Secretary’s Medicare reimbursement determinations] ..., unless they are ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.’ ” Id. at 355 (citing 5 U.S.C. §§ 551(13), 701 and quoting 5 U.S.C. § 706(2)(A)). In Butler County Memorial Hospital we further concluded: Such deference is especially appropriate here, where the Secretary’s resolution involves a complex scheme of reimbursement. ... Congress described only sparsely the means of assessing reasonable costs owed to Medicare providers, and instead assigned the primary responsibility for such assessments to the Secretary.... We must be cautious lest we disturb this appropriate allocation of governmental functions. Id. at 356 (citations omitted). With these principles in mind, we turn to the district court’s related organization and funded depreciation rulings. A." }, { "docid": "5607813", "title": "", "text": "1060, 1064 (6th Cir.1996)). But, while the Convention is designed to discourage child abduction, it “does not pursue that goal at any cost.” Lozano, 134 S.Ct. at 1235. The Convention recognizes that' the interests of a child may be better served by the child remaining in a new environment and provides “several narrow affirmative defenses to wrongful removal,” Sealed Appellant v. Sealed Appellee; 394 F.3d 338, 343 (5th Cir.2004) (emphasis added); see .also Elisa Pérez-Vera, Explanatory Report: Hague Convention on Private International Law ¶ 34, available ■ at https://assets.hcch.net/ upload/expl28.pdf (explaining that these defenses are to be interpreted narrowly to avoid undermining the objectives of the Convention). When addressing these defenses to return, courts “must strive always to avoid a common tendency to prefer their own society and culture.” Abbott, 560 U.S. at 20, 130 S.Ct. 1983. This case concerns the Convention’s well-settled defense. IV. A district court’s determination of whether a child is well-settled presents a mixed question of law and fact. See In re B. Del C.S.B., 559. F.3d 999, 1008 (9th Cir.2009). We review the district court’s factual findings'for clear error, and its legal conclusions de novo. England, 234 F.3d at 270. “A factual finding is not clearly erroneous as long as it is plausible in the light of the record as a whole.” Sealed Appellant, 394 F.3d at 342 (citation omitted). V. We conclude that the district court erred in its legal analysis and application of the Convention’s well-settled defense. Article 12 of the Convention provides, in relevant part, that when return proceedings are commenced more than one year after the date of wrongful removal, the court must “order the return of the child, unless it is demonstrated that the child is now settled in its new environment.” Art. 12. The underlying purpose of this defense is to recognize that at some point a child may become so settled in a new environment that return is no longer in the child’s best interests. Lozano v. Alvarez, 697 F.3d 41, 53 (2d Cir.2012), aff'd sub nom. Lozano v. Montoya Alvarez, — U.S. — 134 S.Ct. 1224, 188" }, { "docid": "22476609", "title": "", "text": "not persuasively show that the SCT was empowered to interpret Mexican law. The fact that U.S. courts routinely give deference to U.S. agencies empowered to interpret U.S. law and U.S. courts may give deference to foreign governments before the court does not entail that U.S. courts must give deference to all agency determinations made by all foreign agencies not before the court. More importantly, the most relevant official circular at issue is dated 1996, after the new laws went into effect; thus, it is unclear whether the SCT position was that such activities were currently illegal or had always been illegal. For these reasons, we do not feel compelled to credit the SCT’s determinations without analysis. The defendants also argue that the relevant regulations required a permit to be a reseller. The statute in question, however is not without question. Our English translation of Article 75 of the Telecommunications Rulings of Mexico reads as follows: The exploitation of the telecommunications network given in concession must be carried out directly by its holder and its commercialization may be made through agents in accordance with the provisions approved by the Ministry. We read this to mean that the direct operation of the network must be accomplished by the actual provider, and that the provider may designate others to commercialize the network. It does not say commercialization “must” be made through those channels, however. Furthermore, this court has not been apprised of the content of any “Ministry provisions,” and the defendants have not identified any regulation in place at the time which defines or regulates “resale” or explicitly requires a permit for anything except provision, which we have already decided ATI was not doing. Instead, we find convincing the argument that before the new laws took effect, only the direct provision of telecommunications services required a concession from the Mexican government, for several reasons. First, because ATI’s method was novel, it is unrealistic to read the older Mexican law as covering the service. The new laws explicitly regulate resale and pointedly are not retroactive; this is at least some evidence supporting the notion" }, { "docid": "6857564", "title": "", "text": "Supreme Court held that the defendant was entitled to an opportunity to prove that it “was affirmatively misled by the responsible administrative agency into believing that law did not apply to this situation” on the grounds that “traditional notions of fairness inherent in our system of criminal justice prevent the Government from proceeding with the prosecution.” 411 U.S. at 674, 93 S.Ct. at 1817. Pennsylvania Industrial does not contradict our holding in this case. The Pennsylvania Industrial defendant availed itself of its self-help remedy and discovered regulations providing that the conduct was legal, regulations to which courts would in appropriate circumstances defer. See Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43, 104 S.Ct. 2778, 2781-82, 81 L.Ed.2d 694 (1984). While a citizen might reasonably rely on the regulations of the agency charged with the administration of the statutory schemes. MSP has cited no ease holding that a official’s non-adjudicative statements regarding the applicability of a statute to a particular set of facts are entitled to similar deference. We acknowledge that this case presents several factors favoring estoppel. LDEQ’s representation to MSP was written, not oral. Cf. Heckler, 467 U.S. at 65, 104 S.Ct. at 2226-27 (stating that courts should be especially reluctant to estop the government of the basis of oral statements). Although the district court made no findings as to intent, the fact that LDEQ issued its letter in the context of negotiations allegedly designed to bring MSP into compliance with RCRA’s storage regulations suggest that LDEQ intended for MSP to rely on the letter. Although MSP’s extensive storage of K-listed wastes prior to receiving the June 9 letter suggests that it might have continued to behave in the same manner regardless of what LDEQ said, at least one of MSP’s customers, Southern Wood Piedmont Company, did in fact rely on LDEQ representations regarding the status of MSP’s facilities. Nevertheless, the burden on a party seeking to estop the United States is heavy indeed, and MSP has not met its burden in this case. 4 The United States appeals the district court’s definition of" }, { "docid": "20236488", "title": "", "text": "review de novo the District Court’s grant of summary judgment, which means that we review the agency’s decision on our own. See Lozowski v. Mineta, 292 F.3d 840, 845 (D.C.Cir.2002) (“Because the district court entered a summary judgment, we review its decision de novo and therefore, in effect, review directly the decision of the Secretary.”) Under the applicable provisions of the Administrative Procedure Act, we must determine whether the agency’s decision is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A) (2000). And, in the course of our review, “[w]e must give substantial deference to an agency’s interpretation of its own regulations. Our task is not to decide which among several competing interpretations best serves the regulatory purpose. Rather, the agency’s interpretation must be given controlling weight unless it is plainly erroneous or inconsistent with the regulation.” Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512, 114 S.Ct. 2381, 2386, 129 L.Ed.2d 405 (1994) (inner quotations and citations omitted). Thus, “[w]e accord an agency’s interpretation of its own regulations a ‘high level of deference,’ accepting it ‘unless it is plainly wrong.’ ” Gen. Elec. Co. v. EPA, 53 F.3d 1324, 1327 (D.C.Cir.1995) (quoting Gen. Carbon Co. v. OSHRC, 860 F.2d 479, 483 (D.C.Cir.1988)). B. The Requirement of a “Valid Foreign Export Permit” Appellants challenge the decision by FWS and APHIS to detain the mahogany shipments as arbitrary and capricious, claiming that it rests on impermissible interpretations of 50 C.F.R. §§ 23.12(a) and 23.14(a). We find no merit in this challenge. Section 23.12(a)(3)(i) provides: In order to import into the United States any wildlife or plant listed in appendix III from a foreign country that has listed such animal or plan in appendix III, a valid foreign export permit or re-export certificate issued by such country must be obtained prior to such importation. 50 C.F.R. § 23.12(a)(3)(f). APHIS detained the mahogany shipments at issue here, because, in its representations to FWS, “IBAMA indicated it had not determined whether the mahogany had been legally acquired, which is a prerequisite to the issuance of a" }, { "docid": "9278371", "title": "", "text": "2414. If we let courts decide what regulations mean, she warns, they might disagree, and it might take some time for higher courts to resolve those disagreements. But consistency and uniformity are hardly grounds on which Auer 's advocates should wish to fight. The judicial process is how we settle disputes about the meaning of written law, and our judicial system is more than capable of producing a single, uniform, and stable interpretation that will last until the regulation is amended or repealed. Meanwhile, under Auer courts often disagree about whether deference is warranted, see supra , at 2430 - 2431, and a regulation's \"meaning\" can be transformed with the stroke of a pen any time there is a new presidential administration. \"Consistency,\" \"uniformity,\" and stability in the law are hardly among Auer 's crowning achievements. V. Stare Decisis In the end, a majority declines to endorse Justice KAGAN's arguments and insists only that, even if Auer is not \"right and well-reasoned,\" we're stuck with it because of the respect due precedent. Ante , at 2423. But notice: While pretending to bow to stare decisis , the majority goes about reshaping our precedent in new and experimental ways. True, the majority admits, this Court has in the past accorded Auer deference \" 'reflexive[ly],' \" \"without significant analysis of the underlying regulation\" or \"careful attention to [its] nature and context,\" and encouraged lower courts to do the same. Ante , at 2414. But no more. From now on, the majority says, not only must judges \"exhaust all the 'traditional tools' of construction\" to decide whether the agency's interpretation is \"reasonable,\" they must also make \"an independent inquiry into whether the character and context of the agency interpretation\" justifies deference. Ante , at 2416. The majority candidly admits that it finds it impossible to \"reduce\" this new inquiry \"to any exhaustive test,\" so it settles for laying out some \"markers.\" Ante , at 2416 - 2417. What are the markers? We are told that courts should often-but not always-withhold deference from an interpretation offered by mid-level agency staff; often-but not always-withhold deference" }, { "docid": "18949285", "title": "", "text": "many “ways in which custody of children can be exercised.” Id., ¶ 71, at 447. D Adopting the view that the Convention provides a return remedy for violations of Tie exeat rights accords with its objects and purposes. The Convention is based on the principle that the best interests of the child are well served when decisions regarding custody rights are made in the country of habitual residence. See Convention Preamble, Treaty Doc., at 7. Ordering a return remedy does not alter the existing allocation of custody rights, Art. 19, id., at 11, but does allow the courts of the home country to decide what is in the child’s best interests. It is the Convention’s premise that courts in contracting states will make this determination in a responsible manner. Custody decisions are often difficult. Judges must strive always to avoid a common tendency to prefer their own society and culture, a tendency that ought not interfere with objective consideration of all the factors that should be weighed in determining the best interests of the child. This judicial neutrality is presumed from the mandate of the Convention, which affirms that the contracting states are “[fjirmly convinced that the interests of children are of paramount importance in matters relating to their custody.” Convention Preamble, id., at 7. International law serves a high purpose when it underwrites the determination by nations to rely upon their domestic courts to enforce just laws by legitimate and fair proceedings. To interpret the Convention to permit an abducting parent to avoid a return remedy, even when the other parent holds a ne exeat right, would run counter to the Convention’s purpose of deterring child abductions by parents who attempt to find a friendlier forum for deciding custodial disputes. Ms. Abbott removed A. J. A. from Chile while Mr. Abbott’s request to enhance his relationship with his son was still pending before Chilean courts. After she landed in Texas, the mother asked the state court to diminish or eliminate the father’s custodial and visitation rights. The Convention should not be interpreted to permit a parent to select which" } ]

[ { "docid": "22610377", "title": "", "text": "that where the donor retains control of the trust property the income is taxable to him. although paid to the donee. Corliss v. Bowers, supra. Cf. Helvering v. Clifford, supra. The dominant purpose of the revenue laws is the taxation of income to’those who earn or otherwise create the right to receive it and enjoy the benefit of it when paid. See, Corliss v. Bowers, supra, 378; Burnet v. Guggenheim, 288 U. S. 280, 283. The tax laid by the 1934 Revenue Act upon income “derived from . . . wages, or compensation for personal service, of whatever kind and in whatever form paid, . . .; also from interest . . .” therefore cannot fairly be interpreted as not applying to income derived from interest or compensation when he who is entitled to receive it makes use of his power to dispose of it in procuring satisfactions which he would otherwise procure ohly by the use of the money when received. It is the statute which taxes the income to the donor although paid to his donee. Lucas v. Earl, supra; Burnet v. Leininger, supra. True, in those cases the service which created the right to income followed the assignment, and it was arguable that in point of legal theory the right to the compensation vested instantaneously in the assignor when paid, although he never received it; while here the right of the assignor to receive the income antedated the assignment which transferred the- right and thus precluded such an instantaneous vesting. But the statute affords no basis for such, “attenuated subtleties!” The distinction was explicitly rejected as the basis of decision in Lucas v. Earl. It should be rejected here; for no 'more than in the Earl case can the purpose of the statute to tax the income to him who earns, or creates and enjoys it be escaped by “anticipatory arrangements however skilfully devised” to prevent-the income from vesting even for a second in the donor. Nor is it perceived that there is any adequate basis for distinguishing between the gift of interest coupons here and a" } ]

[ { "docid": "22780122", "title": "", "text": "Mr. Justice Stone delivered the opinion of the Court. In December, 1929, respondent, the life beneficiary of a testamentary trust, “assigned” to certain of her children specified amounts in dollars from the income of the trust for the year following the assignment. She made a like assignment to her children and a son-in-law in November, 1930. The question for decision is whether, under the applicable 1928 Revenue Act, 45 Stat. 791, the assigned income, which was paid by the trustees to the several assignees, is taxable as such to the assignor or to the assignees. The Commissioner ruled that the income was that of the life beneficiary and assessed a deficiency against her for the calendar years 1930 and 1931, which she paid. In the present suit to recover the tax paid as illegally exacted the district court below gave judgment for the taxpayer, which the Court of Appeals affirmed. 113 F. 2d 449. We granted certiorari, 311 U. S. 638, to resolve an alleged conflict in principle of the decision below with those in Lucas v. Earl, 281 U. S. 111; Burnet v. Leininger, 285 U. S. 136, and Helvering v. Clifford, 309 Ú. S. 331. Since granting certiorari we have held, following the reasoning of Lucas v. Earl, supra, that one who is entitled to receive, at a future date, interest or compensation for services and who makes a gift of it by an anticipatory assignment, realizes taxable income quite as much as if he had collected the income and paid it over to the object of his bounty. Helvering v. Horst, 311 U. S. 112; Helvering v. Eubank, 311 U. S. 122. Decision in these cases was rested on the principle that the power to dispose of income is the equivalent of ownership of it and that the exercise of the power to procure its payment to. another, whether to pay a debt or to make a gift, is within the reach of the statute taxing income “derived from any source whatever.” In the light of our opinions in these cases the narrow question presented by this" }, { "docid": "22615574", "title": "", "text": "of patent license contracts between members of the same family. It must therefore be determined whether this Cliff or d-Horst line of cases represents an intervening legal development which is pertinent to the problem raised by the assignment of the 1928 agreement and which makes manifest the error of the result reached in 1935 by the Board. If that is the situation, the doctrine of collateral estoppel becomes inapplicable. A different result is then permissible as to the royalties paid in 1937 under the agreement in question. But to determine whether the Clifford-Horst series of cases has such an effect on the instant proceeding necessarily requires inquiry into the merits of the controversy growing out of the various contract assignments from the taxpayer to his wife. To that controversy we now turn. Had the taxpayer retained the various license contracts and assigned to his wife the right to receive the royalty payments accruing thereunder, such payments would clearly have been taxable income to him. It has long been established that the mere assignment of the right to receive income is not enough to insulate the assignor from income tax liability. Lucas v. Earl, 281 U. S. 111; Burnet v. Leininger, 285 U. S. 136. As long as the assignor actually earns the income or is otherwise the source of the right to receive and enjoy the income, he remains taxable. The problem here is whether any different result follows because the taxpayer assigned the underlying contracts to his wife in addition to giving her the right to receive the royalty payments. It is the taxpayer’s contention that the license contracts rather than the patents and the patent applications were the ultimate source of the royalty payments and constituted income-producing property, the assignment of which freed the taxpayer from further income tax liability. We deem it unnecessary, however, to meet that contention in this case. It is not enough to trace income to the property which is its true source, a matter which may become more metaphysical than legal. Nor is the tax problem with which we are concerned necessarily answered" }, { "docid": "20770821", "title": "", "text": "collapsible corporation, after its dissolution and assignment of its assets to them, were taxable as ordinary income on the same theories the respondent advanced here. The District Court rejected the Government’s arguments and held that the gains there in question were taxable as capital gains. The petitioners here, of course, rely on that case. We think that conclusion was correct. The respondent’s determination of the deficiencies here is predicated on what he believes to be strong equitable considerations in his favor. While solicitude for the revenue may sometimes be an appealing basis on which to decide a particular tax case, it is often a treacherous one. And here, irrespective of what equitable arguments might be advanced in support of the respondent’s position, we think it clear that his determination has no support in law. The deficiencies in Docket Nos. 46372, 46373, 46375, 46376, and 46379 were determined on the theory that Terneen was not a bona fide corporation for Federal tax purposes. The respondent, however, did not argue that theory on brief, and we assume he now deems it to be without merit. Nor need we belabor that question. Suffice it to say, that the facts as set forth in our findings show clearly that Terneen was a bona fide corporation until August 1944, when it ceased doing business, liquidated, and commenced dissolution. Cf. Gregory v. Helvering, 293 U. S. 465 (1935); and Higgins v. Smith, 308 U. S. 473. (1940). The respondent’s alternative determination that Terneen did not dissolve for Federal tax purposes in 1944 is based on two arguments. His first argument is predicated on the holdings of such cases as: United States v. Joliet & Chicago R. Co., 315 U. S. 44 (1942); Helvering v. Horst, 311 U. S. 112 (1940); Helvering v. Eubank, 311 U. S. 122 (1940); and Lucas v. Early 281 U. S. 111 (1930). Those cases, of course, stand for the proposition that the one to whom income is truly attributable cannot escape the tax thereon by anticipatory assignments or other artificial devices which channel the actual receipt of the income directly into" }, { "docid": "22772384", "title": "", "text": "56 F. 2d 121 (C. C. A. 3), certiorari denied, 286 U. S. 565. By an assignment of future earnings- a taxpayer may not escape taxation upon his compensation in the year when he earns it. But when a taxpayer who makes his income tax. return on a cash basis assigns a right to money payable in the future for work already performed, we believe that he transfers a property right, and the money, when received by the assignee, is not income taxable to the assignor.” Accordingly, the Board of Tax Appeals was reversed;- and this, I think, is in accord with the statute and our opinions. The assignment in question denuded the assignor of all right to commissions thereafter to accrue under the contract with the insurance company. He could do nothing further in respect of them; they were entirely beyond his control. In no proper sense were they something either earned or received by him during the taxable year. The right to collect became the absolute property of the assignee without relation to future action by the assignor. A mere, right to collect future payments, for services already performed, is not presently taxable as “income derived” from such services. It. is property which may be assigned. Whatever the assignor receives as consideration may be his income; but the statute does not undertake to impose liability upon him because of payments to another under a contract which he had transferred in' good faith, under circumstances like those here disclosed. As in Helvering v. Horst, just decided, the petitioner relies upon opinions here; but obviously they arose upon facts essentially different fr;om those now presented. They do not support his contention. The general principles approved in Blair v. Commissioner, 300 U. S. 5, and applied in Helvering v. Horst, are controlling and call for affirmation of the judgment under review. The Chief Justice and Mb. Justice Roberts concur in this opinion." }, { "docid": "13364912", "title": "", "text": "the actual amount of the proceeds was undetermined on the date of the sale and on the date of the assignment. These circumstances bring this case well within the many cases upholding a tax upon the transferor who merely transfers the right to receive compensation from a sale of property already consummated or from services already rendered. In the tax lawyer’s primer are the cases of Lucas v. Earl, 281 U.S. 111, 50 S.Ct. 241, 74 L.Ed. 731 (1930); Helvering v. Horst, 311 U.S. 112, 61 S.Ct. 144, 85 L.Ed. 75 (1940); Helvering v. Eubank, 311 U.S. 122, 61 S.Ct. 149, 85 L.Ed. 81 (1940), and Harrison v. Sehaffner, 312 U.S. 579, 61 S.Ct. 759, 85 L.Ed. 1055 (1941). In Lucas v. Earl, the Supreme Court held that the breadwinner could not shift the incidence of the income tax on his future personal earnings merely by contracting to pay part of them to his wife. In Horst, the Court held that the taxpayer who retained the ownership of a bond but gave an interest coupon to his son was taxable on the interest collected by his son. In Eubank, the tax payer was liable for the income tax on renewal commissions earned by him as an insurance agent, the right to collect which had been assigned to another. In Harrison v. Schaffner, the Court held that a voluntary assignment by the income beneficiary of a trust of a percentage of the succeeding year’s trust income was an anticipatory assignment of income which remained taxable to the assignor. The philosophy underlying these cases is that the taxpayer has performed services or has a vested interest in property which gives him an unrestricted claim to compensation or income therefrom; the exercise of the unfettered power to dispose of that income is deemed analogous to its enjoyment or realization, thus resulting in a tax upon the assignor rather than upon the assignee who receives the income in fact. The same principle is found in cases involving corporations, where the assignment of the claim to income in the form of compensation for services or" }, { "docid": "22800536", "title": "", "text": "had’been in previous years, a scenario that the IRS had previously determined was a gift of property.' The only difference in the gift in the-year 1982 was that the Greenes -retained a right to that portion of income from the property which, under the amended Code provisions, was no longer deductible. Taxpayers gave away just as much of their property interest in the futures contracts in 1982 as they had for the prior eight years. They continued giving the Institute absolute control over the contracts and complete discretion to determine when and if to sell the contracts. There was no more “property” in the futures contracts that they could have given the Institute. As first enunciated by the Supreme Court in 1930, the anticipatory assignment of income doctrine holds that income is taxable to the person who earns it, and that such taxes cannot be avoided through “arrangement[s] by which the fruits are attributed to a different tree from that on which they grew.” Lucas v. Earl, 281 U.S. at 115, 50 S.Ct. at 241 (husband’s salary is income to him and therefore taxable to him notwithstanding a contract with his wife under which all of their earnings were to be held by both as joint tenants). Ten years later the Supreme Court ruled that this reasoning applied in the case of a gift of interest coupons clipped from negotiable bonds, delivered to a donee and in the same year paid at maturity. The Supreme Court held that this results in realization of income taxable to the donor, who created the right to receive the income and who enjoyed its benefits when paid. See Helvering v. Horst, 311 U.S. at 120, 61 S.Ct. at 148. As stated today, the anticipatory assignment of income doctrine provides that when a taxpayer has rights in the proceéds of donated property, and those rights have so matured or ripened that the taxpayer is entitled to the gain, he or she must pay á tax on those proceeds even though purporting to transfer the property to someone else. See Morgan Guar. Trust Co. v. United" }, { "docid": "22772383", "title": "", "text": "further services. On March 28, 1928, the petitioner assigned to the corporate trustee all commissions to become due him under the Aetna contracts. During the year 1933 the trustee collected by virtue of the assignments renewal commissions payable under the three agency contracts above mentioned, amounting to some $15,600. These commissions were taxed to the petitioner by the Commissioner, and the Board has sustained the deficiency resulting therefrom.” 110 F. 2d 738. The court below declared— “In the case at bar the petitioner owned a right to receive money for past services; no further services were required. Such a right, is assignable. At the time of assignment there was nothing contingent in the petitioner’s right, although the amount collectible in future years was still uncertain and contingent. But this may be equally true where the assignment transfers a right to income from investments, as in Blair v. Commissioner, 300 U. S. 5, and Horst v. Commissioner, 107 F. 2d 906 (C. C. A. 2), or a right to patent royalties, as in Nelson v. Ferguson, 56 F. 2d 121 (C. C. A. 3), certiorari denied, 286 U. S. 565. By an assignment of future earnings- a taxpayer may not escape taxation upon his compensation in the year when he earns it. But when a taxpayer who makes his income tax. return on a cash basis assigns a right to money payable in the future for work already performed, we believe that he transfers a property right, and the money, when received by the assignee, is not income taxable to the assignor.” Accordingly, the Board of Tax Appeals was reversed;- and this, I think, is in accord with the statute and our opinions. The assignment in question denuded the assignor of all right to commissions thereafter to accrue under the contract with the insurance company. He could do nothing further in respect of them; they were entirely beyond his control. In no proper sense were they something either earned or received by him during the taxable year. The right to collect became the absolute property of the assignee without relation to" }, { "docid": "11753678", "title": "", "text": "and provide that the tax could not be escaped by anticipatory arrangements and contracts however skillfully devised to prevent the same when paid from vesting even for a second in the man who earned it.” This was deemed to be the meaning of the statute as to compensation for personal service and the husband who earned the income was held to be subject to the tax. See Blair v. Commissioner, 300 U. S. 5. Respondent admits that there was no contractual relationship existing between petitioner and the Bell Syndicate and that no assign ment of future earnings was involved in any of the contracts. This being true, we fail tp see where Lucas v. Earl, sufra, has any application. Petitioner produced certain cartoons for Reynard. For these it paid bim a stipulated compensation, which was taxable to the petitioner as, such. For the use of the cartoons for syndication purposes the Bell Syndicate paid Reynard a stipulated minimum amount, which was taxable to Reynard as income arising from the use made by it. of the cartoons. With respect to the royalties of $9,482.30 paid by R K O, Qeorge Borgfeldt & Co., and Fred A. Wish, Inc., fpr the use in their respective businesses of certain characters created by petitioner, he contends that, having assigned his contracts with those corporations to Rey-nard on April 1, 1932, and thereby having transferred all of his rights under them to Reynard, such rights became its property and the subsequent income therefrom was its income. The parties have not discussed in their briefs the question of petitioner’s right to enter into the contracts in view of the contract he had with Reynard. We therefore assume that he had such right. It is well settled that an assignment of income does not relieve the assignor of the tax thereon. Lucas v. Earl, supra; Burnet v. Leininger, 285 U. S. 136. But where an income producing property is assigned or transferred the income subsequently arising therefrom is not taxable to the assignor. Blair v. Commissioner, supra; Nelson v. Ferguson, 56 Fed. (2d) 121; certiorari denied, 286" }, { "docid": "5366622", "title": "", "text": "taxed to the corporation, either as a capital gain or as ordinary income. It is obvious that the disputed items were not the same as cash to this cash basis corporation and thus were not income before its dissolution unless some other principle makes them so. The government relies on the doctrine of anticipatory assignment of income expounded by the Supreme Court in Lucas v. Earl, 1929, 281 U.S. 111, 50 S.Ct. 241, 74 L.Ed. 731; Helvering v. Horst, 1940, 311 U.S. 112, 61 S.Ct. 144, 85 L.Ed. 75, and U. S. v. Joliet and Chicago R. Co., 1942, 315 U.S. 44, 62 S.Ct. 442, 86 L.Ed. 658. The teaching of the cited cases was not based on the theory that the income was “already earned” at the time of assignment, but on the hypothesis that it was anticipated, used and realised before it was earned. The taxpayers were charged with the income because they retained the control of the property or agency by which it was earned and diverted the payments to others as a means of procuring the. satisfaction of their own wants. Thus they obtained the economic benefit which was tantamount to realization of the income. An effort to anticipatorily assign future earnings was stricken down by the court in Lucas v. Earl, supra, where a husband attempted by a continuing assignment, to vest title to a portion of his earnings in his wife. The court said, the fruit is not to be “attributed to a different tree” from that on which it grew. The husband “realized” the income because he retained the agency by which it was earned and controlled its disposition. The holding in Helvering v. Horst, supra [311 U.S. 112, 61 S.Ct. 147], was that when one who is the owner of a negotiable bond and of the investment which it represents makes a gift of the interest coupons, he has separated his right to interest pay- meats from his investment, procured the payment of the interest to his donee and received the full enjoyment of the economic benefits of the income. The court" }, { "docid": "5192923", "title": "", "text": "although not accruable (Cold Metal Process Co., supra), prior to the date of the assignment; and under the holdings in such cases as United States v. Joliet & Chicago R. Co., supra; Helvering v. Eubank, 311 U. S. 122 (1940); Helvering v. Horst, supra; and Lucas v. Earl, 281 U. S. 111 (1930), said income or fruit is taxable to the tree on which it grew. Petitioners argue that the above cases are distinguishable from the case at bar. They contend that here Cold Metal assigned both the patents and the right to income and that the doctrine of the above cases applies only where the transferor retains the agency which earns the income. We do not agree. While petitioners’ contention is correct with respect to income earned after the assignment, this Court has held that income which is earned prior to the assignment is taxable to the assignor even though he also transfers the agency which earned it. Estate of Bertha May Holmes, 1 T. C. 508 (appeal dismissed C. A. 2). Petitioners also contend that the theory of anticipatory assignment of income does not apply since there was no certainty that any part of the funds would be received because of the claims of the United States in the cancellation suit and in the royalty proceedings. Here again we do not agree. In this regard a case in point is Estate of S. W. Anthony, 5 T. C. 752, affd. (C. A. 10) 155 F. 2d 980. There the petitioner’s decedent and an oil company each owned an undivided one-half interest in an oil lease. The oil company drilled wells on the leased premises and made arrangements to sell the oil and gas to the Texas Company. A dispute arose because the decedent refused to pay the amount the oil company demanded as decedent’s share of the development and operating costs. As a result the oil company filed a lien with the Texas Company, and the latter impounded the sums due the decedent for oil and gas purchased. In 1937, the decedent gave his interest in the lease" }, { "docid": "22780123", "title": "", "text": "Lucas v. Earl, 281 U. S. 111; Burnet v. Leininger, 285 U. S. 136, and Helvering v. Clifford, 309 Ú. S. 331. Since granting certiorari we have held, following the reasoning of Lucas v. Earl, supra, that one who is entitled to receive, at a future date, interest or compensation for services and who makes a gift of it by an anticipatory assignment, realizes taxable income quite as much as if he had collected the income and paid it over to the object of his bounty. Helvering v. Horst, 311 U. S. 112; Helvering v. Eubank, 311 U. S. 122. Decision in these cases was rested on the principle that the power to dispose of income is the equivalent of ownership of it and that the exercise of the power to procure its payment to. another, whether to pay a debt or to make a gift, is within the reach of the statute taxing income “derived from any source whatever.” In the light of our opinions in these cases the narrow question presented by this record is whether it makes any difference in the application of the taxing statute that the gift is accomplished by the anticipatory assignment of trust income rather than of interest, dividends, rents and the like which are payable to the donor. Respondent, recognizing that the practical consequences of a gift by assignment, in advance, of a year’s income from the trust, are, so far as the use and enjoyment of the income are concerned, no different from those of the gift by assignment of interest or wages, rests his case on technical distinctions affecting the conveyanc ing of equitable interests. It is said that since by the assignment of trust income the assignee acquires an equitable right to an accounting by the trustee which, for many purposes, is treated by courts of equity as a present equitable estate in the trust property, it follows that each assignee in the present case is a donee of an interest in the trust property for the term of a year and is thus the recipient of income from" }, { "docid": "20770822", "title": "", "text": "he now deems it to be without merit. Nor need we belabor that question. Suffice it to say, that the facts as set forth in our findings show clearly that Terneen was a bona fide corporation until August 1944, when it ceased doing business, liquidated, and commenced dissolution. Cf. Gregory v. Helvering, 293 U. S. 465 (1935); and Higgins v. Smith, 308 U. S. 473. (1940). The respondent’s alternative determination that Terneen did not dissolve for Federal tax purposes in 1944 is based on two arguments. His first argument is predicated on the holdings of such cases as: United States v. Joliet & Chicago R. Co., 315 U. S. 44 (1942); Helvering v. Horst, 311 U. S. 112 (1940); Helvering v. Eubank, 311 U. S. 122 (1940); and Lucas v. Early 281 U. S. 111 (1930). Those cases, of course, stand for the proposition that the one to whom income is truly attributable cannot escape the tax thereon by anticipatory assignments or other artificial devices which channel the actual receipt of the income directly into the hands of others. The respondent places particular emphasis on the Joliet & Chicago R. Co. case. An examination of the holding therein will serve as well as any other to demonstrate the error of the respondent’s position. In that case, the Joliet & Chicago Railroad Company transferred all of its assets to a second railway company under an agreement whereby the second company agreed to pay Joliet stockholders a dividend. Joliet sought to escape tax liability by arguing that it had ceased doing business and that the dividends received by its stockholders were, in fact, paid by the second railway company and constituted income of the stockholders only. The Supreme Court rejected those arguments and held, that Joliet was first taxable on the total amount of the dividends ultimately paid to its stockholders. The significant distinction between the Joliet & Chicago R. Co. case, as well as the other similar above-cited anticipatory assignment cases, and the case before us here, is that in each of those cases the taxpayer to whom the income was" }, { "docid": "17156873", "title": "", "text": "general principles underlying the assignment of income doctrine are well established. It taxes income “to those who earn or otherwise create the right to receive it and enjoy the benefit of it when paid.” Helvering v. Horst, 311 U.S. 112, 119 (1940). Further, “the mere assignment of the right to receive income is not enough to insulate the assignor from income tax liability” where “the assignor actually earns the income or is otherwise the source of the right to receive and enjoy the income”. Commissioner v. Sunnen, 333 U.S. 591, 604 (1948). A person cannot escape taxation by anticipatory assignments, however skillfully devised, where the right to receive income has vested. Harrison v. Schaffner, 312 U.S. 579, 582 (1941). A mere transfer which is in form a gift of appreciated property may be disregarded for tax purposes if its substance is an assignment of a right to income. See Palmer v. Commissioner, 62 T.C. 684, 692 (1974), affd. on other grounds 523 F.2d 1308 (8th Cir. 1975). However, the precise contours of the anticipatory assignment of income doctrine in the context of charitable contributions of appreciated property have been the subject of some contention. In Palmer, the taxpayer exercised effective control over both a corporation and a tax-exempt foundation that he had organized. The taxpayer sought to transfer a certain asset, a college, from the corporation to the foundation in a way that would enable the taxpayer to maintain control over the direction and operation of the college and that would yield the most favorable tax consequences. To that end, the taxpayer caused the foundation to acquire certain shares of stock in the corporation which were held by a trust in which he was a trustee and income beneficiary. The taxpayer then transferred shares of stock that he owned directly to the foundation so that it held 80 percent of the issued and outstanding shares of the corporation. Finally, the board of directors and the shareholders of the corporation approved the redemption of the foundation’s stock in exchange for the operating assets of the college. The Commissioner argued that there" }, { "docid": "10498303", "title": "", "text": "the rendition of the services involved, results in taxable income under the rules announced in the cases of Lucas v. Earl, 281 U.S. 111, 50 S.Ct. 241, 74 L.Ed. 731; Helvering v. Horst, 311 U.S. 112, 61 S.Ct. 144, 85 L.Ed. 75, 131 A.L.R. 655; Helvering v. Eubank, 311 U.S. 122, 61 S.Ct. 149, 85 L.Ed. 81; and Harrison v. Schaffner, 312 U.S. 579, 61 S.Ct. 759, 85 L.Ed. 1055. The Earl case arises out of an assignment of salary and attorneys fees by a husband to his wife in advance of the rendition of the services. It was claimed that the husband never beneficially received them, but the Court refused to follow this reasoning and held that “the tax could not be escaped by anticipatory arrangements and contracts however skilfully devised to prevent the salary when paid from vesting even for a second in the man who earned it”. The gist of the decision appears to be that the salary was accepted, and the employee’s dominance over it amounted to his receipt of it. In the Horst case the taxpayer gave away interest bearing coupons, and the donee collected the interest during the taxpayer’s taxable year. A conflict was asserted between the Circuit Court decision and the case of Lucas v. Earl, supra. In commenting upon the rule that income is not taxable until “realized”, the Court [311 U. S. 122, 61 S.Ct. 147, 85 L.Ed. 75, 131 A.L.R. 655] asserted that such rule is a rule of postponement of the tax to the final event of enjoyment, saying “income is ‘realized’ by the assignor * * * who owns or controls the source * * * controls the disposition * * * and diverts. * * * The donor [taxpayer] here, * * * has * * * by his act, procured payment of the interest, as a valuable gift * * *. Such a use * * * would seem to be the enjoyment of the income * * In the Eubank case a life insurance agent, after terminating agency contracts, made assignments of renewal commissions payable" }, { "docid": "10392114", "title": "", "text": "could not be ascertained. This, however, does not establish that the basis for the payments received in 1937, 1938, and 1939 had not been completely recovered in prior years, as it undoubtedly was. Hence the payments received in those years were all taxable. The only question is whether they are taxable as ordinary income or as capital gain. Clearly they are capital gain, since, as we have seen, they are periodic payments for the property sold in 1931. Revenue Act of 1928, sec. 101. 4. Because the taxpayer, by reason of the gifts in 1935 to his wife and in trust for his sons of fractions of the payments to be made to him by Steel, failed in 1937, 1938, and 1939 to receive these amounts himself, he omitted them from the income reported on his returns. The Commissioner, in making the deficiency determination, added them to petitioner’s income for those years, and the taxpayer protests. Since, as we are holding, all additional amounts of the periodic receipts were income classed as capital gains, the effect of the gifts is merely that of assignments of the right to receive future income. By this means the taxpayer no more escapes the burden of the tax than he would if he had assigned the right to receive future compensation for services (Lucas v. Earl, 281 U. S. 111) or the interest from retained bonds (Helvering v. Horst, 311 U. S. 112). There was no gift or assignment of a capital fund, as in Blair v. Commissioner, 300 U. S. 5, whereby the transferor taxpayer transferred the property source of the income as well as the income itself — the tree as well as its fruit. There was only a transfer of the “royalty,” that is, of the forthcoming payments for the property, Lime shares, which the taxpayer had sold and the gain upon which was his when realized. The tax upon such gain he could not shift by an anticipatory assignment. It must be held therefore that the taxpayer’s income included not only the capital gain which he himself actually received from" }, { "docid": "22333455", "title": "", "text": "that income is diverted to some other person or entity. Such arrangements, known to the tax law as “anticipatory assign ments of income,” have frequently been held ineffective as means of avoiding tax liability. The seminal precedent, written over 40 years ago, is Mr. Justice Holmes’ opinion for a unanimous Court in Lucas v. Earl, 281 U. S. 111 (1930). There the taxpayer entered into a contract with his wife whereby she became entitled to one-half of any income he might earn in the future. On the belief that a taxpayer was accountable only for income actually received by him, the husband thereafter reported only half of his income. The Court, unwilling to accept that a reasonable construction of the tax laws permitted such easy deflection of income tax liability, held that the taxpayer was responsible for the entire amount of his income. The basis for the Court’s ruling is explicit and controls the case before us today: “[T]his case is not to be decided by attenuated subtleties. It turns on the import and reasonable construction of the taxing act. There is no doubt that the statute could tax salaries to those who earned them and provide that the tax could not be escaped by anticipatory arrangements and contracts however skilfully devised to prevent the salary when paid from vesting even for a second in the man who earned it. That seems to us the import of the statute before us and we think that no distinction can be taken according to the motives leading to the arrangement by which the fruits are attributed to a different tree from that on which they grew.” Id., at 114-115. The principle of Lacas v. Earl, that he who earns income may not avoid taxation through anticipatory arrangements no matter how clever or subtle, has been repeatedly invoked by this Court and stands today as a cornerstone of our graduated income tax system. See, e. g., Commissioner v. Harmon, 323 U. S. 44 (1944); United States v. Joliet & Chicago R. Co., 315 U. S. 44 (1942); Helvering v. Eubank, 311 U. S." }, { "docid": "5192922", "title": "", "text": "the taxable year invloved, we do not think it clearly falls within the above definition of a corporation “not in existence” for said definition specifically states that a corporation is still in existence if it has valuable claims for which it will bring suit. For reasons hereinafter stated, the proceeds of the claims, at least in part, will be constructively received by the corporation even though it has assigned the right to the proceeds to its sole stockholder. The next question for decision is whether Cold Metal is taxable on all or any portion of the $15,438,220.71 received by the Trustee in 1949. Respondent determined that the full amount was taxable to Cold Metal, and petitioners contend that Cold Metal is not taxable on any portion thereof. In our opinion that portion of the $15,438,220.71 representing royalties and amounts paid for infringement of patents on production prior to December 29, 1945, the date of the assignment of the assets to the Trustee, is properly taxable to Cold Metal. This amount (over $12,000,000) represents income earned, although not accruable (Cold Metal Process Co., supra), prior to the date of the assignment; and under the holdings in such cases as United States v. Joliet & Chicago R. Co., supra; Helvering v. Eubank, 311 U. S. 122 (1940); Helvering v. Horst, supra; and Lucas v. Earl, 281 U. S. 111 (1930), said income or fruit is taxable to the tree on which it grew. Petitioners argue that the above cases are distinguishable from the case at bar. They contend that here Cold Metal assigned both the patents and the right to income and that the doctrine of the above cases applies only where the transferor retains the agency which earns the income. We do not agree. While petitioners’ contention is correct with respect to income earned after the assignment, this Court has held that income which is earned prior to the assignment is taxable to the assignor even though he also transfers the agency which earned it. Estate of Bertha May Holmes, 1 T. C. 508 (appeal dismissed C. A. 2). Petitioners also" }, { "docid": "10498304", "title": "", "text": "In the Horst case the taxpayer gave away interest bearing coupons, and the donee collected the interest during the taxpayer’s taxable year. A conflict was asserted between the Circuit Court decision and the case of Lucas v. Earl, supra. In commenting upon the rule that income is not taxable until “realized”, the Court [311 U. S. 122, 61 S.Ct. 147, 85 L.Ed. 75, 131 A.L.R. 655] asserted that such rule is a rule of postponement of the tax to the final event of enjoyment, saying “income is ‘realized’ by the assignor * * * who owns or controls the source * * * controls the disposition * * * and diverts. * * * The donor [taxpayer] here, * * * has * * * by his act, procured payment of the interest, as a valuable gift * * *. Such a use * * * would seem to be the enjoyment of the income * * In the Eubank case a life insurance agent, after terminating agency contracts, made assignments of renewal commissions payable to him for services rendered in procuring policies. The Court held the renewal commissions taxable to the assignor. Here again the dominance over the fund by the assignor was shown. In the Schaffner case the life beneficiary of a trust assigned to children income from the trust for the year following the assignment. In holding that the income was taxable to the assignor the Court analyzes and compares these three cited cases. The Court said [312 U.S. 579, 61 S.Ct. 760, 85 L.Ed. 1055], “Since granting certiorari we have held, following the reasoning of Lucas v. Earl, supra, that one who is entitled to receive at a future date, interest or compensation for services and who makes a gift of it by an anticipatory assignment, realizes taxable income quite as much as if he had collected the income and paid it over to the object of his bounty. Helvering v. Horst, 311 U.S. 112, 61 S.Ct. 144, 85 L.Ed. 75, 131 A.L.R. 655; Helvering v. Eubank, 311 U.S. 122, 61 S.Ct. 149, 85 L.Ed. 81.”" }, { "docid": "10498305", "title": "", "text": "to him for services rendered in procuring policies. The Court held the renewal commissions taxable to the assignor. Here again the dominance over the fund by the assignor was shown. In the Schaffner case the life beneficiary of a trust assigned to children income from the trust for the year following the assignment. In holding that the income was taxable to the assignor the Court analyzes and compares these three cited cases. The Court said [312 U.S. 579, 61 S.Ct. 760, 85 L.Ed. 1055], “Since granting certiorari we have held, following the reasoning of Lucas v. Earl, supra, that one who is entitled to receive at a future date, interest or compensation for services and who makes a gift of it by an anticipatory assignment, realizes taxable income quite as much as if he had collected the income and paid it over to the object of his bounty. Helvering v. Horst, 311 U.S. 112, 61 S.Ct. 144, 85 L.Ed. 75, 131 A.L.R. 655; Helvering v. Eubank, 311 U.S. 122, 61 S.Ct. 149, 85 L.Ed. 81.” Here again the dominance over the fund and taxpayer’s direction show that he beneficially received the money by exercising his right to divert it to a use. Now, turning again to the instant case. The findings of the Board, supported by the evidence, are to the effect that the taxpayer did not receive the money, and that he did not direct its disposition. All that he did was to unqualifiedly refuse to accept any further compensation for his services with the suggestion that the money be used for some worth while purpose. So far as the taxpayer was concerned, the corporation could have kept the money. All arrangements with the University of California regarding the donation to the Foundation were made by the corporation, the taxpayer participating therein only as an officer of the corporation. In this circumstance we cannot say as a matter of law that the money was beneficially received by the taxpayer and therefore subject to the income tax provisions of the statute. It should be kept in mind that there is" }, { "docid": "19937223", "title": "", "text": "decisions which tax the anticipatory assignment of income as ordinary income to the assignor. Helvering v. Eubank, 311 U.S. 122; Helvering v. Horst, 311 U.S. 112; Harrison v. Schaffner, 312 U.S. 579; Lucas v. Earl, 281 U.S. 111. We have no dispute with the principles expounded in these decisions, but we feel that defendant’s reliance on these principles in the instant action is misplaced. The cited cases on anticipatory assignments of income have arisen primarily in the context of gratuitous, intrafamily assignments, rather than as here from arm’s-length bargaining transactions. Here the income to be earned was attributable to Bonnin rather than plaintiff. Taxpayer, in a bona fide sale, purchased the right to receive this income if and when it became due.. Hence, we are not concerned with the problem of income splitting to avoid taxation or of assigning income while retaining control of the corpus. Thus, cases cited in this area are inapposite because we first must determine whether the right assigned was income or property. If it is income, then the position taken by the defendant is correct and it must prevail. However, if the right assigned is property, within the framework of the statutes, then the taxpayer must prevail. In an arm’s-length transaction the assignor of a personal services contract right is taxed on the consideration received, and the assignee is taxed on any amount ultimately collected under the assignment in excess of his cost. Cotlow v. Commissioner, 228 F. 2d 186. Since, absent the gift to charity, taxpayer would be taxed on this excess upon receipt either as ordinary income or capital gain, we are concerned here with determining which treatment is applicable. If taxpayer’s economic gain is “property” it qualifies for the favorable tax consequences on gifts of “property” provided for under the Treasury regulations. In our opinion, save for the fact our problem involves a charitable deduction, other courts would reach the same conclusion by approaching the issue on the basis that the transaction did not involve a sale or exchange. P. N. Fahey, 16 T.C. 105; Hale v. Helvering, 85 F. 2d 819." } ]